George Elbert v. Howmedica, Inc., a Division of Pfizer Hospital Products Group, Inc.

143 F.3d 1208, 98 Daily Journal DAR 4833, 98 Cal. Daily Op. Serv. 3501, 40 Fed. R. Serv. 3d 409, 1998 U.S. App. LEXIS 9282, 1998 WL 227633

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 8, 1998
• Docket: 96-16249
• Status: Published

Opinions

PER CURIAM Opinion; Concurrence by Judge REINHARDT.

PER CURIAM:

George Elbert appeals from an order granting judgment as a matter of law to Howmedica, Inc., and denying his motion for a new trial. We reverse and remand.

Following a jury verdict, the district court entered judgment of $196,755 for Elbert against Howmedica for damages caused by an allegedly defective prosthetic knee manufactured by Howmedica. In the first appeal of this case, we reversed the judgment in an unpublished opinion because the district court allowed Elbert’s unqualified expert to testify. On remand, Howmedica moved “for entry of judgment in its favor on all remaining claims.” It cited to Rule 7, Fed.R.Civ.P., which deals with forms of motions. The magistrate judge called it a “novel motion,” treated it as a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), and granted it. The court also denied Elbert’s motion for a new trial, holding in relevant part that without the expert testimony the plaintiff could not establish the standard of care required of Howmedica.

The primary question presented by this appeal is whether a trial court, in deciding a Rule 50(b) motion following a remand from an appellate decision requiring exclusion of evidence, may exclude from its decision the evidence erroneously admitted at trial. We recently considered this question in an analogous context and held that when deciding a Rule 50(b) motion following trial, the trial court should not exclude such evidence. Specifically, we wrote in Schudel v. General Elec. Co., 120 F.3d 991, 995 (9th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998) that:

We now hold that when ruling on a Rule 50(b) motion, a district1 court should not exclude evidence erroneously admitted at trial. The record should be taken as it existed when the trial was closed. This rule promotes certainty: 'litigants need not supplement conditionally admitted evidence, perhaps, unnecessarily; and district courts need not speculate as to what other evidence might have been offered if the evidence had been excluded at trial. The rule promotes fairness: punishing a litigant for the court’s erroneous admission of evidence is unfair; and the remedy of a new trial is available to put both sides on an equal footing: (citation omitted).

Schudel involved the district court’s exclusion of evidence during its consideration of a Rule 50(b) motion, after the court thought better of a prior ruling admitting expert testimony. However, the logic applies with equal force to a Rule 50(b) motion made following remand after an appellate ruling that expert testimony was improperly admitted.

Thus, in this case, the trial judge erred in excluding the erroneously admitted evidence when deciding Howmedica’s Rule 50(b) motion after remand. Because the Rule 50(b) motion should have been denied, the trial court also erred in denying the plaintiffs motion for a new trial. Although the parties have varied opinions on what may occur in the trial court after remand, none of those issues are before us, and our consideration of those issues would be premature and based on pure conjecture as to what motions the parties might file.

REVERSED AND REMANDED.