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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hunter v. Philip Morris USA Inc. (12/18/2015) sp-7071
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DOLORES HUNTER, as personal )
representative for the ESTATE OF )
Supreme Court Nos. S-15126/15135
BENJAMIN G. FRANCIS, )
)
Superior Court No. 4BE-06-00407 CI
Appellant and
)
Cross-Appellee, )
O P I N I O N
v. )
)
No. 7071 - December 18, 2015
PHILIP MORRIS USA INC., )
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Eric Smith, Judge.
Appearances: Don C. Bauermeister, Burke & Bauermeister,
PLLC, Bremerton, Washington, for Appellant/Cross-
Appellee. Jeffrey M. Feldman and Susan Orlansky, Feldman
Orlansky & Sanders, Anchorage, Steven S. Tervooren,
Hughes Gorski Seedorf Odsen & Tervooren, LLC,
Anchorage, Geoffrey J. Michael, Arnold & Porter, LLP,
Washington, D.C., Patrick J. Gregory, Shook, Hardy &
Bacon, LLP, SanFrancisco, California, and Stanley D. Davis,
Shook, Hardy & Bacon, LLP, Kansas City, Missouri, for
Appellee/Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Dolores Hunter, the personal representative of the estate of Benjamin G.
Francis, appeals from a series of orders following a jury verdict in a wrongful death,
products liability, and fraud action against Philip Morris USA Inc. resulting from
Francis's death from lung cancer. Following the verdict, Hunter moved for a new trial
on the basis of evidentiary rulings at trial and on the basis that the verdict was against the
weight of the evidence. The superior court initially granted Hunter's motion for a new
trial based on the weight of the evidence but then granted Philip Morris's motion to
reconsider, vacated its first order and denied Hunter's motion for a new trial. Because
the superior court's orders applied a test that is inconsistent with the "weight of the
evidence" new trial standard we have established to guide trial courts, we reverse and
remand for renewed consideration of Hunter's motion.
II. FACTS AND PROCEEDINGS
A. Background And Pre-Trial Proceedings
Benjamin Francis died of lung cancer in December 2004. Dolores Hunter,
the personal representative of his estate, filed a wrongful death action against Philip
Morris USA Inc., Altria Group, Inc., and the Alaska Commercial Company, alleging that
the cigarettes they collectively sold to Francis were responsible for his death and that
they were liable under various theories related to fraud and products liability. Philip
Morris answered, and the parties prepared for trial.1
In the months before the trial, both parties filed a number of motions in
limine. Of particular relevance in this appeal is a Philip Morris motion that sought to
preclude Hunter from referring to the findings of fact and conclusions of law from a
1
The claims against Philip Morris's co-defendants were dismissed before
trial.
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----------------------- Page 3-----------------------
2
federal lawsuit, United States v. Philip Morris USA Inc. In that case, Judge Gladys
Kessler of the United States District Court for the District of Columbia issued an
extensive opinion finding that Philip Morris and other cigarette manufacturers had
violated the federal Racketeer Influenced and Corrupt Organizations (RICO) Act by
jointly and fraudulently deceiving the public about the health consequences of smoking
and secondhand smoke, the addictiveness of nicotine, the health benefits of "light"
3 In addition to
cigarettes, and design choices aimed at sustaining nicotine addiction.
finding Philip Morris liable in that case, Judge Kessler enjoined the corporation from
engaging in a wide variety of practices, including "conveying any express or implied
health message or health descriptor for any cigarette brand."4 To that end, Judge Kessler
specified that words such as "low tar," "light," "ultra light," "mild," "natural," and
related terms could not be used in any branding, advertising or other informational
material.5
In its motion in limine, Philip Morris argued that references to Judge
Kessler's injunction and findings of fact and conclusions of law would constitute
inadmissible hearsay and otherwise confuse and unduly prejudice the jury. It therefore
requested that the superior court rule that Hunter would not be permitted to introduce the
findings directly, have a witness reference the findings, or cross-examine a defense
witness using the findings.
Hunter opposed Philip Morris's motion. She claimed that she did not "seek
to have Judge Kessler's Opinion, Findings of Fact, Conclusions of Law or granting of
2 449 F. Supp. 2d 1 (D.D.C. 2006).
3
Id. at 27.
4
Id. at 938.
5 Id.
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----------------------- Page 4-----------------------
remedies admitted into evidence in this action, unless the door is open to such." But she
did request that the superior court "enforce Judge Kessler's injunction" highlighting
language from the opinion in the federal case that "prohibited [the defendants in that
case] from making, or causing to be made in any way, any material, false, misleading or
deceptive statement or representation concerning cigarettes that is disseminated in the
6 Her motion concluded that, "[a]s a matter of comity, [the superior court]
United States."
must enforce Judge Kessler's injunction" and that Philip Morris's counsel and witnesses
therefore "should be prohibited fromintroducing evidence orargumentthat involves any
of the findings made by Judge Kessler."
The superior court granted Philip Morris's motion in limine, concluding
that the judicial findings at issue were inadmissible hearsay. The superior court's order
noted that "it is not at all clear what plaintiff means in asking the court to 'enforce' the
injunction," and expressed the court's "considerable doubt it has the authority to enforce
an injunction entered by a federal court when plaintiff is not a party to the case."
B. Trial And Verdict
The trial began in October 2011. Although it lasted nearly a month, the
testimony from one witness is most relevant to Hunter's current appeal. During Philip
Morris's defense, it called Dr. Peter Lipowicz, a senior principal scientist at Altria Client
Services,7 as an expert witness. Among the topics that Dr. Lipowicz testified about on
direct examination was Philip Morris's design effort, starting in the 1950s, to "make a
cigarette somewhat less dangerous and a little bit safer." Dr. Lipowicz testified that he
believed that Philip Morris's lines of cigarettes with reduced tar and nicotine yields,
6 Id. at 932-33.
7
The Altria Group owns Philip Morris USA and other tobacco operating
LTRIA, http://www.altria.com/Our-Companies/At-A-Glance
companies. At-A-Glance , A
/Pages/default.aspx (last visited December 11, 2015).
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----------------------- Page 5-----------------------
including Marlboro Lights, had succeeded in that effort, and that "it was really promoted
by the public health community" for years.
During cross-examination, Hunter's counsel turned to the reasons that
Philip Morris no longer sold cigarettes under the name Marlboro Lights. Dr. Lipowicz
testified that Philip Morris "had to take the word 'lights' off our cigarettes [as required
by] the FDA." Hunter's counsel asked why federal law banned the descriptor "light,"
which elicited Dr. Lipowicz's testimony that he was "not sure [of] all the foundation for
the law." Hunter's counsel then asked, "Are you telling us that it's not even legal to put
'lights' on the package anymore?" at which point Philip Morris's counsel objected. At
that point, the superior court ended Dr. Lipowicz's testimony for the day and discussed
Philip Morris's objection and the questions Hunter's counsel planned to ask
Dr. Lipowicz the next morning. The superior court identified two lines of conflict
between the parties: whether Dr. Lipowicz's testimony had violated Judge Kessler's
injunction, andwhether Hunter's counselcouldcross-examineDr.LipowiczaboutJudge
Kessler's findings and the findings Congress had made in the Family Smoking
Prevention and Tobacco Control Act, the 2009 legislation that banned the "light"
descriptor. Hunter's counsel asked to submit a brief addressing both topics, which the
superior court allowed, and Philip Morris's counsel took the opportunity to argue that
the Congressional findings were both inadmissible as evidence of the facts Congress
found and beyond the scope of Dr. Lipowicz's testimony on direct examination.
The next morning Hunter's counsel moved "for judicial notice and
enforcement of [Judge Kessler's] injunction." This motion first argued that
Dr. Lipowicz's testimony on direct examination had violated Judge Kessler's injunction
against "falsely den[ying] . . . that its light or low tar descriptors are misleading," and
requested that the superior court enforce the injunction by offering a corrective
instruction. The motion then argued that "Congress has banned 'light' and similar
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----------------------- Page 6-----------------------
descriptors because they are misleading," and quoted Congress's finding that "many
smokers mistakenly believe that 'low tar' and 'light' cigarettes cause fewer health
problems than other cigarettes." 8
At the start of the day's proceedings, the parties again discussed the
evidence Hunter's counsel could use in his cross-examination of Dr. Lipowicz. The
superior court determined that it lacked authority to enforce Judge Kessler's injunction,
as it had suggested in its pre-trial order. The superior court discussed the admissibility
of Congress's findings in greater depth and challenged Philip Morris's counsel's
characterization of those findings as hearsay. The superior court concluded the
discussion by addressing Hunter's counsel: "Given the complications of the issue, I
believe that the witness was asked yesterday if those words had to be taken off, and his
answer was, 'Yes, Congress told us to.' And I'm going to - Mr. Bauermeister, you can
- you'll just leave it at that."
Hunter's counsel resumed his cross-examination of Dr. Lipowicz. In
accordance with the trial court's orders, he did not directly ask why Congress and the
FDA had banned certain descriptors. But he did cross-examine Dr. Lipowicz using a
2010 report from the National Cancer Institute that concluded that the existence and
marketing of low-yield cigarettes may have increased the number of deaths due to
smoking by encouraging smokers with health concerns to switch rather than quit
altogether. Dr. Lipowicz agreed that Philip Morris did not publicly contest the National
Cancer Institute's conclusions, which were read to the jury.
At the conclusion of the trial, the jury returned a special verdict form. The
jury found that Philip Morris's product was not defective. But it further found that Philip
8
Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31,
§ 2(38), 123 Stat. 1776, 1780 (2009).
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----------------------- Page 7-----------------------
Morris had made one or more false or misleading statements regarding the dangers of
cigarette smoking, that it had known the statements were false or misleading when it
made them, and that it intended or had reason to expect that Francis would rely on them.
Finally, it found that Francis had not seen or heard any false or misleading statements by
Philip Morris and therefore returned a verdict for Philip Morris.
C. The Superior Court's First Order, Granting Hunter's Motion For A
New Trial
Hunter moved for a new trial under Alaska Civil Rule 59 on the grounds
that the jury had been misled by false evidence, that Philip Morris's defense had violated
an injunction issued by another court, and that the jury's findings were against the clear
weight of the evidence. Hunter first asserted that the court's evidentiary rulings at trial
had impermissibly restricted her counsel's ability to cross-examine Dr. Lipowicz about
Judge Kessler's findings, and that as a result Dr. Lipowicz had been able to mislead the
jury about whether Congress had found that Philip Morris acted fraudulently. But the
superior court rejected this argument.
The superior court reasoned that Judge Kessler's findings were "both
hearsay and not binding on either this court or the jury," and that Hunter's "planned
cross examination would have rested on the factual accuracy of Judge Kessler's
findings." The superior court observed that "the fact that Dr. Lipowicz knew about
[Judge Kessler's] findings had no bearing on the content of his testimony unless one
compared his testimony to the content of the findings themselves." The superior court
thus rejected Hunter's arguments that the results of the suit in Judge Kessler's court
should have been admissible as an exception to hearsay offered for a purpose other than
the truth of the matter asserted. Additionally, the superior court reasoned that because
the injunction was stayed when Philip Morris removed the descriptor "light" from its
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----------------------- Page 8-----------------------
products, Dr. Lipowicz could have testified truthfully that the injunction had not been
the cause of that change.
But the superior court granted Hunter's motion for a new trial on the
ground that the jury's finding that Francis did not see or hear any false or misleading
statements was against the weight of the evidence. Its order set out the standard trial
courts should consider when deciding whether to grant a new trial by citing and quoting
9 and Hogg v. Raven
this court's opinions in Kava v. American Honda Motor Co.
Contractors, Inc.10 Specifically, the superior court quoted the following language from
Kava :
[A] trial court may set aside a verdict and order a new trial in
the interest of justice if the verdict is against the weight of the
evidence. In deciding a motion for a new trial on this basis,
the court must use its discretion and independently weigh the
evidence. A court may set aside a verdict as being against the
weight of the evidence even when "there is substantial
evidence to support it." The decision is a matter for the trial
court's discretion.[11]
In a footnote, the superior court examined the court of appeals' decision in
12
Taylor v. State. Quoting that decision's statement that a new trial is available "only
when the evidence supporting that verdict '[is] so slight and unconvincing as to make the
9 48 P.3d 1170 (Alaska 2002).
10 134 P.3d 349 (Alaska 2006).
11 This quotation in the superior court order is from Kava, 48 P.3d at 1176.
The internal quotation is from 11 CHARLES ALAN WRIGHT ET AL ., F EDERAL PRACTICE
AND PROCEDURE § 2806, at 65 (2d ed. 1995).
12 262 P.3d 232 (Alaska App. 2011).
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----------------------- Page 9-----------------------
13
verdict plainly unreasonable and unjust,' " the superior court concluded that "[t]he
standard used in reviewing a motion for a new trial in the context of a criminal trial
actually is somewhat more deferential than that used in a civil trial."
The superior court then applied its understanding of the new trial standard
to Hunter's contention that the jury's finding that Francis had not seen or heard any false
or misleading statements by Philip Morris was against the weight of the evidence. The
court wrote that "Francis clearly was exposed to the descriptor 'light,' " based on its
inclusion on the packaging of Marlboro Lights, and that
[14] Mr. Francis
as defendant admitted at oral argument,
switched to light cigarettes because they were less harsh and
because he thought they were better for him. He accordingly
had to have been exposed to . . . information that, as
discussed below, had to have come to him directly or
indirectly from [Philip] Morris.
The superior court thus reasoned that the verdict "therefore necessarily was against the
weight of the evidence unless the jury found that the marketing of light cigarettes was
not false or deceptive."
The superior court found that, "[w]hile a close call, . . . any finding by the
jury that the campaign was [not] deceptive was against the weight of the evidence." Its
order surveyed the evidence Hunter's experts presented on the issue of light cigarette
marketing and weighed it against Philip Morris's defense, particularly the expert
testimony of Dr. Peter Lipowicz. It concluded that
[v]iewing the evidence as a whole in the court's role as
effectively the thirteenth juror, the court finds that
Dr. Lipowicz's testimony was not sufficiently credible to
13 This quotation in the superior court order is from Taylor, 262 P.3d at 234.
The internal quotation is from Howell v. State , 917 P.2d 1202, 1212 (Alaska App. 1996).
14 Philip Morris denies having made such an admission.
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----------------------- Page 10-----------------------
undercut, much less to overcome, the substantial evidence
indicating that defendant madefalseor misleading statements
regarding the health risks posed by light cigarettes. Any
finding by the jury to the contrary therefore went against the
weight of the evidence.
The order therefore granted Hunter's motion for a new trial.
D. TheSuperiorCourt's SecondOrder, Granting Philip Morris's Motion
For Reconsideration And Denying A New Trial
Philip Morris moved for the superior court to reconsider its decision. Its
motion alleged that the court had used the incorrect legal standard in its order granting
15 which
a new trial. The motion instead offered language from Mullen v. Christiansen ,
Philip Morris argued demonstrated that "[a] new trial may be granted only 'where the
evidence to support the verdict is completely lacking or is so slight and unconvincing as
to make the verdict plainly unreasonable and unjust.' " Philip Morris further disagreed
that the standard for granting a new trial on the ground that the verdict was against the
weight of the evidence differs in the civil and criminal contexts.
Philip Morris's motion for reconsideration also contested the superior
court's findings regarding the weight of the evidence. It argued that substantial credible
evidence supported its contentions that light cigarettes do present lesser health risks and
that Philip Morris and the public health community believed themto present lesser health
risks at the time any statements were made. It also argued that the court erred in
concluding both that Francis understood theterm"light"to carry health connotations and
that he had acted on such information. The motion concluded that the superior court had
erred in its "wholesale rejection" of Philip Morris's "substantial and credible evidence,"
and that the order granting a new trial evinced a personal disagreement with the verdict,
rather than a finding that it was against the weight of the evidence.
15
642 P.2d 1345 (Alaska 1982).
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----------------------- Page 11-----------------------
Hunter's opposition pointed out that the language from Mullen that Philip
Morris quoted actually stated the standard an appellate court uses in its review of a trial
court's denial of a motion for a new trial, rather than the standard the trial court is to use
in considering such a motion in the first instance. Hunter maintained that the superior
court's order granting a new trial had stated and applied the correct legal standard. She
further argued that the superior court had correctly determined that the verdict was
against the weight of the evidence.
The superior court granted Philip Morris's motion for reconsideration,
vacating its prior order and denying Hunter's motion for a new trial. The court explained
that it "grant[ed] reconsideration because it . . . more thoroughly evaluated the relevant
case law and . . . concluded that it did not apply the correct standard" in its order granting
a new trial.
Thesuperior court's secondorderfirst evaluated Mullen and concluded that
the decision "explicitly identif[ied] a standard for the trial court to use in deciding
whether to grant a new trial." But because the court found that Mullen had "never been
cited as the applicable standard to be applied by a trial court" and was "very difficult to
square with the [Supreme] Court's repeated holdings, for example in Kava, that a motion
for a new trial can be granted even if 'substantial evidence' supports the verdict," the
court "conclude[d] that it would not be appropriate to rely on Mullen as the relevant
standard in this case."
The superior court again examined the court of appeals' decision in Taylor,
which it characterized as using the language from Mullen and "contain[ing] some of the
conceptual difficulties . . . with respect to reconciling Mullen and Kava ."
Next, the superior court explained that "[i]n its order granting a new trial
in this case, [it had] essentially reviewed the evidence in an almost de novo fashion," and
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----------------------- Page 12-----------------------
noted that it was now convinced "that it [had] erred in doing so," because in evaluating
such motions "the court must keep in mind the importance of the jury process."
The superior court looked to our cases interpreting Rule 59 for further
guidance and focused on quotations and citations from treatises on civil procedure. In
16 17
and in a footnote in Sloan v. Atlantic Richfield Co., we cited and
Hash v. Hogan
quoted Moore's Federal Practice;18 the superior court reproduced these quotations. In
footnotes in Kava and Hogg, we cited Wright & Miller's Federal Practice and
Procedure;19 the superior court included a quotation from that source as well.20 The
superior court also considered insight from cases in other jurisdictions, including Miller
21 a federal district court decision we cited in Ahlstrom v.
v. Pennsylvania Railroad Co.,
22 23
Cummings, and Storey v. Camper, a decision by the Supreme Court of Delaware.
The superior court used all of these sources to synthesize a new standard
for new trial motions:
16 453 P.2d 468 (Alaska 1969).
17 541 P.2d 717 (Alaska 1975).
18 6A JAMES MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 59.08[5], at
59-155-58 (2d ed. 1974).
19 11 CHARLES ALAN WRIGHT ET AL ., F EDERAL PRACTICE AND PROCEDURE
§ 2806, at 65 (2d ed.1995).
20 As discussed below, the portion of Wright & Miller that the superior court
quoted is not the portion of Wright & Miller that we cited in Kava or Hogg .
21 161 F. Supp. 633 (D.D.C. 1958).
22 388 P.2d 261, 262 n.2 (Alaska 1964).
23 401 A.2d 458 (Del. 1979).
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[I]n deciding whether to order a new trial, a trial court may
not simply reweigh the evidence. Rather, a trial court may
only grant a motion for a new trial pursuant to Civil Rule 59
if, after independently evaluating all of the evidence in effect
as the thirteenth juror, the court concludes that the weight of
the evidence preponderates so heavily against the verdict that
the court is left with the definite and firm conviction that a
mistake has been made.
The superior court applied this new standard to the case at hand and
concluded that "[w]hile again a close call, . . . a new trial [was] not warranted." The
court found that Hunter had "made a strong showing that Mr. Francis was indeed
exposed to misleading information regarding light cigarettes," and that "Mr. Francis had
to havebeen exposed toinformation regardingwhether light cigarettes weresafebecause
he chose to smoke them in part because he believed they were safer." It also recounted
that "counsel for defendant had conceded [that Mr. Francis's choice was based on
perceived greater safety] at oral argument on the motion for new trial." However, the
court also found that Philip Morris "presented considerable evidence to the contrary,"
including evidence of the public health community's historical views and "testimony
from a live expert witness, Dr. Lipowicz." The superior court found that it "[could not]
say as a matter of law that a rational juror could not accept Dr. Lipowicz's expert
testimony as credible," and thus found that "a reasonable jury could have decided to
believe defendant's expert with respect to the light cigarette issue and found that
defendant had not made any misleading statements regarding this issue."
The superior court concluded that "[g]iven this ambiguity, [it could not]
find that it ha[d] a definite and firm conviction that a mistake was made by the jury." It
therefore granted Philip Morris's motion for reconsideration and vacated its previous
order granting a new trial.
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----------------------- Page 14-----------------------
At the end of this order, the superior court predicted that its conflicting
orders on Hunter's motion might be appealed to us and that we would need to select the
correct standard for trial courts to use in deciding motions for new trial. The superior
court expressed its hope that in such an event, "the Supreme Court will not have to order
a remand." In order to avoid the need for a remand, the superior court provided its
analysis in the alternative: "[I]f it were to apply the Mullen standard, then it would deny
the motion for a new trial," but if it "were to apply the standard that it used in its original
order granting a new trial, then it stands by its decision that pursuant to that standard,
plaintiff is entitled to a new trial."
E. The Superior Court's Third Order, Denying Hunter's Motion For
Reconsideration And Affirming The Denial Of A New Trial
Hunter moved for reconsideration of the second order and reinstatement of
the first. Her motion argued that the superior court had adopted a new standard for her
new trial motion that contradicted this court's decisions, and that even if the superior
court's articulated standard was correct, that court had misapplied it by including in its
order an evaluation of what a "rational juror" or "reasonable jury" could believe. Philip
Morris responded, urging the superior court to maintain its determination that a new trial
was not warranted.
The superior court denied Hunter's motion for reconsideration in a third
order. It explained that it had "relied on the test set forth in [Kava] in both its order
granting the motion for new trial and then in its order denying the motion for new trial."
The superior court clarified that it had reached opposing conclusions because "Kava
itself did not provide any explanation as to how the Alaska Supreme Court expected a
trial court to implement the 'weight of the evidence' test." Thus, the superior court had
first "interpreted Kava essentially to mandate a de novo review of the evidence," and
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----------------------- Page 15-----------------------
later adopted "a more deferential approach that took into account that the jury's verdict
was entitled to some measure of respect."
In response to Hunter's claims that it had erred by considering what a
"rational juror" or a "reasonable jury" could have believed, the superior court explained
that this evaluation was required in the course of determining whether the verdict was
supported by substantial evidence, because "[s]ubstantial evidence is evidence that a
24 Therefore, the
reasonable mind might accept as adequate to support a conclusion."
court determined that it "properly took into consideration whether a rational or
reasonable juror could be persuaded" by Philip Morris's evidence.
The superior court concluded "that viewing the evidence as the thirteenth
juror, the evidence [supporting the verdict] was substantial enough that the court was not
left with a firm conviction that a mistake had been committed by the jury." It therefore
denied Hunter's motion to reconsider its second order. Hunter appeals.
III. STANDARD OF REVIEW
"The question of whether to grant or refuse a new trial 'rests in the sound
discretion of the trial court.' "25 Whether the trial court applied the correct legal standard
is a question of law that we review de novo.26 In reviewing the substance of a trial
court's order denying a new trial, we view the evidence in the light most favorable to the
non-moving party,27 and "will only reverse a decision to deny a new trial if the evidence
24 This quotation in the superior court's order is from Williams v. Ketchikan
GatewayBorough , 295 P.3d374, 375 (Alaska2013) (emphasis added by superior court).
25 Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) (quoting
Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989)).
26 Id.
27 Id.
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----------------------- Page 16-----------------------
supporting the verdict was so completely lacking or slight and unconvincing as to make
28
the verdict plainly unreasonable and unjust."
IV. DISCUSSION
A. The Weight Of The Evidence
Hunter's first argument on appeal is that the superior court erred when it
reversed its original determination that the jury's verdict was against the weight of the
evidence and that a new trial was therefore appropriate. We agree that the superior
court's second and third orders did not identify the correct legal standard.
1. Kava establishes the standard trial courts should use in
evaluating "weight of the evidence" motions for new trial.
In Kava, we explained that when a party seeks a new trial on the ground
that the verdict is against the weight of the evidence,
a trial court may set aside a verdict and order a new trial in
the interest of justice if the verdict is against the weight of the
evidence. In deciding a motion for a new trial on this basis,
the court must use its discretion and independently weigh the
evidence. A court may set aside a verdict as being against the
weight of the evidence even when "there is substantial
evidence to support it." The decision is a matter for the trial
[29]
court's discretion.
This continues to be the standard trial courts should use. We affirmed its
validity in Hogg v. Raven Contractors, Inc., in which we contrasted the Kava standard
to be used by the trial court in ruling on a "weight of the evidence" new trial motion with
28 Hogg v. RavenContractors,Inc. ,134P.3d349, 352 (Alaska2006) (quoting
Grant v. Stoyer , 10 P.3d 594, 596 (Alaska 2000)).
29 Kava, 48 P.3d at 1176 (citations omitted). The omitted citations include
Alaska R. Civ. P. 59(a); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 723 & n.11
(Alaska 1975); and 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2806, at 65 (2d ed. 1995).
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----------------------- Page 17-----------------------
the "considerably more deferential" standard we use as an appellate court when
30
reviewing a trial court's new trial decision.
Our subsequent decisions on the topic have
31
also affirmed the Kava standard.
Trial courts seeking additional guidance about the proper application of the
Kava standard will find it in Rule 59(a), which authorizes a trial court to grant a new trial
"if required in the interest of justice," and in the most recent edition of Moore's Federal
Practice, which emphasizes that a trial court's discretion should be exercised "when
32 As Professor Moore explains in his discussion of
necessary to prevent injustice."
"weight of evidence" new trial motions: "When the trial is lengthy and complicated and
involves subject matters outside the ordinary knowledgeofjurors, the [trial] court should
more closely scrutinize the verdict; when the subject matter of the trial is simple and
easily comprehended by intelligent laypersons, the [trial] court should use less
demanding scrutiny."33 This explanation may provide a useful structure for a trial court
"exercising its broad discretion to determine whether the totality of the circumstances
warranted a new trial in the interest of justice."34
Attempts to further refine the Kava standard for "weight of the evidence"
new trial motions may run the significant risk of muddling more than they clarify.
30 134 P.3d at 352.
31 See, e.g., Cameron v. Chang-Craft , 251 P.3d 1008, 1022 (Alaska 2011);
Kingery v. Barrett , 249 P.3d 275, 280-83 (Alaska 2011); cf. Domke v. Alyeska Pipeline
Serv. Co., 137 P.3d 295, 298-99 (Alaska 2006); Marron v. Stromstad, 123 P.3d 992, 998
(Alaska 2005); Reeves v. Alyeska Pipeline Serv. Co. , 56 P.3d 660, 668 (Alaska 2002).
32 12 J AMES WM. M OORE, F EDERAL PRACTICE § 59.13[1], at 59-38 (3d ed.
2015).
33 Id. § 59.13[2][f][iii][A], at 59-72.
34 Kava, 48 P.3d at 1177.
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----------------------- Page 18-----------------------
"Necessarily all formulations are couched in broad and general terms that furnish no
35
unerring litmus for a particular case."
A trial court should continue to use its discretion
to determine whether a verdict is against the weight of the evidence - not merely
whether the trial court disagrees with the verdict - and whether a new trial is necessary
36 that is, "to prevent injustice."37
"in the interest of justice,"
We commit this determination totrial courts' sound discretion based on our
trust in their position, expertise, and humility. History has indicated that this trust is well
deserved. Although an order granting a new trial is not an immediately appealable final
judgment,38 we are able to review such grants either by granting a petition for review of
the granting order39 or on an eventual appeal of the second trial's verdict. Experience has
shown that there is little cause for concern about trial courts ordering new trials too
frequently: Such orders are a distinct exception.
35 11 CHARLES ALAN WRIGHT ET AL ., F EDERAL PRACTICE AND PROCEDURE
§ 2806, at 90-91 (3d ed. 2012).
36 Kava, 48 P.3d at 1176; Alaska R. Civ. P. 59(a).
37 MOORE § 59.13[1], at 59-38.
38 See Alaska R. App. P. 202(a) ("An appeal may be taken to the supreme
court from a final judgment entered by the superior court . . . ."); Martech Constr. Co.
v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1153 (Alaska 1993) ("The basic thrust of the
finality requirement is that the judgment must be one which disposes of the entire
case, . . . one which ends litigation on the merits and leaves nothing for the court to do
but execute the judgment." (omission in original) (quoting Greater Anchorage Area
Borough v. City of Anchorage, 504 P.2d 1027, 1030 (Alaska 1972))); 11 CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2818, at 242-43 (3d ed. 2012)
("An order granting a new trial usually is not appealable, since it is purely interlocutory
and is not . . . a final judgment.").
39 See Alaska R. App. P. 402.
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2. Mullen discussed the standard appellate courts should use in
evaluating appeals of denials of "weight of the evidence"
motions for new trials.
In Mullen the trial court denied the defendant's motion for a new trial after
40
a jury returned a special verdict in favor of the plaintiffs.
The defendants appealed this
denial, and we affirmed. We described our standard of review in this setting as follows:
A motion for a new trial will be granted when the evidence to
support the verdict is completely lacking or is so slight and
unconvincing as to maketheverdict plainly unreasonableand
unjust. If there is an evidentiary basis for the jury's decision,
denial of a new trial must be affirmed. We will not interfere
with the trial court's discretion except in the most exceptional
[41]
circumstances and to prevent a miscarriage of justice.
The first sentence of this passage, read in isolation, could be interpreted to
state the standard a trial court should apply to an original motion for a new trial based on
an argument that the verdict was against the weight of the evidence. But the ensuing
sentences clarify that this standard is in fact one that appellate courts should use in
determining whether to "affirm[]" a "trial court's" order denying a new trial.
The citations offered in support of the first sentence quoted above also
clarify that it is an appellate standard. We cited two cases, Sloan v. Atlantic Richfield
42 43
Co. and Ahlstrom v. Cummings . In both of those cases, litigants unhappy with a trial
court's decision not to grant their motion for a new trial appealed to this court, and in
40 Mullen v. Christiansen , 642 P.2d 1345, 1346 (Alaska 1982).
41
Id. at 1348 (citations omitted).
42
541 P.2d 717 (Alaska 1975).
43
388 P.2d 261 (Alaska 1964).
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44
both cases we discussed "reviewing a trial court's exercise of discretion" to determine
whether "[t]he circumstances which would require our intervention . . . exist[ed]." 45
Appellateintervention is reserved for situations in which"evidencetosupport theverdict
was completely lacking or was so slight and unconvincing as to make the verdict plainly
unreasonable and unjust."46 The standard trial courts use to evaluate motions for new
trials is much more dedicated to their discretion.
3. A "definite and firm conviction that a mistake has been made"
and references to "reasonable jurors" are used in other
appellate contexts.
We have used the phrase "a definite and firm conviction that a mistake has
been made" to explain our standard of review in appellate contexts. It is most
prominently the test for finding clear error in a superior court's factual findings.47
Whenoneparty moves for adirectedverdictor ajudgmentnotwithstanding
the verdict, we have directed trial courts to consider whether the evidence favorable to
the non-moving party is sufficient to allow a "reasonable juror" to find for that non-
moving party.48 If so, the trial court is to deny the motion. This is another way of
directing "a trial court to view the evidence in the light most favorable to the non-moving
44 Sloan, 541 P.2d at 724.
45 Ahlstrom , 388 P.2d at 262.
46 Id.
47 See, e.g., Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214,
221 (Alaska 2014).
48 See, e.g., Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011).
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party. By contrast, a trial court may set aside a verdict and order a new trial in the
49
interest of justice if the verdict is against the weight of the evidence."
4. The superior court's orders did not correctly synthesize the
standard trial courts should use to decide motions for new trial.
With the principles and precedent discussed above in mind, we move to
analyzing the three orders on the new trial motion issued by the superior court in this
case. Based on the analysis presented above, we conclude that the superior court's
attempts to clarify the applicable standard for a new trial motion resulted in a formulation
that is inconsistent with our cases on this issue. Because this attempt at clarification
resulted in application of an incorrect standard, we remand for a renewed consideration
of Hunter's motion for a new trial based on the weight of the evidence under the correct
standard.
a. The first order identified the correct "weight of the
evidence" new trial standard.
The superior court's first order identified the correct standard for "weight
of the evidence" new trial motions. It correctly explained that a trial court tasked with
ruling on a motion for a new trial "need not view the evidence in the light most favorable
to the non-moving party," and quoted Kava 's requirement that the court "use its
50
discretion and independently weigh the evidence." It then proceeded to perform that
independent evaluation and conclude that a new trial was warranted. For reasons
discussed below, we do not directly reinstate this conclusion; nonetheless, the superior
court's approach and distillation of the legal test were correct in its first order.
49 Kava v. Am.Honda Motor Co. ,48 P.3d1170, 1176 (Alaska2002) (footnote
omitted).
50 Id.
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b. The second order incorrectly stated the "weight of the
evidence" new trial standard.
In the superior court's second order, which vacated the original grant of a
new trial, the court concluded that
a trial court may only grant a motion for a new trial pursuant
to Civil Rule 59 if, after independently evaluating all of the
evidence in effect as the thirteenth juror, the court concludes
that the weight of the evidence preponderates so heavily
against the verdict that the court is left with the definite and
firm conviction that a mistake has been made.
This standard is inconsistent with the standard established in Kava .
The phrase "preponderates heavily against the verdict" derives from our
51 We
approving quotation of a treatise on federal criminal procedure in Dorman v. State .
have not used this phrase in any of our discussions of the new trial standard since that
case because, as the superior court recognized, decisions from the court of appeals that
51 See Dorman v. State , 622 P.2d 448, 454 (Alaska 1981) (quoting 2 C HARLES
ALAN WRIGHT, F EDERAL PRACTICE AND PROCEDURE § 533 (1969)); see also White v.
State, 298 P.3d 884, 885-86 (Alaska App. 2013) ("[E]ven when the judge personally
disagrees with the jury's verdict, this does not, by itself, warrant the judge in ordering
a new trial. Rather, 'a judge should vacate a jury's verdict and grant a new trial under
[Alaska] Criminal Rule 33 only when the evidence is so one-sided that the jury's
contrary view of the case is plainly unreasonable and unjust.' . . . A judge deciding a
motion for a new trial is not supposed to ask whether there is any conceivable
evidentiary basis for the jury's decision. Rather, the judge is supposed to independently
assess the weight of the evidence and the credibility of the witnesses. Then, if the jury
held a contrary view of the case, the judge must ask whether (in the judge's assessment)
the evidence is so one-sided 'that the jury's contrary view of the case is plainly
unreasonable and unjust,' even though there might be some conceivable view of the
evidence that would provide a legal justification for the jury's verdict - i.e., even
though it would have been improper for the judge to have granted a motion for a directed
verdict (in a civil case) or for a judgement of acquittal (in a criminal case)." (internal
alteration omitted) (quoting Taylor v. State, 262 P.3d 232, 234 (Alaska App. 2011))).
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interpret Alaska Criminal Rule 33 do not bind the trial court in a civil case. Thus, this
phrase has not appeared in our discussion in any appeal of a civil matter. We have
repeatedly affirmed that Kava provides the standard for trial courts to use in new trial
motions based on an argument that the verdict was against the weight of the evidence,
and co-mingling that guidance with cases interpreting Criminal Rule 33 threatens to
obscure more than it clarifies. Since our decision in Kava, we have not had occasion to
decide whether its standard for "weight of the evidence" new trial motions applies to
criminal cases as well as civil cases, and that question is not before us in this appeal.
The second order's reference to a "definite and firm conviction that a
mistake has been made" is also wrong. As discussed in Part IV.A.3 above, we use this
phrase to explain our appellate review for clear factual errors. Enacting it as part of the
standard trial courts apply to "weight of the evidence" motions for new trials would have
one of two undesirable consequences: It would either tie these disparate judicial
circumstances together, or it would result in the same phrase having two starkly different
meanings. Eliminating the phrase in the context of new trial motions avoids both of
these flaws. 52
52 Additionally, the second order's understanding that we had approvingly
cited the "definite and firm conviction" language in Kava was incorrect. Footnote 15 of
Kava, which the superior court emphasized, followed this sentence: "A court may set
aside a verdict as being against the weight of the evidence even when 'there is substantial
evidence to support it.' " Kava, 48 P.3d at 1176. The citation in footnote 15 specifically
cited page 65 of the second volume of the second edition of Wright & Miller's Federal
Practice and Procedure. Id. at 1176 n.15. That page contains the language the
Kava court quoted. See 11 C HARLES ALAN WRIGHT ET AL ., F EDERAL PRACTICE AND
PROCEDURE § 2806, at 65 (2d ed. 1995). The phrase "definite and firm conviction" does
not appear for another ten pages, see id. at 75, in a portion of the treatise that we have not
before cited.
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The second order also contained references to what evidence "a rational
juror could . . . accept" and what testimony "a reasonable jury could have decided to
believe." This portion of the order may not have been necessary to support the
conclusion that a new trial was not justified; the views of a reasonable juror were not part
of the new trial standard the superior court articulated. Nonetheless, trial courts
primarily evaluate what a reasonable juror could believe when passing on a litigant's
53 Such motions
motion for a directed verdict or a judgment notwithstanding the verdict.
are requests to withdraw an issue from jurors' consideration altogether and are
appropriately judged by a more skeptical standard than are requests for new trials.54
Mixing the standards together does not produce an accurate clarification of the new trial
standard. The superior court's attempts to determine the best way to implement the
correct test, although thoughtful and comprehensive, led it to announce a standard
inconsistent with our decisions in this field.
c. The third order incorrectly added a new step to the
"weight of the evidence" new trial standard.
The superior court's third order adhered to the reasoning and legal standard
found in its second order. As discussed above, this standard subtly but significantly
diverged from the test we endorsed in Kava.
The third order also explained the second order's use of the phrases
"rational juror" and "reasonable jury." It explained that evaluating what such a juror
could rationally believe was required in order to determine whether the verdict was
supported by substantial evidence. Without such a determination, the superior court
wrote, "a court cannot ascertain whether the jury made an error."
53 See, e.g., Cameron, 251 P.3d at 1017-18.
54 See Kava, 48 P.3d at 1176.
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This explanation adds an unnecessary step to a trial court's evaluation of
a motion for a new trial. As we stated in Kava, "[a] court may set aside a verdict as
being against the weight of the evidence even when 'there is substantial evidence to
55 Substantial evidence to support the verdict is a condition that does not
support it.' "
preclude a grant of a new trial; it is not a prerequisite to granting a new trial or a
condition that triggers a different standard for evaluating a new trial motion.
5. The first order is not controlling.
Although, as discussed above in Part IV.A.4.a, the first order did correctly
look to Kava for the applicable new trial standard, we remand this matter to the superior
court for further proceedings. We do not directly reinstate the first order, despite the
invitation to do so found in the superior court's second order, and instead remand for
four reasons.
First, the superior court had, and continues to have, the discretion to
reconsider its evaluation of the weight of the evidence and the requirements of justice.
Philip Morris's motion to reconsider the first order challenged both the legal standard
applied by the superior court and the substance of the court's finding that the jury's
verdict was contrary to the weight of the evidence. Although its argument as to the legal
standard was incorrect, Philip Morris was nonetheless entitled to protest the superior
court's weighing of the evidence, and the superior court retains the discretion to
reconsider that determination.
The superior court's order vacating the grant of a new trial discussed not
only the applicable legal standard but also Philip Morris's "considerable evidence" to
support the verdict and the ambiguity regarding what statements the jury may have found
55 HARLES ALAN WRIGHT ET AL ., F EDERAL PRACTICE AND
Id. (quoting 11 C
PROCEDURE § 2806, at 65 (2d ed. 1995)).
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false or misleading. Because the superior court considered not only legal argument but
also re-weighed the evidence in its second order, we will not resurrect and reinstate its
vacated first order, which may have depended on a view of the weight of the evidence
to which the superior court no longer subscribed after its reconsideration.
Second, the final order, denying Hunter's motion to reconsider the second
order, identified Kava as the source of the legal standards the court applied "in both its
order granting the motion for new trial and then its order denying the motion for new
trial." As discussed above, the standard articulated in the order denying the motion for
new trial varied from the Kava standard. Nonetheless, the third order's recognition of
Kava as the controlling standard throughout makes it inappropriate for us to reinstate the
first order on that same basis.
Third, the original new trial order may have relied on the superior court's
understanding that Philip Morris had "admitted at oral argument [that] Mr. Francis
switched to light cigarettes because they were less harsh and because he thought they
were better for him." Philip Morris contested whether its counsel had made such an
admission in its motion to reconsider and again before this court. On remand, the
superior court will be in a better position to determine what role, if any, this aspect of the
case should play in evaluating whether the interest of justice requires a new trial.
Finally, there is a continuing ambiguity as to the precise meaning of the
superior court's later characterization of its first order as "a de novo review of the
56 This is an appropriate description
evidence." To review de novo is to consider anew.
of a process that requires a trial court to take a "personal view of the evidence"57 and
56 BLACK 'S LAW DICTIONARY 528 (10th ed. 2014).
57 Kava, 48 P.3d at 1177.
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58
"exercise its discretion and independently weigh the evidence." However, at times the
superior court's second and third orders seem to have used the designation "de novo" to
suggest that its independent evaluation was aimed only at determining which side more
persuaded the court, rather than whether the evidence so weighed against the verdict that
the interest of justice required a new trial. In combination with the other reasons
discussed above, the superior court's ambiguous but disapproving description of its first
order as "a de novo review" makes remand more appropriate than a direct order of a new
trial.
B. False Evidence
Hunter's second argument on appeal is that the superior court erred when
it determined that its evidentiary rulings did not provide a basis for a new trial. Because
the superior court acted within its discretion in not granting a new trial on these grounds,
we affirm this portion of the order.
The superior court's refusal to grant a new trial on evidentiary grounds
came in its first order, which applied the correct Kava legal standard. When we review
the substance of a trial court's denial of a new trial, as opposed to its interpretations of
law, "[w]e will not interfere with the trial court's discretion except in the most
59 This deferential
exceptional circumstances and to prevent a miscarriage of justice."
standard of review stems from the same respect for trial courts' discretion that counsels
against offering overly detailed explanations of when the interest of justice requires a
58 Id.
59 Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982); see
also Cameron v. Chang-Craft , 251 P.3d 1008, 1022 (Alaska 2011) ("We . . . will only
reverse a decision to deny a new trial if the evidence supporting the verdict was so
completely lacking or slight and unconvincing as to make the verdict plainly
unreasonable and unjust." (quoting Hogg v. Raven Contractors, Inc. , 134 P.3d 349, 352
(Alaska 2006))).
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new trial. The "wrongful manipulation of the evidentiary record" that Hunter alleges is
not, in this case, an exceptional circumstance that will justify reversing the trial court's
decision.
The large majority of Hunter's argument to the superior court at trial and
in her motions for a new trial following the verdict centered on the superior court's
refusal to allow her counsel to cross-examine Dr. Lipowicz with Judge Kessler's
findings. Throughout, the superior court adhered to its pre-trial ruling that Judge
Kessler's findings were hearsay and inadmissible. In its order rejecting this ground for
a new trial, the court further found that any error in that ruling was harmless.
Thesuperior court's evidentiaryrulings regardingJudgeKessler's order do
not invite, much less require, us to take the unusual step of reversing the substance of a
trial court's denial of a new trial. The superior court acted well within its discretion to
manage the trial when it excluded Judge Kessler's findings as hearsay, especially in light
of the potential for confusion that would attend any attempt to persuade the jury by
60 Moreover, the
reference to a different fact-finder's determination in a similar case.
superior court's judgment that any error was harmless because "Judge Kessler's
injunction was stayed at the time that the descriptor was removed," and therefore
"Dr. Lipowicz . . . would have testified truthfully that the injunction played no direct role
in the decision to remove the descriptor," is well-founded.
Before the superior court, Hunter made limited reference to the
Congressional findings with which she now claims she should have been permitted to
cross-examine Dr. Lipowicz. The motion she submitted between the two days of
Dr.Lipowicz'stestimony recounts someofCongress's findingsabout smokers' mistakes
regarding the safety of "light" cigarettes, but the only relief specifically requested was
60 See Alaska R. Evid. 403.
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"a corrective statement to the jury in accordance with Judge Kessler's injunction."
Hunter did not refer to Congress's findings in her first motion for a new trial, nor in her
reply to Philip Morris's opposition to that motion. Even in her supplemental briefing
after oral argument before the superior court on her new trial motion, Hunter mostly
focused on the ways that Congress's findings "mirror those of Judge Kessler," and the
extent to which Judge Kessler's decision "was an impetus for Congress passing the
Family Smoking Prevention and Tobacco Control Act."
The superior court's decision not to grant a new trial on the basis of its
exclusion of the Congressional findings does not amount to the requisite "most
61 The only
exceptional circumstance[]" justifying our interference with that denial.
Congressional finding Hunter referenced in her motion during Dr. Lipowicz's testimony
was the finding that "many smokers mistakenly believe that 'low tar' and 'light'
cigarettes cause fewer health problems than other cigarettes."62 Congress attributed this
63 Although Hunter's counsel was unable to
finding to the National Cancer Institute.
reference Congress's findings, he was able to cross-examine Dr. Lipowicz using the
National Cancer Institute report that documented that mistaken belief. Hunter's counsel
also read aloud the Institute's conclusion that the existence and marketing of low yield
cigarettes may have increased the number of deaths due to smoking by encouraging
smokers with health concerns to switch rather than quit altogether. The fact that he could
61 Mullen, 642 P.2d at 1348.
62 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31,
§ 2(38), 123 Stat. 1776, 1780 (2009).
63 See id.
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not also establish that Congress was aware of and credited the same document is not a
basis on which we will reverse the superior court's denial of Hunter's new trial motion. 64
V. CONCLUSION
The superior court's ruling denying a new trial on the issue of evidentiary
restrictions during cross-examination is AFFIRMED. The superior court's new trial
ruling on the issue of the weight of the evidence, as announced in its second and third
orders, is REVERSED; we REMAND for proceedings consistent with this opinion.
64 Weemphasizethatboththehighlydeferentialstandard ofreviewapplicable
to denials of new trial motions and Hunter's successful admission of related evidence are
central to our holding in this case, and that we do not need to decide whether legislative
findings generally constitute admissible evidence.
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