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By Tamara Ader

What happens if a trial court, using the Daubert factors, allows a plaintiff's expert to testify and it is later determined that the expert was not an expert, or that the basis for the expert's opinion was not validated and therefore deemed "unreliable"? Since a trial judge has considerable latitude in evaluating the admissibility of challenged expert testimony, General Electric v. Joiner, 522 U.S. 136 (1997) teaches us that the appellate court needs to overturn the judge's decision on admissibility only if it finds that the trial judge abused his discretion.

Assuming the appellate court does find that the expert should not have been allowed to testify, must that court send the case back to the trial court for a new trial, or may the appellate court determine that the case is over and decide in favor of the defendant?

This was the situation in Weisgram v. Marley Company, 120 S.Ct. 1011 (2000), in which the United States Supreme Court recently decided that courts of appeals have the authority to direct the entry of judgment as a matter of law after the appellate court has decided that, when ignoring the erroneously admitted expert testimony, the remaining evidence is found to be insufficient to support the jury verdict.

At trial, Weisgram introduced the testimony of three witnesses who were offered as experts. The experts were trying to prove that the alleged defect in the electric baseboard heater was causally connected to the fire. Marley Company objected before and during trial, as well as at the close of all of Weisgram's evidence and at the close of all of the evidence, that the testimony of the experts was unreliable and therefore inadmissible under Federal Rule of Evidence 702. The District Court for North Dakota denied all of the motions. At the end of the trial, after the jury verdict was read, Marley again requested judgment as a matter of law and, in the alternative, a new trial. Again, the District Court denied the motions.

Marley appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit held that "Marley's motion for judgment as a matter of law should have been granted." The Court decided that the experts' testimony was speculative and not scientifically sound; therefore the expert evidence was incompetent to prove the plaintiff's case. The court then looked at all of the remaining evidence in the light most favorable to Weisgram and found it insufficient to support the jury verdict, so the Eighth Circuit directed judgment as a matter of law for Marley. There was one dissenting judge.

Weisgram then appealed to the Supreme Court. He claimed that a court of appeals must remand the case, leaving to the district court's discretion the choice between final judgment for the defendant or a new trial of plaintiff's case.

The Supreme Court was guided by Federal Rule of Civil Procedure 50 and another Supreme Court opinion, Neely v. Martin K. Eby Construction Co., 386 U.S. 317 (1967). Neely had pointed out that courts of appeals should always be concerned with the trial judge's first hand knowledge of what went on at the trial and give considerable consideration to that fact. But the court of appeals also must remember that it has authority to make the final decision. The Supreme Court noted that, "appellate authority . . . 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." (at 1015)

The Court cited many reasons why this is a sufficient rule to further justice. First, Neely made it 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. As the Court stated, "entering judgement 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." (at 1020)

The Court also noted that a party who appeals and whose verdict is set aside will have notice of the deficiency before the close of the evidence: "On appeal the party will have the opportunity to argue in support of the jury's verdict or, alternatively, for a new trial." The Court also felt that the 14 days allowed for the filing of a petition for rehearing was sufficient time to formulate compelling grounds for a new trial, since this time period is longer than the ten days allowed to a verdict winner to move for a new trial after a trial court grants judgment as a matter of law.

Finally, the Court noted that "since Daubert, . . .parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. . . .[therefore 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." (at 1021).-------