(dissenting)—For the reasons which follow I would reverse granting a new trial based on jury misconduct and affirm denial of a directed verdict on the issue of the hospital's negligence.
As noted by the majority, a much stronger showing of abuse of discretion is required to set aside an order granting a new trial than one denying a new trial. State v. Crowell, 92 Wn.2d 143, 145-46, 594 P.2d 905 (1979). Moreover, evidence of settlements is inadmissible. Grigsby v. Seattle, 12 Wn. App. 453, 529 P.2d 1167, review denied, 85 Wn.2d 1012 (1975). But in this case, the jurors' affidavits did not reflect a clear recollection of the settlement statement by anyone but the juror making the remark and the foreman. Mere speculation the jury considered or was influenced by references to settlement does not justify a new trial. Crane & Crane, Inc. v. C & D Elec., Inc., 37 Wn. App. 560, 570, 683 P.2d 1103 (1984); Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 15 Wn. App. 356, 361-63, 549 P.2d 63 (1976), affd, 89 Wn.2d 72, 569 P.2d 1141 (1977). The grant of the new trial amounted to discretion exercised on untenable grounds and therefore should be reversed.
Additionally, the majority finds the hospital negligent as a matter of law and requires that the trial court grant the Byerlys' motion for a directed verdict on that issue. On the contrary, the trial judge, noting the testimony presented, correctly found a reasonable factual dispute regarding the standard of care of hospitals. Although most of the testimony focused on the procedures carried out by the particular hospital in question, on cross examination the physicians testified charts in other hospitals would also occasionally lack results of tests ordered.
In considering a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the nonmoving party and grant the motion only if there is no evidence or reasonable inferences therefrom which would sustain a jury verdict in favor of the nonmoving party. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 684 *506P.2d 692 (1984). The motion must admit the truth of the nonmoving party's evidence and all reasonable inferences drawn therefrom. Levy v. North Am. Co. for Life & Health Ins., 90 Wn.2d 846, 586 P.2d 845 (1978). Admitting the truth of the evidence that charts in other hospitals are occasionally incomplete, the trial court was correct in ruling a jury question was created as to the standard of care of hospitals and whether that standard was in fact breached in this instance.
I therefore dissent.
Review denied by Supreme Court October 18, 1985.