Motion for Judgment Notwithstanding the

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, IN THE ALTERNATIVE, FOR A NEW TRIAL

, Plaintiff, pursuant to Rules 50(b) and 59 of the Mississippi Rules of Civil Procedure, by and through counsel, moves the Court for a Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial, and in support thereof of states as follows:

I. BACKGROUND

1. On , this case was tried before a County jury.

2. During the trial, the Defendant unduly prejudiced and misled the jury by asking the Plaintiff and other witnesses about an "arrest of Plaintiff" and about Plaintiff's alleged drug and alcohol problem." The defendant had no evidence concerning a conviction of a crime nor ever substantiated any alcohol or drug abuse, even though the defendant asked each witness whether they had information about the Plaintiff's alleged alcohol and drug abuse. The defendant continued to build its entire case on the alleged lack of character and the alleged immoral conduct of the Plaintiff. Defendant, without any evidence to support its position, then argued on closing that the Plaintiff had poor character, that he/she had an alcohol problem, abused drugs and was known for his/her "partying".

3. All of the evidence presented in this case, including testimony of the Plaintiff, testimony of , testimony of a medical physician, medical records and interrogatory responses of the Defendant, overwhelmingly proved that Plaintiff went into , on and was injured. No other evidence existed. The Defendant's entire defense was a theory that the Plaintiff lied about because the Defendant had no information that it ever occurred. This is not only contradicted by the testimony of the Plaintiff, testimony of , testimony of the physician and the other medical records but is also contradicted directly by the responses to discovery which stated that the manager of the store remembered a the same day that .

4. Pursuant to Rule 609 of the Mississippi Rules of Evidence, the admission of a person's arrest is strictly prohibited and can only be admitted if a person has been convicted of a crime that is punishable by death or imprisonment in excess of one year or the conviction of the crime involving dishonesty or false statement. There is absolutely no substantiation that Plaintiff was convicted of a crime. The defense apparently received the information concerning an arrest from a pleading filed in a pending divorce procedure, which clearly only alleged that an arrest was made of the Plaintiff for non-criminal purposes.

5. Further, questions concerning the alleged alcohol and drug abuse were totally impermissible and unduly prejudicial. Rule 608 of the Mississippi Rules of Evidence states that the credibility of a witness may only be attacked by evidence as it relates to his/her reputation for truthfulness and untruthfulness. Questions concerning an allegation of drug and alcohol abuse were totally irrelevant to Plaintiff's reputation for truthfulness and was unduly prejudicial to the Plaintiff's case. The prejudicial nature of the questioning, particularly without any creditable evidence that was presented, the Plaintiff is entitled to a judgment notwithstanding the verdict.

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III. NEW TRIAL

10. In the alternative, Plaintiff is entitled to a new trial since the questions and argument by the Defendant so unduly prejudiced the jury that the jury was unable to fairly review the credible evidence presented at the trial and render a fair verdict.

11. "A new trial may be granted in a number of circumstances, such as when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice." Bobby Kitchens v. Miss. Ins. Guar. Ass'n, 560 So.2d 129 (Miss. 1989). A Motion for New Trial authorizes "the trial judge to set aside any or all parts of the issues tried and [to) grant a new trial as justice requires." Comment, Miss.R.Civ.P. 59. At least six factors have been provided by the Mississippi Supreme Court for this Court to consider when determining whether a new trial should be granted. Daniels By Glass v. Wal-Mart Stores, 634 So.2d 88, 94 (Miss. 1993) (citing Bobby Kitchens v. Miss. Ins. Guar. Ass'n, 560 So.2d 129, 132 (Miss. 1989)). The six factors to be considered are as follows: (1) Has the search for the true facts proceeded as far as it reasonable [sic] may under the peculiar facts and circumstances of the case? (2) To what extent would it be unfair to the party in whose favor the verdict was returned in effect to give that party's adversary a second bite at the apple? (3) Considering the evidence, is there a substantial basis for belief that the jury disregarded their oaths and failed to follow the instructions of the Court in reaching its verdict? (4) Assuming arguendo that the verdict is unjust (by reference to the underlying facts of the transaction or occurrence, the complete truth of which we will never know) what is the impact of that "injustice" upon the party against whom the verdict is returned? (5) If a new trial is ordered, will the party in whose favor the verdict has been returned be deprived of some fair advantage he enjoyed in the first trial? and (6) Are there any other factors present, peculiar to the particular case of the parties, that would render just or unjust the grant or denial of a new trial? Daniels By Glass, 634 So.2d at 94.

12. It is totally impermissible to create a defense, by asking prejudicial questions about the Plaintiff's conduct without substantiation, and argue to the jury the same non-substantiated conduct should be the basis of their verdict. The defense irreparably tainted the jury when it asked inappropriate questions about an arrest and alleged alcohol and drug problems. The defense continued to taint the jury as it inappropriately argued to the jury that Plaintiff's "conduct" would support a finding for the defense. It is obvious, since the overwhelming evidence in this case proved that Plaintiff was injured due to the negligence of the Defendant, that the defense's inappropriate questions and argument did not allow the jury to fairly view the evidence and return a fair and just verdict.

WHEREFORE, Plaintiff, , respectfully requests this Court to enter a judgment in his/her favor notwithstanding the verdict, or in the alternative, enter an order granting Plaintiff a new trial.

This the day of .

Respectfully submitted,

CERTIFICATE OF SERVICE

I, , do hereby certify that I have this day caused to be mailed, by United States mail, postage prepaid, a true and correct copy of the above and foregoing document to

This, the day of .