In Herbst v. Marshal, 4th Dept 2011 (CA 11-00326) the Fourth Department upheld the lower Court’s ruling to set aside a jury verdict in favor of the defendant as against the weight of the evidence based on the jury’s finding that the crash was not a substantial factor in causing an injury to plaintiff.

The first question on the verdict sheet was whether the accident was “a substantial factor in causing an injury to” plaintiff. The question was not whether plaintiff sustained a “serious” injury, which appeared later in the verdict sheet. While there was conflicting evidence presented as to whether the plaintiff sustained a serious injury, it was undisputed by defendant’s and plaintiff’s doctors that she sustained “an” injury as a result of the crash. The court held therefore that the evidnce regarding substantial factor so preponderates in favor of the plaintiff that the jury finding to the contrary could not have been reached on any fair interpretation of the evidence.

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