Dissent by O'Neill in
In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Majority Opinion by Johnson) (mandamus)
(majority opinion of 5 of 9 grants mandamus relief to order trial judge to give specific reasons for not
entering judgment on the verdict of the jury, and for
grant of new trial; "in the interest of justice" no longer
a sufficient ground to support new trial, holds the majority)  
The Court simply changes the rule and jettisons the law upon which the trial court
relied. After today, I see no principled basis for denying mandamus review of any
potentially dispositive but unexplained interlocutory ruling ...This case does not
present exceptional circumstances to warrant overturning clear and longstanding
precedent on mandamus review. Because the Court concludes otherwise, I
respectfully dissent.
5th district (
05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as
stay order issued August 29, 2008, lifted
The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Brister, and Justice Willett joined. [18-page pdf opinion]
O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined. [13-page pdf opinion]
eBriefs in Tex 2009 No. 06-0416 IN RE  COLUMBIA MEDICAL CENTER OF LAS COLINAS             

In Re Columbia Med. Ctr. of Las Colinas (Tex. 2009)(O'Neill, dissenting)

Argued September 27, 2007

Justice O’Neill, joined by Chief Justice Jefferson, Justice Medina, and Justice Green, dissenting.

I agree that trial courts should not set aside jury verdicts without valid reasons. And I might agree
that a change in the procedural rules to require trial judges to state good cause more particularly
than “in the interests of justice and fairness” would be well advised, though the Legislature has
only seen fit to impose such a requirement in criminal cases. But declaring such a rule by judicial
fiat on interlocutory review, and issuing mandamus relief against the trial court for not following it,
turns our mandamus jurisprudence on its head. The Court recites that “exceptional circumstances”
justify mandamus relief when the trial court shows “such disregard for guiding principles of law that
the harm . . . is irreparable.” ___ S.W.3d ___, ___ (internal quotations omitted). Yet this case
presents neither exceptional circumstances nor a departure from controlling law, as the trial court
followed one of our most well-established legal principles. We have long held, unequivocally, that
a trial court may grant a new trial “in the interests of justice and fairness,”1 and trial and appellate
courts have taken us at our word.2 The Court simply changes the rule and jettisons the law upon
which the trial court relied. After today, I see no principled basis for denying mandamus review of
any potentially dispositive but unexplained interlocutory ruling.

The Court’s premise is simple enough and, on first glance, compelling: public confidence in the
judicial system will be enhanced if trial courts explain the reasons for their rulings. This premise,
though, would surely apply with equal force to any number of interlocutory rulings, such as why the
court impaneled jurors who were challenged for cause, granted or denied a motion for summary
judgment, allowed or disallowed particular discovery, exercised its gatekeeping function as it did
with regard to a key expert witness, or admitted or excluded potentially dispositive evidence. A
trial court’s ruling on matters like these, if wrong, could ultimately lead to reversal on appeal and
necessitate the expense and delay of a new trial. Yet we have never justified interlocutory review
of such decisions on the trial court’s failure to expound its reasoning.

Unlike many other jurisdictions, Texas has no statutory or procedural rule that requires a trial court
to further explain its ruling on a new trial motion or that permits interlocutory review of that
decision, presumably because the benefits of a relatively prompt retrial if the judge perceives
unfairness in the proceedings outweigh the detriments of prolonging final judgment pending
interlocutory appellate review. After all, this case has been on review for over four and one half
years since the new trial was granted. The Court purports to justify its misadventure on the
principle that trial courts may not substitute their judgment for that of the jury. While undoubtedly
true, it is equally true that an appellate court may not substitute its discretion for that of the trial
court, which is charged with ensuring the fairness of the proceedings and safeguarding the
integrity of the judicial process. Because trial courts are in a unique position to observe the
proceedings and participants firsthand, we have afforded them broad discretion in assessing
whether “in the interests of justice and fairness” a new trial is warranted.

If abuse of the privilege that such broad discretion affords is a concern, then Rule 320 should be
amended to mirror the federal requirement that a court “specify the reasons in its order.” Fed. R.
Civ. P. 59(d). Until then, no jurisprudential imperative compels us to overturn more than a century
of clear precedent and erode the broad discretion we have traditionally afforded trial courts in
granting new trials when they perceive good cause to do so. Because the Court ventures far
beyond the boundaries of our mandamus jurisprudence, I respectfully dissent.

I. Background

Donald Creech, Jr. was admitted to Columbia Medical Center for difficulties with kidney stones.
While at the hospital, he received the pain medication Dilaudid, a narcotic, intravenously. When
he increasingly complained of severe pain, the licensed vocational nurse (LVN) attending to
Donald increased the amount and frequency of his doses. Several hours after his largest dose,
Donald died. Donald’s widow, Wendy Creech, brought this suit, alleging that the hospital staff
violated the standard of care in administering such a large amount of Dilaudid to Donald when he
suffered from sleep apnea. She alleges that the medication, a respiratory depressant, interacted
with Donald’s sleep apnea to cause his death by asphyxiation.

After a four-week trial, the jury returned a verdict in favor of all defendants. Wendy moved for a
new trial, arguing that the evidence conclusively proved the defendants’ negligence, the verdict
was against the great weight and preponderance of the evidence, the verdict was manifestly
unjust and conflicted with evidence that established Columbia’s negligence as a matter of law,
and a new trial was warranted in the interests of justice and fairness. The motion contained twenty-
eight evidentiary points, including a challenge to the reliability of Columbia’s expert testimony. The
trial court, “in the interests of justice and fairness,” granted the motion as to the LVN, her
supervising registered nurse, and Columbia in its capacity as their employer (collectively,
“Columbia”), presumably on the grounds urged in the new trial motion. The court entered judgment
in favor of all other defendants3 in accordance with the verdict.

Relying on our precedent, the court of appeals held that the trial court’s explanation for granting
the new trial was sufficient. ___ S.W.3d ___. Under our well-established jurisprudence, it clearly

II. Standard of Review

Trial courts have always been afforded broad discretion in the granting of new trials, and may
exercise such discretion “in the interests of justice and fairness” without stating any other reason.
See Champion Int’l Corp., 762 S.W.2d at 899; Johnson, 700 S.W.2d at 918. Over a century ago,
this Court emphasized the point:

In ordinary cases the judge has a discretion to grant a new trial whenever, in his opinion, wrong
and injustice have been done by the verdict; and it is upon this ground that courts have refused to
interfere to revise the granting of new trials. Goss, 17 Tex. at 115. In this case, the trial court did
precisely what we have long said it could. Yet the Court concludes the trial court abused its
discretion in not stating a more specific reason for its ruling, creating new law on mandamus and
overturning a long line of precedent in the process.

The Court points to a number of jurisdictions that require a trial court to articulate the reason when
granting a new trial sua sponte. In this case, though, the trial court did not rule sua sponte but
granted the plaintiff’s motion for new trial, presumably for the reasons that the plaintiff explained.
Although one of the plaintiff’s new trial grounds cited “the interests of justice and fairness,” another
challenged the verdict based on “the great weight and preponderance of the evidence,” a ground
we have no jurisdiction to review. We do not know whether the trial court’s “in the interests of
justice and fairness” ruling was based on perceived unfairness in the proceedings, on factual
insufficiency of the evidence to support the jury’s verdict, or on both. For this reason alone, we
should deny mandamus relief. But even if the trial court had acted sua sponte, the rule in nearly all
jurisdictions that require an explanation is codified in a statute or procedural rule.4 In none of the
remaining jurisdictions was the rule promulgated on mandamus or its equivalent, and for good

First, to warrant mandamus relief the trial court must have committed a “clear abuse of discretion,”
which we have defined to include failure to apply the law correctly. Walker v. Packer, 827 S.W.2d
833, 839–40 (Tex. 1992). Because the trial court here did exactly what we have clearly said it
could, the trial court can hardly be said to have abused that discretion.

Second, our Legislature is well aware that trial courts may grant new trials “in the interests of
justice and fairness” and has not seen fit to change the law. The Legislature did decide to allow
interlocutory review of new trial orders in criminal proceedings, but declined to extend such review
to the civil arena. See Tex. Code. Crim. Proc. art. 44.01(a)(3). In civil cases, our procedural rules
expressly permit a trial court to grant a new trial on its own motion for any good cause. Tex. R. Civ.
P. 320.

Presuming, as the Court does, that a change in procedure is warranted, it would be far more
appropriate to effect that change by amending the rules rather than implementing new law on

Even if mandamus were an appropriate vehicle to overturn precedent, there is no cause to do so
here. There is a “strong presumption” against overruling our precedent. Gutierrez v. Collins, 583 S.
W.2d 312, 317 (Tex. 1979). Absent compelling reasons, courts should avoid overturning
established law because “the legitimacy of the judiciary rests in large part upon a stable and
predictable decisionmaking process;” without adherence to precedent, no question of law would
ever be considered resolved. Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995).

Compelling reasons to overturn precedent may exist in limited circumstances, such as when the
preceding decision itself was incorrect or unconstitutional, there is conflicting precedent, the
decision has been undercut by the passage of time, the precedent created inconsistency and
confusion, or the decision consistently creates unjust results. See Hammock v. State, 46 S.W.3d
889, 892–93 (Tex. Crim. App. 2001); see also Bowman Biscuit Co. v. Hines, 251 S.W.2d 153,
155 (Tex. 1952) (Garwood, J., dissenting).

None of these circumstances are presented here. The well-established principle that a trial court
does not abuse its discretion by ordering a new trial “in the interests of justice and fairness” is
clear, we have followed it as recently as 2000, see In re Bayerische Motoren Werke, AG, 8 S.W.
3d 326; In re Volkswagen, 22 S.W.3d 462, and there is no conflicting precedent over the course
of the 150 years it has been in place. Our precedent is not unconstitutional, as I will later explain,
nor was it incorrect in the first instance. In sum, none of the factors we have considered in those
rare instances when we have found it necessary to overrule precedent exist in this case.

Although the Court purports to rely on good policy in support of its new rule, there are also good
reasons why a trial court’s failure to provide a more specific explanation does not warrant
extraordinary relief. For example, it would likely be fundamentally unjust to uphold a verdict when
jurors have been inattentive or their perceptions impaired, but our procedural and evidentiary
rules only contemplate the development of an evidentiary record when outside influence has been
asserted. See Tex. R. Civ. P. 327; Tex. R. Evid. 606(b). In Tanner v. United States, the jury was
allegedly under the influence of alcohol and drugs, including marijuana and cocaine, for much of
the trial. 483 U.S. 107, 115–16 (1987). That evidence was inadmissible under Federal Rule of
Civil Procedure 606(b), which is almost identical to Texas Rule of Civil Procedure 606(b). Id. at

Under the Court’s decision today, it is not clear how extended the trial court’s explanation for a
new trial in similar circumstances would have to be, nor is it clear what a reviewing court should
do with that information. For the Court’s rule to have meaning, the trial judge would likely need to
identify which jurors were impaired, how much so, and when, all without the ability to develop an
evidentiary record. The party challenging the new trial order would surely counter that the jury was
not impaired, or at least not so impaired as to taint the verdict. It is unclear how an appellate court
could effectively review such an order, or whether such a reason, though probably “good cause” to
order a new trial under Rule 320, would be sufficient to survive mandamus review.

The procedural history of this case aptly demonstrates another reason why extraordinary relief is
not warranted for the trial court’s failure to provide a more specific explanation. During the
pendency of this Court’s review, the trial judge who ordered a new trial, the Honorable Merrill
Hartman, left office and a new judge succeeded him. We abated the original proceeding to allow
the successor judge to reconsider Judge Hartman’s ruling. See Tex. R. App. P. 7.2(b). The new
judge did so, and reaffirmed Judge Hartman’s order. The Court today sends the case back to the
successor judge to specify the reasons why a new trial was granted. To the extent the successor
judge is able to make an independent assessment based on the record, this may be feasible. But
if Judge Hartman based his decision in whole or in part on unfairness that he perceived during the
proceedings, which until today he was not required to articulate on the record, then the successor
judge is faced with an impossible task. In such a circumstance, changing the rules in midstream
produces a substantial injustice. And if the successor judge reviews the transcript of the
proceedings and reaffirms the new trial order because the jury’s verdict was against the great
weight and preponderance of the evidence, the Court today opens the door to interlocutory
evidentiary review of that decision which heretofore has only been afforded on appeal from a final
judgment. See Champion Int’l Corp., 762 S.W.2d at 899; Johnson v. Court of Civil Appeals for the
Seventh Supreme Judicial Dist., 350 S.W.2d 330, 331 (Tex. 1961).

The Court purports to preserve the discretion traditionally afforded trial courts in issuing new trial
orders, but the practical effect of its decision will be more frequent appellate intervention and
delay. See Johnson, 700 S.W.2d at 918; see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
33, 36 (1980). Moreover, without the vetting that the Court’s rule-making process would afford, the
parameters for reviewing the trial court’s explanation are murky at best. For example, the rules
contemplate a trial court’s discretion to grant a new trial for “good cause” based on “insufficiency
or weight of the evidence.” See Tex. R. Civ. P. 320, 326. Will a judge’s statement that a new trial
is ordered “because of insufficiency or weight of the evidence” satisfy the court’s requirement?
Tex. R. Civ. P. 326. Or must the trial judge, like an appellate court, review the entire record and
expend its resources “detail[ing] the evidence relevant to the issue in consideration and clearly stat
[ing] why the jury’s finding is factually insufficient or is so against the great weight and
preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates
bias?” Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). If upon reflection the judge
believes that a particular witness should not have been allowed to testify, or a piece of evidence
should not have come in, or a requested instruction should have been included in the charge, are
those reasons subject to interlocutory review before a new trial may proceed? If the appellate
court considers an articulated reason invalid, will the case go back down for the judge to consider
alternative grounds that were urged in support of the new trial motion? And if a new trial is granted
based upon the judge’s personal observations, to what extent may those observations be tested?
Is it sufficient for the judge to explain that the jury was generally inattentive, or must the judge
identify the particular jurors and allow the making of a record for purposes of challenging the judge’
s perception?

Such micromanagement of the trial process diminishes the important role trial courts play in
making decisions with the benefit of observing firsthand the demeanor of the witnesses, parties,
attorneys, and jurors, and any other aspect of the trial that may not be reflected on a cold record.
Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co. v. Vasquez, 189
S.W.3d 743, 753 (Tex. 2006)). The discretion afforded trial courts is particularly broad in the area
of jury management. For example, we have frequently stated that trial courts have “wide latitude” in
conducting voir dire proceedings and determining whether a juror is impartial. Id. We have noted
that an interpretation of juror behavior “turns on the courtroom context, and perhaps the looks on
their faces.” Hyundai, 189 S.W.3d at 755. Given the trial court’s observational advantage, it is in a
better position than a reviewing court to discern whether the parties received the fair trial that our
laws guarantee, which is why we have long said “[a]n appellate court may not substitute its
discretion for that of the trial court.” Johnson, 700 S.W.2d at 918.

Although acknowledging that orders granting new trials are rare, Columbia warns that without
careful interlocutory scrutiny judges will be free to substitute their opinions for those of the jury.
Even accepting the premise that some stray trial courts may intentionally abuse their discretion in
this regard, I doubt that requiring wayward courts to explain their decisions will bring them back
into the fold; a judge intent on granting a new trial without good cause can surely construct a
plausible reason capable of withstanding appellate scrutiny. While I agree that trial courts should,
when feasible, explain to the parties why a new trial is being granted, imposing such a
requirement threatens to impede the conscientious trial judge’s ability to correct errors or
unfairness that may have occurred in the proceedings, and ultimately result in fruitless expense
and delay.

III. Columbia’s Constitutional Challenge

Columbia contends our precedents allowing trial courts to grant new trials “in the interests of
justice and fairness,” without further explanation, violate federal and state constitutional
guarantees of due process and the state constitutional guarantee of trial by jury. Specifically,
Columbia claims the lack of meaningful appellate review of new trial orders violates substantive
and procedural federal constitutional rights to due process and state constitutional rights to due
course of law.5 See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. According to Columbia,
its substantive due-process rights are violated because it is deprived of its property, the jury
verdict, in an arbitrary and capricious manner, see Regents of the Univ. of Mich. v. Ewing, 474 U.
S. 214, 215, 225 (1985), and its procedural due-process rights are violated because it did not
have the opportunity to contest the new trial order at a hearing on appeal, see Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). These alleged constitutional violations, Columbia argues,
would be cured by effective appellate review of new trial orders.

Neither type of due-process right that Columbia describes is implicated unless a party is deprived
of a protected property or liberty interest. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59
(1999); Mathews, 424 U.S. at 332. Columbia claims deprivation of a property interest, which is
only constitutionally protected if the right is independently guaranteed by state or federal law. Leis
v. Flynt, 439 U.S. 438, 441–42 (1979). Columbia does not argue that any federal statute or the
common law creates a property right in a particular jury verdict, and we have held that “[n]o party
to a civil action has a constitutional right of appeal from an order of the trial court granting a new
trial.” Plummer v. Van Arsdell, 299 S.W. 869, 870 (Tex. 1927).

Under Texas law, although there is a property interest in a legal claim or contractual right, Tex.
Prop. Code § 111.004(12), there is no property interest in a particular non-final judgment,
Burroughs v. Leslie, 620 S.W.2d 643, 644 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.).
Furthermore, the Supreme Court has held that no property rights are implicated when a trial court
makes a decision that is discretionary under state law, even if the trial court provides no
reasoning for its decision. Leis, 439 U.S. at 442–44. Because Columbia was not deprived of any
protected property interest when the trial court issued its new trial order, Columbia’s due-process
and due-course-of-law rights are not implicated.

Columbia further asserts that allowing trial courts to issue new trial orders without appellate review
deprives it of its state constitutional right to trial by jury. See Tex. Const. art. I, § 15, art. V, § 10. I
agree that the Texas Constitution guarantees Columbia a right to a trial by jury in this health care
liability case. But new trial orders, even if shielded from interlocutory review, do not infringe on that
right. We upheld the constitutionality of such orders in Plummer, and I see no reason to revisit the
question here. 299 S.W. at 870.  

Columbia has had a trial by jury and will have another; it does not have a constitutional right to a
particular jury or a particular jury verdict. Indeed, the discretion afforded a trial court in granting
new trials does not deprive parties of the right to a fair trial by jury; to the contrary, it helps to
guarantee that right when circumstances of the first trial were unjust or unfair to one of the parties.
See Hon. Scott Brister, The Decline in Jury Trials: What Would Wal-Mart Do?, 47 S. Tex. L. Rev.
191, 221 (2005) (“If the first jury was correct, then a second can confirm it.”). Given that the merits
of Creech’s claims and Columbia’s defenses will ultimately be decided by a jury, Columbia has
not been deprived of its right to a trial by jury.

IV. Conclusion

This case does not present exceptional circumstances to warrant overturning clear and
longstanding precedent on mandamus review. Because the Court concludes otherwise, I
respectfully dissent.

Harriet O’Neill




1 See Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988); Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985); Goss v. McClaren, 17 Tex. 107, 115 (1856); see also In re Volkswagen of Am.,
Inc., 22 S.W.3d 462 (Tex. 2000); In re Bayerische Motoren Werke, AG, 8 S.W.3d 326 (Tex. 2000).

2 See In re United Scaffolding, Inc., No. 09-09-00098-CV, 2009 Tex. App. LEXIS 2701, at *1–3 (Tex. App.—Beaumont Apr.
16, 2009, orig. proceeding) (trial court did not abuse its discretion by granting new trial “in the interest of justice and
fairness” where the moving party’s specific complaint was evident from the face of the motion); In re E.I. DuPont de
Nemours & Co., No. 09-08-318 CV, 2008 Tex. App. LEXIS 5443, at *1–2 (Tex. App.—Beaumont July 24, 2008, orig.
proceeding) (mandamus relief not available where trial court failed to state reason for granting new trial); In re Baylor Med.
Ctr. at Garland, No. 05-05-01663-CV, 2006 Tex. App. LEXIS 19 (Tex. App.—Dallas Jan. 4, 2006, orig. proceeding); Eldred v.
Eldred, No. 03-98-00167-CV, 1999 Tex. App. LEXIS 2570, at *19–20 (Tex. App.—Austin Apr. 8, 1999, no pet.); Mosley v.
Employers Cas. Co., 873 S.W.2d 715, 717 (Tex. App.—Dallas 1993, writ denied); Valley Steel Prods. Co. v. Howell, 775 S.W.
2d 34, 36 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (noting that a trial court “need not specify the reason for granting a
new trial in its order”).

3 The trial court entered judgment in favor of defendants Ali Shirvani, M.D., Rabia Khan, M.D., Kyle Chandler and John
Russell Carpenter.

4 This is particularly true in the many jurisdictions that have modeled their rules on the federal rules, which require a trial
court to specify the reasons for granting a new trial sua sponte. See Fed. R. Civ. P. 59(d). A majority of jurisdictions have an
equivalent statute or rule of procedure. Ala. R. Civ. P. 59(d); Alaska R. Civ. P. 59(e); Ariz. R. Civ. P. 59(g); Ark. R. Civ. P. 59(e);
Cal. Civ. Proc. Code § 657 (Deering 2008); Colo. R. Civ. P. 59(c); Del. Super. Ct. Civ. R. 59(c); D.C. Super. Ct. R. Civ. P. 59
(d); Fla. R. Civ. P. 1.530(f); Ga. Code Ann. § 5-5-51 (1995); Haw. R. Civ. P. 59(d); Idaho R. Civ. P. 59(d); Ind. R. Civ. P. 59(J)
(7); Iowa R. Civ. P. 1.1008(3); Kan. Stat. Ann. § 60-259(e) (2005); Ky. R. Civ. P. 59.04; Me. R. Civ. P. 59(d); Mass. R. Civ. P. 59
(d); Mich. Ct. R. 2.611(C); Minn. R. Civ. P. 59.05; Miss. R. Civ. P. 59(d); Mo. Rev. Stat. § 510.370 (1952); Mont. R. Civ. P. 59(e)
–(f); Nev. R. Civ. P. 59(d); N.J. Ct. R. 4:49-1(c); N.M. Dist. Ct. R. Civ. P. 1-050(C)(1); N.D. R. Civ. P. 59(i); Ohio R. Civ. P. 59(D);
Or. Rev. Stat. § 19.430 (2007); R.I. Super. Ct. R. Civ. P. 59(d); S.C. R. Civ. P. 59(d); S.D. Codified Laws § 15-6-59(d) (2004);
Tenn. R. Civ. P. 59.05; Utah R. Civ. P. 59(d); Vt. R. Civ. P. 59(d); Wash. Super. Ct. Civ. R. 59(d), (f); W. Va. R. Civ. P. 59(d);
Wyo. R. Civ. P. 59(d).

5 Although the federal due-process and Texas due-course-of-law clauses are worded differently, we have said that
difference is “without meaningful distinction” and have “traditionally followed contemporary federal due process
interpretations.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995); see also Nat’l Collegiate Athletic Ass’n v.
Yeo, 171 S.W.3d 863, 867–68 (Tex. 2005). Columbia does not argue that a distinction should be drawn here.