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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

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  

                                                                                                                   

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                     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.  



                                                               -2-                                                             7071  


----------------------- 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.  



                                                                                                  -3-                                                                                          7071
  


----------------------- 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).  

                                                                                                           



                                                                                               -4-                                                                                       7071
  


----------------------- 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  



                                                                -5-                                                         7071
  


----------------------- 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).  



                                                                       -6-                                                                     7071  


----------------------- 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  



                                                                -7-	                                                        7071
  


----------------------- 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).  

                                                                                              



                                                                                              -8-                                                                                       7071
  


----------------------- 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.  

                                                                                                                                                          



                                                                                                                   -9-                                                                                                         7071
  


----------------------- 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).  



                                                                                              -10-                                                                                                7071  


----------------------- 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  



                                                               -11-                                                          7071
  


----------------------- 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).  

                                                                                     



                                                                                                         -12-                                                                                                  7071
  


----------------------- Page 13-----------------------

                                                                                                          

                     [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.  



                                                               -13-                                                         7071
  


----------------------- 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  



                                                               -14-	                                                        7071
  


----------------------- 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.  



                                                                                                         -15-                                                                                                  7071
  


----------------------- 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).                                        



                                                                              -16-	                                                                       7071
  


----------------------- 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.  

                                                         



                                                                           -17-                                                                     7071
  


----------------------- 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.  

                                                                          



                                                                                   -18-                                                                             7071
  


----------------------- Page 19-----------------------

                         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).  



                                                                              -19-	                                                                       7071
  


----------------------- Page 20-----------------------

                                                                                                                                 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).  

                                                                                                                                              

                                          



                                                                          -20-	                                                                   7071
  


----------------------- Page 21-----------------------

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.  



                                                                          -21-	                                                                   7071
  


----------------------- Page 22-----------------------

                                                           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))).  



                                                                                                                          -22-	                                                                                                                   7071
  


----------------------- Page 23-----------------------

 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.   



                                                                                                                                                                                                         -23-                                                                                                                                                                                                 7071
  


----------------------- Page 24-----------------------

                             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.  



                                                                                       -24-                                                                                        7071  


----------------------- Page 25-----------------------

                         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)).                         

                         



                                                                             -25-                                                                             7071  


----------------------- Page 26-----------------------

 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.  



                                                                                                                                                                                                                                 -26-                                                                                                                                                                                                                       7071  


----------------------- Page 27-----------------------

                                                                                                                                                                                                                                                                               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))).   



                                                                                                                                                                                  -27-                                                                                                                                                                          7071
  


----------------------- Page 28-----------------------

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.  

                                                                                                                           



                                                                                                                                                      -28-                                                                                                                                                               7071  


----------------------- Page 29-----------------------

"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.  

                                                    



                                                                                                                           -29-                                                                                                                    7071
  


----------------------- Page 30-----------------------

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.                                                                                                                                                                    



                                                                                                                                                                               -30-                                                                                                                                                                      7071
  

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