WEISGRAM et al. v. MARLEY CO. et al.


The parties before us–and court of appeals opinions–diverge regarding Neely’s scope. Weisgram, in line with some appellate decisions, posits a distinction between cases in which judgment as a matter of law is requested based on plaintiff’s failure to produce enough evidence to warrant a jury verdict, as in Neely, and cases in which the proof introduced becomes insufficient because the court of appeals determines that certain evidence should not have been admitted, as in the instant case.8 Insufficiency caused by deletion of evidence, Weisgram contends, requires an “automatic remand” to the district court for consideration whether a new trial is warranted. Brief for Petitioner 20, 22; Reply Brief 1, 3—6; Tr. of Oral Arg. 6, 18, 23.9  

Weisgram relies on cases holding that, in fairness to a verdict winner who may have relied on erroneously admitted evidence, courts confronting questions of judgment as a matter of law should rule on the record as it went to the jury, without excising evidence inadmissible under Federal Rule of Evidence 702. See, e.g., Kinser v. Gehl Co., 184 F.3d 1259, 1267, 1269 (CA10 1999); Schudel v. General Electric Co., 120 F.3d 991, 995—996 (CA9 1997); Jackson v. Pleasant Grove Health Care Center, 980 F.2d 692, 695—696 (CA11 1993); Midcontinent Broadcasting, 471 F.2d, at 358. But see Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1198—1200 (CA3 1993). These decisions are of questionable consistency with Rule 50(a)(1), which states that in ruling on a motion for judgment as a matter of law, the court is to inquire whether there is any “legally sufficient evidentiary basis for a reasonable jury to find for [the opponent of the motion].” Inadmissible evidence contributes nothing to a “legally sufficient evidentiary basis.” See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury’s verdict.”).10

As Neely recognized, appellate rulings on post-trial pleas for judgment as a matter of law call for the exercise of “informed discretion,” 386 U.S., at 329, and fairness to the parties is surely key to the exercise of that discretion. But fairness concerns should loom as large when the verdict winner, in the appellate court’s judgment, failed to present sufficient evidence as when the appellate court declares inadmissible record evidence essential to the verdict winner’s case. In both situations, the party whose verdict is set aside on appeal will have had notice, before the close of evidence, of the alleged evidentiary deficiency. See Fed. Rule Civ. Proc. 50(a)(2) (motion for judgment as a matter of law “shall specify . . . the law and facts on which the moving party is entitled to the judgment”). On appeal, both will have the opportunity to argue in support of the jury’s verdict or, alternatively, for a new trial. Andif judgment is instructed for the verdict loser, both will have a further chance to urge a new trial in a rehearing petition.11

Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. 509 U.S. 579; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (rendered shortly after the Eighth Circuit’s decision in Weisgram’s case);12 General Electric Co. v. Joiner, 522 U.S. 136 (1997). It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing Weisgram’s fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. See Brief for Petitioner 18, 25. In this case, for example, although Weisgram was on notice every step of the way that Marley was challenging his experts, he made no attempt to add or substitute other evidence. See Lujan v. National Wildlife Federation, 497 U.S. 871, 897 (1990) (“[A] litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant’s own risk.”).

After holding Weisgram’s expert testimony inadmissible, the Court of Appeals evaluated the evidence presented at trial, viewing it in the light most favorable to Weisgram, and found the properly admitted evidence insufficient to support the verdict. 169 F.3d, at 516—517. Weisgram offered no specific grounds for a new trial to the Eighth Circuit.13 Even in the petition for rehearing, Weisgram argued only that the appellate court had misapplied state law, did not have the authority to direct judgment, and had failed to give adequate deference to the trial court’s evidentiary rulings. App. 131—151. The Eighth Circuit concluded that this was “not a close case.” 169 F.3d, at 517, n. 2. In these circumstances, the Eighth Circuit did not abuse its discretion by directing entry of judgment for Marley, instead of returning the case to the District Court for further proceedings.

Neely recognized that there are myriad situations in which the determination whether a new trial is in order is best made by the trial judge. 386 U.S., at 325—326. Neely held, however, that there are also cases in which a court of appeals may appropriately instruct the district court to enter judgment as a matter of law against the jury-verdict winner. Id., at 326. We adhere to Neely’s holding and rationale, and today hold that the authority of courts of appeals to direct the entry of judgment as a matter of law extends to cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support the jury’s verdict.

For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed. Next Page ->

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