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


7. Iacurci v. Lummus Co., 387 U.S. 86 (1967) (per curiam), decided shortly after Neely, is illustrative. There, the Court reversed the appellate court’s direction of the entry of judgment as a matter of law for the defendant and instructed the appeals court to remand the case to the trial court for a new trial determination; the Court pointed to the jury’s failure to respond to four out of five special interrogatories, which left issues of negligence unresolved, and concluded that in the particular circumstances, the trial judge “was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury’s verdict and interrogatory answers.” Id., at 88.

8. See Tr. of Oral Arg. 6, 8, 17—18, 23, 26—28, 31; Reply Brief 3—6; Brief for Respondents 24—29. Compare, e.g., Redman, 111 F.3d, at 1178—1179 (treating judgment as a matter of law based on insufficiency caused by admission error identically to initial insufficiency); Smelser, 105 F.3d, at 301, 306 (same); Wright, 91 F.3d, at 1108 (same); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1198—1200 (CA3 1993) (rejecting distinction), with Kinser, 184 F.3d, at 1267, 1269 (insufficiency caused by admission error inappropriate basis for judgment as a matter of law); Jackson v. Pleasant Grove Health Care Center, 980 F.2d 692, 695—696 (CA11 1993) (same); Douglass v. Eaton Corp., 956 F.2d 1339, 1343—1344 (CA6 1992) (same); Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F.2d 357, 358—359 (CA8 1973) (same).

9. Weisgram misreads the Court’s decision in Montgomery Ward Co. v. Duncan, 311 U.S. 243 (1940), to support his position. Reply Brief 3—4; Tr. of Oral Arg. 19. The Court in Montgomery Ward directed that a trial judge who grants the verdict loser’s motion for judgment n.o.v. should also rule conditionally on that party’s alternative motion for a new trial. 311 U.S., at 253—254. The conditional ruling would be reviewed by the court of appeals only if it reversed the entry of judgment n.o.v. Proceeding in this manner would avoid protracting the proceedings by obviating the need for multiple appeals. See id., at 253. Rule 50 was amended in 1963 to codify Montgomery Ward’s instruction. See Fed. Rule Civ. Proc. 50(c)(1). In the course of its elaboration, the Montgomery Ward Court observed that a “motion for judgment cannot be granted unless, as a matter of law, the opponent of the movant failed to make a case.” 311 U.S., at 251. In contrast, the Court stated, a new trial motion may invoke the court’s discretion, bottomed on such standard new trial grounds as “the verdict is against the weight of the evidence,” or “the damages are excessive,” or substantial errors were made “in admission or rejection of evidence.” Ibid; see also id., at 249. Many rulings on evidence, of course‘, do not bear dispositively on the adequacy of the proof to support a verdict. For example, the evidence erroneously admitted or excluded may strengthen or weaken one side’s case without being conclusive as to the litigation’s outcome. Or, the evidence may abundantly support a jury’s verdict, but one or another item may have been unduly prejudicial to the verdict loser and excludable on that account. See Fed. Rule Evid. 403 (relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”). Such run-of-the-mine, ordinarily nondispositive, evidentiary rulings, we take it, were the sort contemplated in Montgomery Ward. Cf. 311 U.S., at 245—246 (indicating that sufficiency-of-the-evidence challenges are properly raised by motion for judgment, while other rulings on evidence may be assigned as grounds for a new trial).

10. Weisgram additionally urges that the Seventh Amendment prohibits a court of appeals from directing judgment as a matter of law on a record different from the one considered by the jury. Brief for Petitioner 20—22; Reply Brief 6—8. Neely made clear that a court of appeals may order entry of judgment as a matter of law on sufficiency-of-the-evidence grounds without violating the Seventh Amendment. 386 U.S., at 321—322. Entering judgment for the verdict loser when all of the evidence was properly before the jury is scarcely less destructive of the jury’s verdict than is entry of such a judgment based on a record made insufficient by the removal of evidence the jury should not have had before it. 

11. We recognize that it is awkward for an appellee, who is wholeheartedly urging the correctness of the verdict, to point out, in the alternative, grounds for a new trial. See Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961—1963 (II), 77 Harv. L. Rev. 801, 819 (1964) (“A verdict winner may suffer forensic embarrassment in arguing for a new trial on his own behalf, faute de mieux, while seeking to defend his verdict against all attacks by his opponent.”). A petition for rehearing in the court of appeals, however, involves no conflicting tugs. We are not persuaded by Weisgram’s objection that the 14 days allowed for the filing of a petition for rehearing is insufficient time to formulate compelling grounds for a new trial. Reply Brief 15—16. This time period is longer than the ten days allowed a verdict winner to move for a new trial after a trial court grants judgment as a matter of law. See Fed. Rule Civ. Proc. 50(c)(2). Nor do we foreclose the possibility that a court of appeals might properly deny a petition for rehearing because it pressed an argument that plainly could have been formulated in a party’s brief. See Louis, Post-Verdict Rulings on the Sufficiency of the Evidence: Neely v. Martin K. Eby Construction Co. Revisited, 1975 Wis. L. Rev. 503, 519—520, n. 90 (“[I]t is often difficult to argue that a gap in one’s proof can be filled before a court has held that the gap exists . . . .” On the other hand, “the brief or oral argument will suffice . . . when the area of the alleged evidentiary insufficiency has previously been clearly identified.”) (internal citation omitted).

12. We note that the decision in Kumho is consistent with Eighth Circuit precedent existing at the time of trial in Weisgram’s case. See, e.g., Peitzmeier v. Hennessy Industries, Inc., 97 F.3d 293, 297 (CA8 1996).

13. Cf. Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 327 (1967) (observing that it would not be clear that litigation should be terminated for evidentiary insufficiency when, for example, the trial court excluded evidence that would have strengthened the verdict winner’s case or “itself caused the insufficiency . . . by erroneously [imposing] too high a burden of proof ”).

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