What is the standard of review for a motion for a second trial?

The district court should have applied the "fundamental error" standard of review to the defendant's request for a new trial. Analyzing the result of the first trial under this stringent standard, we conclude that vacating the original jury verdict was not "necessary to correct a fundamental error or to prevent a miscarriage of justice" caused by the allegedly erroneous jury instruction, Cohen v. Franchard Corp., 478 F.2d 115, 124 (2d Cir. 1973), and that the district court therefore erred in ordering a second trial.

Even if we were to conclude that the disputed instructions were incorrect, the defendants cite no cases in which we have held that a jury verdict or instruction constituted fundamental error solely because it conflicted with the law of joint and several liability. It is true, as the defendants observe, that in Rodick v. City of Schenectady, we ordered a new trial because of a verdict's inconsistency despite the defendants' failure to object to the erroneous instruction and verdict form. See 1 F.3d 1341, 1347-49 (2d Cir. 1993). In that case, however, the verdict was inconsistent not only with the law of joint and several liability, but also with the doctrine of respondeat superior. See id. at 1348. The jury there had attributed to the vicariously liable defendant "a damage amount ten times greater than the liability assessed against each of the [directly responsible] individual defendants and 2.5 times greater than the damages assessed against the [individual defendants] collectively." Id. at 1349. That verdict, we concluded, was "so contrary to basic concepts of respondeat superior that it would be a miscarriage of justice to let it stand." Id. at 1348.