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Bynum v. Esab Group9/24/2002
he comment. Our review on the whole record leaves us with a definite and firm conviction that a mistake has been made. The jurors were not asked during voir dire about their racial attitudes or if such attitudes would affect their ability to judge the case impartially. Further, absent proof of actual prejudicial effect on the verdict or proof that a challenge for cause would have been successful, it was an abuse of discretion to grant a new trial. Citizens Commercial & Sav Bk v Engberg, 15 Mich App 438; 166 NW2d 661 (1968), McDonough Power Equipment, Inc v Greenwood, 464 US 548; 104 S Ct 845; 78 L Ed 2d 663 (1984). As we have recently stated, a grant of a new trial is governed by MCR 2.611(A)(1).
The rule clearly requires that a party seeking a new trial establish that substantial rights were materially affected. Kelly, supra at 38. No such determination or claim was made in this case.
There was no finding by the trial court that any juror lied during voir dire about racial bias. Absent a determination that juror misconduct occurred, MCR 2.611(A)(1)(b), the plaintiff cannot establish either actual prejudice under Engberg or that her substantial rights were materially affected as set forth in Kelly. The grant of a new trial was contrary to the facts and the court rule and thus an abuse of discretion.
IV.
The order granting a new trial is reversed. The plaintiff's application for leave to appeal as cross-appellant is denied. We remand the case to the trial court for reinstatement of the judgment on the jury verdict.
CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.
CAVANAGH, J., concurred in the result only. KELLY, J., would not decide this case by opinion per curiam, but would grant or deny leave to appeal.
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