Tuesday, May 23, 2006

Seventh Circuit Rules on Unitherm's Applicability to Evidentiary Rulings

Earlier this year, in Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 126 S. Ct. 980 (2006), the Supreme Court ruled that to preserve a sufficiency challenge to a party's evidence at trial, the opposing party must file pre- and post-verdict motions for judgment as a matter of law under Fed. R. Civ. P. 50. Under Unitherm, failure to file a renewed post-verdict motion under Rule 50 leaves both the district and appellate courts without the power to direct entry of judgment in favor of the verdict-loser (or even to order a new trial) on sufficiency grounds.

Does Unitherm require that a party renew its evidentiary objections in Rule 50 motions? A Seventh Circuit panel has ruled: (1) that evidentiary error may be preserved for appeal under Fed. R. Evid. 103 without any need for a Rule 50 motion; but (2) the objecting party's failure to file any post-verdict Rule 50 motion has the effect of limiting appellate relief to a new trial. Absent a post-verdict Rule 50 motion, that is, the appellate court may not rule that evidence should have been excluded and then direct entry of judgment against the verdict-winner on the theory that the verdict-winner's remaining evidence is insufficient. See Fuesting v. Zimmer, Inc., No. 04-2158 (7th Cir. May 22, 2006) (Flaum, Evans, & Williams, JJ.).

Will the holding in Fuesting be followed in other circuits? Not clear. The Fuesting opinion relies heavily on language from Rule 103 and its Advisory Committee Notes suggesting (on the Seventh Circuit's interpretation) that satisfaction of Rule 103's conditions is sufficient, by itself, to preserve error. But neither Rule 103's text nor its Advisory Committee Notes manifestly compel that conclusion. Meanwhile, there is strong language in Unitherm about how failure to seek a new trial from the district court via post-verdict Rule 50 motion waives the right to secure such relief on appeal, at least in sufficiency contexts where evidentiary error is not in play.

For now, then, the safest course is probably to renew the evidentiary objections in pre- and post-verdict Rule 50 filings, raise the concomitant sufficiency challenge in both motions, and request a new trial in the alternative in the post-verdict motion. Admittedly, that's a lot of paper-shuffling for everybody. But better to shuffle the paper now, then in a later malpractice suit.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.