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

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Syllabus
WEISGRAM et al. v. MARLEY CO. et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 99–161. Argued January 18, 2000—Decided February 22, 2000
Bonnie Weisgram died of carbon monoxide poisoning during a fire in her
home. Her son, petitioner Chad Weisgram, individually and on behalf
of her heirs (hereinafter Weisgram), brought this diversity action in the
District Court seeking wrongful death damages. Weisgram alleged
that a defect in a heater, manufactured by defendant (now respondent)
Marley Company and located in Bonnie Weisgram’s home, caused both
the fire and her death. At trial, Weisgram introduced the testimony of
three witnesses, proffered as experts, in an endeavor to prove the al-
leged heater defect and its causal connection to the fire. The District
Court overruled Marley’s objections that this testimony was unreliable
and therefore inadmissible under Federal Rule of Evidence 702 as eluci-
dated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579.
At the close of Weisgram’s evidence, and again at the close of all the
evidence, Marley unsuccessfully moved under Federal Rule of Civil Pro-
cedure 50(a) for judgment as a matter of law on the ground that plain-
tiffs had failed to meet their burden of proof on the issues of defect and
causation. The jury returned a verdict for Weisgram. Marley again
requested judgment as a matter of law, and additionally requested, in
the alternative, a new trial, pursuant to Rules 50 and 59; among argu-
ments in support of its post-trial motions, Marley reasserted that the
expert testimony essential to prove Weisgram’s case was unreliable and
therefore inadmissible. The District Court denied the motions and en-
tered judgment for Weisgram. The Eighth Circuit panel held that Mar-
ley’s motion for judgment as a matter of law should have been granted
because the testimony of Weisgram’s expert witnesses, the sole evidence
supporting the product defect charge, was speculative and not shown to
be scientifically sound, and was therefore incompetent to prove plain-
tiffs’ case. The court then considered the remaining evidence in the
light most favorable to Weisgram, found it insufficient to support the
jury verdict, and directed judgment as a matter of law for Marley. Al-
though recognizing its discretion to remand for a new trial under Rule
50(d), the court rejected any contention that it was required to do so,
stating that this was not a close case, plaintiffs had had a fair opportu-
nity to prove their strict liability claim, they failed to do so, and there
was no reason to give them a second chance.

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Held: Rule 50 permits an appellate court to direct the entry of judgment
as a matter of law when it determines that evidence was erroneously
admitted at trial and that the remaining, properly admitted, evidence is
insufficient to constitute a submissible case. Pp. 447–457.
(a) Rule 50(d), which controls when, as here, the verdict loser appeals
from the trial court’s denial of a motion for judgment as a matter of law,
provides: “[T]he party who prevailed on that motion may, as appellee,
assert grounds entitling the party to a new trial in the event the appel-
late court concludes that the trial court erred in denying the motion . . . .
If the appellate court reverses the judgment, nothing in this rule pre-
cludes it from determining that the appellee is entitled to a new trial,
or from directing the trial court to determine whether a new trial shall
be granted.” Rule 50 does not expressly address Weisgram’s conten-
tion that, under subdivision (d), when a court of appeals determines that
a jury verdict cannot be sustained due to an error in the admission of
evidence, the appellate court may not order the entry of judgment for
the verdict loser, but must instead remand the case to the trial court
for a new trial determination. Neely v. Martin K. Eby Constr. Co., 386
U. S. 317, ruled definitively that if a court of appeals determines that
the district court erroneously denied a defendant’s motion for judgment
as a matter of law, the appellate court may (1) order a new trial at the
verdict winner’s request or on its own motion, (2) remand the case for
the trial court to decide whether a new trial or entry of judgment for
the defendant is warranted, or (3) direct the entry of judgment as a
matter of law for the defendant. Id., at 327–330. Pp. 447–452.
(b) The authority of courts of appeals to direct the entry of judgment
as a matter of law extends to cases such as the present one in which, on
the appellate court’s excision of erroneously admitted testimony, there
remains insufficient evidence to support the jury’s verdict. Contrary
to Weisgram’s contention, that authority is not limited to cases exempli-
fied by Neely in which judgment as a matter of law is requested based
on plaintiff ’s failure to produce enough evidence to warrant a jury ver-
dict. Weisgram asserts that insufficiency caused by deletion of evi-
dence on appeal requires an “automatic remand” to the district court for
consideration whether a new trial is warranted. His assertion draws
support from Court of Appeals decisions 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 inadmissi-
ble under Federal Rule of Evidence 702. The decisions on which Weis-
gram relies 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

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basis for a reasonable jury to find for [the opponent of the motion].”
Inadmissible evidence contributes nothing to a “legally sufficient eviden-
tiary basis.” See Brooke Group Ltd. v. Brown & Williamson Tobacco
Corp., 509 U. S. 209, 242. 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 win-
ner’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 Rule 50(a)(2). On appeal, both will have
the opportunity to argue in support of the jury’s verdict or, alterna-
tively, for a new trial. And if judgment is instructed for the verdict
loser, both will have a further chance to urge a new trial in a rehearing
petition. Since Daubert, moreover, parties relying on expert evidence
have had notice of the exacting standards of reliability such evidence
must meet. 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. The Court therefore re-
jects Weisgram’s argument 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 testi-
mony would be found inadmissible. In this case, for example, although
Weisgram was on notice every step of the way that Marley was challeng-
ing plaintiffs’ experts, he made no attempt to add or substitute other
evidence. Facing the Eighth Circuit’s determination that the properly
admitted evidence was insufficient to support the verdict, Weisgram of-
fered that court no specific grounds for a new trial. The Eighth Circuit
therefore did not abuse its discretion by directing entry of judgment for
Marley, instead of returning the case to the District Court for further
proceedings. This Court’s holding adheres to Neely’s holding and ra-
tionale. Pp. 452–457.
169 F. 3d 514, affirmed.
Ginsburg, J., delivered the opinion for a unanimous Court.
Paul A. Strandness argued the cause for petitioners.
With him on the briefs were Stephen S. Eckman and Daniel
J. Dunn.

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Opinion of the Court
Christine A. Hogan argued the cause for respondents.
With her on the brief was James S. Hill.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the respective authority of federal trial
and appellate courts to decide whether, as a matter of law,
judgment should be entered in favor of a verdict loser. The
pattern we confront is this. Plaintiff in a product liability
action gains a jury verdict. Defendant urges, unsuccessfully
before the federal district court but successfully on appeal,
that expert testimony plaintiff introduced was unreliable,
and therefore inadmissible, under the analysis required by
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579
(1993). Shorn of the erroneously admitted expert testi-
mony, the record evidence is insufficient to justify a plain-
tiff ’s verdict. May the court of appeals then instruct the
entry of judgment as a matter of law for defendant, or must
that tribunal remand the case, leaving to the district court’s
discretion the choice between final judgment for defendant
or a new trial of plaintiff ’s case?
Our decision is guided by Federal Rule of Civil Procedure
50, which governs the entry of judgment as a matter of law,
and by the Court’s pathmarking opinion in Neely v. Martin
K. Eby Constr. Co., 386 U. S. 317 (1967). As Neely teaches,
courts of appeals should “be constantly alert” to “the trial
judge’s first-hand knowledge of witnesses, testimony, and is-
sues”; in other words, appellate courts should give due con-
sideration to the first-instance decisionmaker’s “ ‘feel’ for the
overall case.” Id., at 325. But the court of appeals has
authority to render the final decision. If, in the particular
*Jeffrey Robert White filed a brief for the Association of Trial Lawyers
of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for Brunswick Corp.
by Stephen M. Shapiro, Timothy S. Bishop, and Jeffrey W. Sarles; and for
the Product Liability Advisory Council, Inc., by Michael T. Wharton.

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case, the appellate tribunal determines that the district court
is better positioned to decide whether a new trial, rather
than judgment for defendant, should be ordered, the court of
appeals should return the case to the trial court for such an
assessment. But if, as in the instant case, the court of ap-
peals concludes that further proceedings are unwarranted
because the loser on appeal has had a full and fair opportu-
nity to present the case, including arguments for a new trial,
the appellate court may appropriately instruct the district
court to enter judgment against the jury-verdict winner.
Appellate authority to make this determination is no less
when the evidence is rendered insufficient by the removal of
erroneously admitted testimony than it is when the evidence,
without any deletion, is insufficient.
I
Firefighters arrived at the home of Bonnie Weisgram on
December 30, 1993, to discover flames around the front en-
trance. Upon entering the home, they found Weisgram in
an upstairs bathroom, dead of carbon monoxide poisoning.
Her son, petitioner Chad Weisgram, individually and on be-
half of Bonnie Weisgram’s heirs, brought a diversity action
in the United States District Court for the District of North
Dakota seeking wrongful death damages. He alleged that
a defect in an electric baseboard heater, manufactured by
defendant (now respondent) Marley Company and located in-
side the door to Bonnie Weisgram’s home, caused both the
fire and his mother’s death.1
1 At trial and on appeal, the suit of the Weisgram heirs was consolidated
with an action brought against Marley Company by State Farm Fire and
Casualty Company, insurer of the Weisgram home, to recover benefits
State Farm paid for the damage to the Weisgram townhouse and an adjoin-
ing townhouse. State Farm was dismissed from the appeal after certio-
rari was granted. For purposes of this opinion, we generally refer to the
plaintiffs below, and to the petitioners before us, simply as “Weisgram.”

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At trial, Weisgram introduced the testimony of three wit-
nesses, proffered as experts, in an endeavor to prove the
alleged defect in the heater and its causal connection to the
fire. The District Court overruled defendant Marley’s ob-
jections, lodged both before and during the trial, that this
testimony was unreliable and therefore inadmissible under
Federal Rule of Evidence 702 as elucidated by Daubert. At
the close of Weisgram’s evidence, and again at the close of
all the evidence, Marley unsuccessfully moved under Federal
Rule of Civil Procedure 50(a) for judgment as a matter of
law on the ground that plaintiffs had failed to meet their
burden of proof on the issues of defect and causation. The
jury returned a verdict for Weisgram. Marley again re-
quested judgment as a matter of law, and additionally re-
quested, in the alternative, a new trial, pursuant to Rules 50
and 59; among arguments in support of its post-trial motions,
Marley reasserted that the expert testimony essential to
prove Weisgram’s case was unreliable and therefore inadmis-
sible. App. 123–125. The District Court denied the mo-
tions and entered judgment for Weisgram. App. to Pet. for
Cert. A28–A40. Marley appealed.
The Court of Appeals for the Eighth Circuit held that Mar-
ley’s motion for judgment as a matter of law should have
been granted. 169 F. 3d 514, 517 (1999). Writing for the
panel majority, Chief Judge Bowman first examined the tes-
timony of Weisgram’s expert witnesses, the sole evidence
supporting plaintiffs’ product defect charge. Id., at 518–522.
Concluding that the testimony was speculative and not
shown to be scientifically sound, the majority held the expert
evidence incompetent to prove Weisgram’s case. Ibid. The
court then considered the remaining evidence in the light
most favorable to Weisgram, found it insufficient to support
the jury verdict, and directed judgment as a matter of law
for Marley. Id., at 516–517, 521–522. In a footnote, the ma-
jority “reject[ed] any contention that [it was] required to re-
mand for a new trial.” Id., at 517, n. 2. It recognized its

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discretion to do so under Rule 50(d), but stated: “[W]e can
discern no reason to give the plaintiffs a second chance to
make out a case of strict liability . . . . This is not a close
case. The plaintiffs had a fair opportunity to prove their
claim and they failed to do so.” Ibid. (citations omitted).
The dissenting judge disagreed on both points, concluding
that the expert evidence was properly admitted and that the
appropriate remedy for improper admission of expert testi-
mony is the award of a new trial, not judgment as a matter
of law. Id., at 522, 525 (citing Midcontinent Broadcasting
Co. v. North Central Airlines, Inc., 471 F. 2d 357 (CA8 1973)).
Courts of Appeals have divided on the question whether
Federal Rule of Civil Procedure 50 permits an appellate
court to direct the entry of judgment as a matter of law
when it determines that evidence was erroneously admitted
at trial and that the remaining, properly admitted evidence
is insufficient to constitute a submissible case.2 We granted
certiorari to resolve the conflict, 527 U. S. 1069 (1999),3 and
we now affirm the Eighth Circuit’s judgment.
2 The Tenth Circuit has held it inappropriate for an appellate court to
direct the entry of judgment as a matter of law based on the trial court’s
erroneous admission of evidence, because to do so would be unfair to a
party who relied on the trial court’s evidentiary rulings. See Kinser v.
Gehl Co., 184 F. 3d 1259, 1267, 1269 (1999). The Fourth, Sixth, and Eighth
Circuits recently have issued decisions, in accord with the position earlier
advanced by the Third Circuit, directing the entry of judgment as a matter
of law based on proof rendered insufficient by the deletion of improperly
admitted evidence. See Redman v. John D. Brush & Co., 111 F. 3d 1174,
1178–1179 (CA4 1997); Smelser v. Norfolk Southern R. Co., 105 F. 3d 299,
301, 306 (CA6 1997); Wright v. Willamette Industries, Inc., 91 F. 3d 1105,
1108 (CA8 1996); accord, Aloe Coal Co. v. Clark Equipment Co., 816 F. 2d
110, 115–116 (CA3 1987).
3 We agreed to decide only the issue of the authority of a court of appeals
to direct the entry of judgment as a matter of law, and accordingly accept
as final the decision of the Eighth Circuit holding the testimony of Weis-
gram’s experts unreliable, and therefore inadmissible under Federal Rule
of Evidence 702, as explicated in Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., 509 U. S. 579 (1993). We also accept as final the Eighth Circuit’s

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II
Federal Rule of Civil Procedure 50, reproduced below, gov-
erns motions for judgment as a matter of law in jury trials.4
determination that the remaining, properly admitted, evidence was insuf-
ficient to make a submissible case under state law.
4 “Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative
Motion for New Trial; Conditional Rulings.
“(a) Judgment as a Matter of Law.
“(1) If during a trial by jury a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue, the court may determine the issue against
that party and may grant a motion for judgment as a matter of law against
that party with respect to a claim or defense that cannot under the control-
ling law be maintained or defeated without a favorable finding on that
issue.
“(2) Motions for judgment as a matter of law may be made at any time
before submission of the case to the jury. Such a motion shall specify the
judgment sought and the law and the facts on which the moving party is
entitled to the judgment.
“(b) Renewing Motion for Judgment after Trial; Alternative
Motion for New Trial. If, for any reason, the court does not grant a
motion for judgment as a matter of law made at the close of all the evi-
dence, the court is considered to have submitted the action to the jury
subject to the court’s later deciding the legal questions raised by the mo-
tion. The movant may renew its request for judgment as a matter of law
by filing a motion no later than 10 days after entry of judgment—and may
alternatively request a new trial or join a motion for a new trial under
Rule 59. In ruling on a renewed motion, the court may:
“(1) if a verdict was returned:
“(A) allow the judgment to stand,
“(B) order a new trial, or
“(C) direct entry of judgment as a matter of law; or
“(2) if no verdict was returned:
“(A) order a new trial, or
“(B) direct entry of judgment as a matter of law.
“(c) Granting Renewed Motion for Judgment as a Matter of Law;
Conditional Rulings; New Trial Motion.
“(1) If the renewed motion for judgment as a matter of law is granted,
the court shall also rule on the motion for a new trial, if any, by determin-
ing whether it should be granted if the judgment is thereafter vacated or

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It allows the trial court to remove cases or issues from the
jury’s consideration “when the facts are sufficiently clear that
the law requires a particular result.” 9A C. Wright & A.
Miller, Federal Practice and Procedure § 2521, p. 240 (2d ed.
1995) (hereinafter Wright & Miller). Subdivision (d) con-
trols when, as here, the verdict loser appeals from the trial
court’s denial of a motion for judgment as a matter of law:
“[T]he party who prevailed on that motion may, as ap-
pellee, assert grounds entitling the party to a new trial
in the event the appellate court concludes that the trial
court erred in denying the motion for judgment. If the
appellate court reverses the judgment, nothing in this
rule precludes it from determining that the appellee is
entitled to a new trial, or from directing the trial court
to determine whether a new trial shall be granted.”
Under this Rule, Weisgram urges, when a court of appeals
determines that a jury verdict cannot be sustained due to
reversed, and shall specify the grounds for granting or denying the motion
for the new trial. If the motion for a new trial is thus conditionally
granted, the order thereon does not affect the finality of the judgment.
In case the motion for a new trial has been conditionally granted and the
judgment is reversed on appeal, the new trial shall proceed unless the
appellate court has otherwise ordered. In case the motion for a new trial
has been conditionally denied, the appellee on appeal may assert error in
that denial; and if the judgment is reversed on appeal, subsequent pro-
ceedings shall be in accordance with the order of the appellate court.
“(2) Any motion for a new trial under Rule 59 by a party against whom
judgment as a matter of law is rendered shall be filed no later than 10
days after entry of the judgment.
“(d) Same: Denial of Motion for Judgment as a Matter of Law. If
the motion for judgment as a matter of law is denied, the party who pre-
vailed on that motion may, as appellee, assert grounds entitling the party
to a new trial in the event the appellate court concludes that the trial
court erred in denying the motion for judgment. If the appellate court
reverses the judgment, nothing in this rule precludes it from determining
that the appellee is entitled to a new trial, or from directing the trial court
to determine whether a new trial shall be granted.”

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an error in the admission of evidence, the appellate court
may not order the entry of judgment for the verdict loser,
but must instead remand the case to the trial court for a
new trial determination. Brief for Petitioner 20, 22; Reply
Brief 1, 17. Nothing in Rule 50 expressly addresses this
question.5
In a series of pre-1967 decisions, this Court refrained from
deciding the question, while emphasizing the importance of
giving the party deprived of a verdict the opportunity to
invoke the discretion of the trial judge to grant a new trial.
See Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212,
216–218 (1947); Globe Liquor Co. v. San Roman, 332 U. S.
571, 573–574 (1948); Johnson v. New York, N. H. & H. R. Co.,
344 U. S. 48, 54, n. 3 (1952); see also 9A Wright & Miller
§ 2540, at 370. Then, in Neely, the Court reviewed its prior
jurisprudence and ruled definitively that if a motion for judg-
ment as a matter of law is erroneously denied by the district
court, the appellate court does have the power to order the
entry of judgment for the moving party. 386 U. S., at 326;
see also Louis, Post-Verdict Rulings on the Sufficiency of the
Evidence: Neely v. Martin K. Eby Construction Co. Revis-
ited, 1975 Wis. L. Rev. 503 (surveying chronologically Court’s
decisions bearing on appellate direction of judgment as a
matter of law).
Neely first addressed the compatibility of appellate direc-
tion of judgment as a matter of law (then styled “judgment
n.o.v.”) with the Seventh Amendment’s jury trial guarantee.
It was settled, the Court pointed out, that a trial court, pur-
5 According to the Advisory Committee Notes to the 1963 Rule 50
amendments, this “omission” was not inadvertent:
“Subdivision (d) does not attempt a regulation of all aspects of the proce-
dure where the motion for judgment n.o.v. and any accompanying motion
for a new trial are denied, since the problems have not been fully can-
vassed in the decisions and the procedure is in some respects still in a
formative stage. It is, however, designed to give guidance on certain
important features of the practice.” Advisory Committee’s Notes on Fed.
Rule Civ. Proc. 50(d), 28 U. S. C. App., p. 769.

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suant to Rule 50(b), could enter judgment for the verdict
loser without offense to the Seventh Amendment. 386 U. S.,
at 321 (citing Montgomery Ward & Co. v. Duncan, 311 U. S.
243 (1940)). “As far as the Seventh Amendment’s right to
jury trial is concerned,” the Court reasoned, “there is no
greater restriction on the province of the jury when an ap-
pellate court enters judgment n.o.v. than when a trial court
does”; accordingly, the Court concluded, “there is no consti-
tutional bar to an appellate court granting judgment n.o.v.”
386 U. S., at 322 (citing Baltimore & Carolina Line, Inc. v.
Redman, 295 U. S. 654 (1935)). The Court next turned to
“the statutory grant of appellate jurisdiction to the courts of
appeals [in 28 U. S. C. § 2106],” 6 which it found “certainly
broad enough to include the power to direct entry of judg-
ment n.o.v. on appeal.” 386 U. S., at 322. The remainder of
the Neely opinion effectively complements Rules 50(c) and
50(d), providing guidance on the appropriate exercise of the
appellate court’s discretion when it reverses the trial court’s
denial of a defendant’s Rule 50(b) motion for judgment as a
matter of law. Id., at 322–330; cf. supra, at 449, n. 5 (1963
observation of Advisory Committee that, as of that year,
“problems [concerning motions for judgment coupled with
new trial motions] ha[d] not been fully canvassed”).
Neely represents no volte-face in the Court’s understand-
ing of the respective competences of trial and appellate
forums. Immediately after declaring that appellate courts
have the power to order the entry of judgment for a verdict
loser, the Court cautioned:
6 Section 2106 reads:
“The Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or order
of a court lawfully brought before it for review, and may remand the cause
and direct the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just under the
circumstances.”

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“Part of the Court’s concern has been to protect the
rights of the party whose jury verdict has been set aside
on appeal and who may have valid grounds for a new
trial, some or all of which should be passed upon by the
district court, rather than the court of appeals, because
of the trial judge’s first-hand knowledge of witnesses,
testimony, and issues—because of his ‘feel’ for the over-
all case. These are very valid concerns to which the
court of appeals should be constantly alert.” 386 U. S.,
at 325.7
Nevertheless, the Court in Neely continued, due consider-
ation of the rights of the verdict winner and the closeness of
the trial court to the case “do[es] not justify an ironclad rule
that the court of appeals should never order dismissal or
judgment for the defendant when the plaintiff ’s verdict has
been set aside on appeal.” Id., at 326. “Such a rule,” the
Court concluded, “would not serve the purpose of Rule 50
to speed litigation and to avoid unnecessary retrials.” Ibid.
Neely ultimately clarified that if a court of appeals deter-
mines that the district court erroneously denied a motion for
judgment as a matter of law, the appellate court may (1)
order a new trial at the verdict winner’s request or on its
own motion, (2) remand the case for the trial court to decide
whether a new trial or entry of judgment for the defendant
is warranted, or (3) direct the entry of judgment as a matter
7 Iacurci v. Lummus Co., 387 U. S. 86 (1967) (per curiam), decided
shortly after Neely, is illustrative. There, the Court reversed the appel-
late 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.” 387 U. S., at 88.

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of law for the defendant. Id., at 327–330; see also 9A
Wright & Miller § 2540, at 371–372.
III
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 in-
troduced 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 “auto-
matic 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
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

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Weisgram relies on cases holding that, in fairness to a ver-
dict winner who may have relied on erroneously admitted
evidence, courts confronting questions of judgment as a mat-
ter 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
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 dis-
cretion, 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 evi-
dence 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 ex-
cluded 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 Montgom-
ery 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).

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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 suffi-
cient facts to validate it in the eyes of the law, or when in-
disputable 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 “in-
formed discretion,” 386 U. S., at 329, and fairness to the par-
ties is surely key to the exercise of that discretion. But fair-
ness 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 ap-
peal 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 spec-
ify . . . 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, alter-
natively, for a new trial. And if judgment is instructed for
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 ver-
dict 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.

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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 evi-
dence 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 ini-
tially present less than their best expert evidence in the ex-
pectation 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 defend-
11 We recognize that it is awkward for an appellee, who is wholeheart-
edly 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 per-
suaded 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.” (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).

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ants 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 posi-
tion 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 circum-
stances, 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,
13 Cf. Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 327 (1967) (ob-
serving 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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however, that there are also cases in which a court of appeals
may appropriately instruct the district court to enter judg-
ment 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.