United States Court of Appeals For the First Circuit
No. 19-1935
DAMARIS SANTOS-ARRIETA, in representation of her minor son G.Q.S.; GUSTAVO QUERALES-SALCEDO, in representation of his minor son G.Q.S.; G.Q.S., minor represented by his parents Damaris Santos-Arrieta and Gustavo Querales-Salcedo,
Plaintiffs, Appellants,
v.
HOSPITAL DEL MAESTRO, or alternatively, John Doe Corporation, d/b/a Hospital Del Maestro; CONTINENTAL INSURANCE COMPANY,
Defendants, Appellees,
DR. FELIX VILLAR-ROBLES, in representation of his conjugal partnership; JANE DOE, in representation of her conjugal partnership; JOHN DOES 1, 2 AND 3; CONJUGAL PARTNERSHIP VILLAR- DOE; PUERTO RICO MEDICAL DEFENSE INSURANCE COMPANY,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, Magistrate Judge]
Before
Thompson and Lipez, Circuit Judges, and Laplante,* District Judge.
David Efron, with whom Etienne Totti del Toro and Law Offices of David Efron, PC were on brief, for appellants. Jeannette López de Victoria, with whom Nuyen Marrero Bonilla
* Of the District of New Hampshire, sitting by designation. and Sánchez Betances, Sifre & Muñoz Noya, P.S.C. were on brief, for appellees.
September 15, 2021 THOMPSON, Circuit Judge. After a less-than-typical six-
day trial in this medical-malpractice case, Plaintiffs Damaris
Santos-Arrieta, Gustavo Querales-Salcedo, and their minor child
G.Q.S. (altogether the "Plaintiffs") walked away with a jury
verdict of just under $5 million, compensating them for the brain
damage that Hospital del Maestro ("the Hospital" for short) and
Dr. Felix Villar-Robles ("Dr. Villar") negligently caused G.Q.S.
at his birth. The Hospital, convinced that it's now on the hook
for damages it didn't cause, filed post-trial motions to knock
that number down (or out completely). The district court took up
the Hospital's request and used the post-trial motions as an
opportunity to reconsider its in-trial ruling on the admissibility
of the life-care-planning expert's testimony--even though the
Hospital had ditched that argument pre-verdict. Reversing course
from its ruling at trial, the district court struck the testimony
of the only expert on future costs, deemed a new trial unnecessary,
and accordingly entered an amended judgment wiping out just over
$3 million (about 60%) of the verdict (i.e., the jury's calculation
of the future costs of G.Q.S.'s care). Plaintiffs, rattled by the
post-trial maneuver, ask us to revive the judgment or, in the
alternative, remand for a new trial on only future costs. Spying
legal error in the district court's grant of judgment as a matter
of law, we vacate the entry of amended judgment and remand for
further proceedings.
-3- BACKGROUND
This dispute arises out of the birth of G.Q.S. at the
Hospital in San Juan, Puerto Rico.1 In 2009, G.Q.S.'s mother,
Damaris Santos-Arrieta ("Santos"), was under the care of Dr.
Villar.2 Dr. Villar scheduled Santos for a Cesarean section,
commonly known as a C-section, at the Hospital. According to
Plaintiffs, the defendants engaged in a series of gaffes related
to G.Q.S.'s delivery, all resulting in his now having varied
physical and cognitive health care issues. And, Plaintiffs say,
these issues are all symptoms of brain damage, which the negligent
care from the Hospital caused.
The Hospital steadfastly disagrees.3 The Hospital's
theory of the case has been consistent throughout: Based on the
record evidence, G.Q.S. has autism, not brain damage and
accordingly, all of G.Q.S.'s physical, developmental, and
behavioral symptoms are attributable to that alone. And, because
there is no scientifically valid evidence to prove a link between
the Hospital's care and G.Q.S.'s autism, it cannot be held liable
here.
1 For the record, this is a diversity-jurisdiction case, because Plaintiffs are now citizens of Florida. 28 U.S.C. § 1332. 2 Dr. Villar and his insurer settled on the morning of trial,
so he's not with us on appeal here. 3 When we talk about the Hospital's legal arguments and
maneuvers, we're also referring to those of its named-defendant insurer, Continental Insurance Company, because they're represented by the same counsel.
-4- The autism-versus-brain-damage debate became the center
of three motions in limine before trial.4 Two of those motions in
limine are relevant here. The first is the defendants' motion to
exclude Plaintiffs' life-care planning expert, Gerri Pennachio.
Pennachio's life-care plan was designed to give a reasonable
estimate of the costs of caring for G.Q.S. for the rest of his
life. The defendants argued that Pennachio's calculations were
based on caring for G.Q.S.'s diagnosis of autism, which the court,
siding with the defendants on this point, had recently ruled off
the table as a source of damages.5 So, they argued, the estimates
of the costs were too speculative and would confuse the jury into
awarding damages based on autism, not brain damage.
The district court granted the motion to exclude
Pennachio's testimony on the same day as jury selection. In its
opinion and order, the district court didn't specify which Rule
(or Rules) of Evidence it was applying and did not cite any case
law in support of its ruling. But it reasoned that Pennachio's
testimony was inadmissible because "there is no readily apparent
way in which to subdivide the plan into expenses related to autism
4 A magistrate judge presided over both the pre-trial proceedings and the trial, as the parties consented to proceeding before a magistrate judge. See 28 U.S.C. § 636(c)(1). 5 In its ruling on another motion in limine, the district
court concluded there was no scientifically reliable evidence presented showing that the defendants' actions could cause autism, autism spectrum disorder, or autistic-like behaviors. Plaintiffs have not appealed that ruling.
-5- and expenses not related to autism." The district court surveyed
the references to autism in the life-care plan, and also concluded
that there was no way "to determine if the plaintiff's needs are
attributed to his autism exclusively, or if any of his other
conditions would require the same expenditures." For that reason,
the court precluded Pennachio from testifying. Plaintiffs have
not appealed that ruling.
The second relevant motion in limine sought to exclude
the testimony of Dr. Richard Katz, the defendants' life-care-
planning expert. That motion has its own procedural backdrop.
Dr. Katz became the center of attention on appeal because
Plaintiffs orally told the court that they intended to call the
defendants' life-care-planning expert Dr. Katz in their case-in-
chief. Faced with the exclusion of Pennachio, their only expert
designated to opine on G.Q.S.'s future costs, Plaintiffs
presumably saw Dr. Katz as the next-best thing. Although Dr. Katz
was retained by the defendants, his life-care plan calculated
G.Q.S.'s future costs to be well over $3 million.6 So, before the
Hospital filed its motion in limine, Plaintiffs sought to use Dr.
Katz to plug the new void in their case. Over the Hospital's first
set of objections, the district court ruled that Plaintiffs could
call Dr. Katz. The court noted that Plaintiffs had reserved the
6Plaintiffs' expert Pennachio estimated the cost to be $4,261,047.44.
-6- right in their pre-trial memorandum to call any of the defendants'
witnesses as their own.7 So, with that reservation in mind, the
district court informed the Hospital that if it didn't make Dr.
Katz available, the court would give an adverse instruction to the
jury based on his absence.8
Later that evening, the Hospital slapped down the motion
in limine. This time, the Hospital said that the testimony of Dr.
Katz should also be excluded from trial (the opening arguments of
which were set to begin the next morning). The district court
denied the motion in a one-sentence order based both on the reasons
offered in chambers the day before (i.e., that Plaintiffs reserved
the right to call the defense's witnesses) and the motion's
untimeliness.
But that wasn't the end of the fight over Dr. Katz, as
we'll get to momentarily. With all of the motions in limine
7 In federal court, it is within the district court's discretion to permit "a party [to] introduce the opinion testimony of the opposing party's expert," including by calling her at trial. 6 James Wm. Moore, Moore's Federal Practice § 26.80[1][a]; see also Nat'l R.R. Passenger Corp. v. Certain Temp. Easements, 357 F.3d 36, 42 (1st Cir. 2004) (holding no abuse of discretion in permitting a party to call in its case-in-chief the opposing party's expert); Kerns v. Pro-Foam of S. Ala., Inc., 572 F. Supp. 2d 1303, 1309 (S.D. Ala. 2007) (collecting cases). The Hospital does not argue on appeal that the district court abused its discretion in permitting Plaintiffs to call Dr. Katz in their case-in-chief. It argues only that Dr. Katz's testimony otherwise should not have been admitted under Rule 702. 8 The Hospital was now alone (with its insurer, as we mentioned
before) because Dr. Villar reached a settlement.
-7- resolved, the jury was empaneled and began to hear the evidence.
In Plaintiffs' case-in-chief, they proffered (among others) Dr.
Carolyn Crawford to opine on G.Q.S.'s injury and its cause. As
Dr. Crawford put it, her diagnosis was "brain damage, as a result
of the combined effect of prematurity [(i.e., the C-section was
scheduled too early)] and of lack of adequate oxygen and blood
flow to his brain, so that functionally his brain is damaged."
After Plaintiffs put on most of their evidence, they had
one last witness to call: Dr. Katz. But the Hospital had
surprising news. Dr. Katz wasn't in Puerto Rico; he was in St.
Louis. The Hospital complained that Dr. Katz shouldn't be admitted
at all because his report was based on the costs for caring for
autism, not brain damage. The district court, though, held firm.
It reminded the Hospital that it had already denied the Hospital's
motion in limine, and that it had informed the Hospital that if
Dr. Katz wasn't there to testify, the court would give an adverse-
inference instruction.9 As the court later put it: "I have
consistently stated that if Dr. Katz doesn't take the stand in
this trial, I will be giving a missing witness instruction. I
9 The specific adverse-inference instruction the court proposed was a so-called missing-witness instruction. That "instruction informs the jury that a party's failure to produce a particular witness may justify the inference that the witness' testimony would have been unfavorable to that party." Latin Am. Music Co. v. ASCAP, 593 F.3d 95, 101 (1st Cir. 2010) (describing the missing-witness instruction and the considerations for a district court in whether to deliver one).
-8- have not wavered about that. So either Dr. Katz testifies or there
will be a missing witness instruction." So, the court held a brief
recess to prepare the instruction, which would include Dr. Katz's
future-costs figure of $3,684,080.
Off the record, the parties devised a solution at the
district court's urging. To avoid the adverse instruction, the
Hospital eventually agreed that it would get Dr. Katz to Puerto
Rico to testify. Because he couldn't get there for a few days,
the parties decided (with the district court's blessing) to call
Dr. Katz in the defense's case, even though the Hospital didn't
want to call him at all. They also agreed (later on) that the
Hospital would take Dr. Katz on direct examination, even though he
was really being used as Plaintiffs' witness. And with that plan
in place, Plaintiffs rested--albeit without introducing any
evidence of future costs.
The Hospital then moved orally under Federal Rule of
Civil Procedure 50(a) for judgment as a matter of law, arguing
that there was no "evidence of brain damage, and the only thing
that we do have is the diagnosis of autism."10 The district court
10 Rule 50(a) provides: If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may . . . resolve the issue against the party; and . . . grant a motion for judgment as a matter of law
-9- denied the motion, concluding that it was for the jury to decide
whether G.Q.S. had brain damage, autism, or both.
Onward the trial went to the defense's case, where we at
last find Dr. Katz's testimony. Before Dr. Katz took the stand,
the district court cautioned the parties about the scope of Dr.
Katz's testimony. It warned that the parties were not to ask what
it cost to treat autism, given the court's prior ruling.
But then the court added something anew, which now has
surfaced as the cornerstone of this appeal. Walking back a bit
from its order denying the Hospital's motion in limine, the
district court signaled that the admission of the testimony was
only conditional. The court told the parties that it wasn't quite
sold on whether to admit Dr. Katz's testimony, so it would use the
trial as a sort-of Daubert hearing.11 As the district court put
it: "[If] [a]fter I hear all the testimony of Dr. Katz, I reach
against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. Fed. R. Civ. P. 50(a)(1). It further provides: "A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment." Id. R. 50(a)(2). 11 A Daubert hearing is an evidentiary hearing (often conducted in limine, i.e., preliminarily and only to the judge, In Limine, Black's Law Dictionary (11th ed. 2019)) used by district courts to resolve factual issues related to admissibility. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1319 n.10 (9th Cir. 1995) (defining a Daubert hearing); see also Fed. R. Evid. 702.
-10- the conclusion that his numbers are based exclusively on autism,
well, I might have to strike his testimony and order the jury to
disregard his testimony." The court explained that Dr. Katz's
proposed testimony didn't seem to be as bound up in autism as
Pennachio's opinion, but that it would need to be teased out in
the testimony what role autism played in the calculations.
Dr. Katz, a physician board-certified in physical
medicine and rehabilitation, then gave his testimony. Opining as
a life-care-planning expert, Dr. Katz was tasked with calculating
how much it would cost to care for G.Q.S. for the rest of his life.
The figure he gave the jury in this case was $3,634,080. On the
district court's key question of what that was based on (autism,
brain damage, or a combination of the two), Dr. Katz tried to
explain the underpinnings of his analysis. He testified at certain
points that he looks at the diagnosis, that "the diagnosis helps,"
and that it isn't as if "the diagnosis is unimportant." At other
points, he also testified that the diagnosis of autism wasn't the
"main issue" in his analysis; it was the needs of the patient.
And in response to questions the judge posed, Dr. Katz testified
that many of the costs would "overlap" between autism and brain
damage, and that even if G.Q.S. "didn't have a label autism," he
would "still need these things" in the life-care plan.
After that testimony, the district court asked if the
parties had any objection to Dr. Katz's testimony being admitted.
-11- Both the Hospital and Plaintiffs said no. So, the district court
ruled Dr. Katz's testimony admitted in full without objection,
closing arguments were delivered, and the jury was charged and
sent to deliberate.
Then the jury returned with a verdict for Plaintiffs to
the tune of $4,948,968. Of that total sum, the jury divvied up
the separate damages as follows: $651,000 for physical injuries,
$1,209,000 for pain and suffering, and $3,088,968 for future
expenses (Dr. Katz's area of expertise). And the jury laid 70% of
the blame on the Hospital, and 30% on Dr. Villar, leaving the
Hospital with a hefty bill of almost $3.5 million.
Taken aback by the jury verdict, the Hospital filed
simultaneously two post-trial motions: a renewed motion for
judgment as a matter of law under Federal Rule of Civil Procedure
50(b) and a motion for new trial under Rule 59(a)(1)(A).12 The
12 Rule 50(b) provides: If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), 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 motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may . . . allow judgment on the verdict, if the jury returned
-12- gist of both motions was that the Hospital didn't think there was
any evidentiary basis to find liability. In its Rule 50(b) motion,
the Hospital pressed that there was absolutely no evidence that
its negligence could have caused any brain damage to G.Q.S. or
G.Q.S.'s autism. The Rule 59(a) motion took on four specific
issues. First, it argued that Dr. Katz's testimony was highly
prejudicial to the Hospital and should've been excluded. Second,
it argued that there was no evidence that the Hospital's actions
caused G.Q.S.'s injuries because his only diagnosed condition was
autism. Third, it argued that the apportionment of damages between
Dr. Villar and the Hospital was against the weight of the evidence.
And finally, it argued that the jury's verdict should be reduced
because it was excessive (in legalese, we call this remittitur).
Plaintiffs, of course, strenuously objected and argued the court
should leave the chips where they landed.
The district court mostly agreed with the Hospital but,
on its own initiative, reorganized the arguments. It denied the
Rule 50(b) motion as to causation, concluding there was ample
a verdict; . . . order a new trial; or . . . direct the entry of judgment as a matter of law. Fed. R. Civ. P. 50(b). Rule 59(a)(1)(A) provides that "[t]he court may, on motion, grant a new trial on all or some of the issues--and to any party-- . . . after a jury trial for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]"
-13- evidence in the record that the Hospital's actions could have
caused brain damage to G.Q.S. As to Dr. Katz, the district court
slid the Hospital's argument (contained in its Rule 59(a) motion)
over to the Rule 50(b) analysis. The district court "reconsidered
its position" at trial and concluded that "Dr. Katz's testimony
should have been disallowed or . . . the jury should have been
instructed to disregard it." According to the district court, Dr.
Katz's testimony "suffer[ed] from the same vulnerability that
prompted the exclusion of Ms. Pennachio's testimony": his opinion
was "inextricably intertwined with GQS's autism," which the
district court had previously determined had no evidentiary link
in the record to any negligent conduct. And, because the district
court concluded there was no evidence of future costs besides Dr.
Katz's testimony, which "should have been disallowed," it set aside
the entire future-costs verdict of just over $3 million and entered
an amended judgment accordingly. Again, the district court did
not cite any Rules of Evidence or case law supporting this
reconsidered admissibility determination.
As to the Rule 59(a) motion, the district court denied
it. The court saw no need for a new trial on future costs because
of its ruling in the Rule 50(b) portion of the opinion
reconsidering the admissibility of Dr. Katz's testimony. The court
also rejected the Hospital's arguments that a new trial was
necessary because the jury's conclusions on causation and
-14- apportionment of liability were against the weight of the evidence.
And, as to remittitur, the district court concluded that, after
subtracting the future-costs damages, there was nothing warranting
reduction in the remaining jury verdict. The court did not
conditionally rule on the Rule 59(a) motion in the event the
judgment as a matter of law was reversed or vacated.
Plaintiffs appealed from the order granting the Rule
50(b) motion. Now it's our turn to dive in, adding some more
detail to these facts as they become more relevant to our analysis.
DISCUSSION
Plaintiffs start with two procedural objections to the
way things went down below. First, they argue that the district
court lacks the authority to change the evidentiary record from
trial in considering a Rule 50 motion. Second, they contend that
the district court went afield and granted judgment as a matter of
law on grounds not raised by the Hospital in its Rule 50(a) or
Rule 50(b) motions, which it isn't permitted to do. We start and
end with the second argument.13
13One note on Plaintiffs' first argument, though. We haven't yet decided this issue, and, given the analysis we're about to explain, we can ultimately leave it for another day. But, for the benefit of future readers, the case law casts doubt on Plaintiffs' proposition, including Supreme Court precedent calling out some of the cases Plaintiffs cite. See Weisgram v. Marley Co., 528 U.S. 440, 453-57 (2000) (describing this proposition, and specifically three of the cases our Plaintiffs cited in their brief, as being "of questionable consistency with Rule 50(a)(1)" (citing, among others, Schudel v. Gen. Elec. Co., 120 F.3d 991, 995–96 (9th Cir.
-15- As a brief primer, a motion under Rule 50(b) is a
"renewed" version of a party's motion brought under Rule 50(a).
See Fed. R. Civ. P. 50(b). The difference between the two
subsections is that a Rule 50(a) motion is "made at any time before
the case is submitted to the jury," id. R. 50(a)(2), whereas a
Rule 50(b) motion comes after the jury is discharged, id. R. 50(b).
A proper Rule 50(a) motion is a prerequisite to a proper Rule 50(b)
motion. "A Rule 50(b) motion cannot be used to introduce 'a legal
theory not distinctly articulated' in the Rule 50(a) motion." RFF
Family P'ship, LP v. Ross, 814 F.3d 520, 537 (1st Cir. 2016)
(quoting Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008)); see
Zachar v. Lee, 363 F.3d 70, 74 (1st Cir. 2004) ("The grounds for
the renewed motion under Rule 50(b) are limited to those asserted
in the earlier Rule 50(a) motion.").
1997); Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692, 695–96 (11th Cir. 1993); Midcontinent Broad. Co. v. N. Cent. Airlines, Inc., 471 F.2d 357, 358 (8th Cir. 1973))). Since Weisgram, some courts have concluded that a district court's Rule 50 ruling should be based only on admissible evidence and that a district court may reconsider the admissibility of the evidence submitted to the jury in weighing the Rule 50 motion. See, e.g., Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002); United States ex. rel. Salinas Constr., Inc. v. W. Sur. Co., No. C14-1963JLR, 2016 WL 3632487, at *6 & n.9 (W.D. Wash. July 7, 2016) (observing that "[d]istrict courts consider Weisgram to stand for the proposition that in determining whether there is a legally sufficient evidentiary basis for the verdict, erroneously admitted evidence will play no role in the court's application of the appropriate legal standard," and collecting cases (citation omitted)).
-16- We review de novo the district court's operation of this
standard here. See Lawes v. CSA Architects & Eng'rs LLP, 963 F.3d
72, 90 (1st Cir. 2020). Our review finds error.
In its ruling on the Rule 50(b) motion, the district
court took on a reexamination of the admissibility of Dr. Katz's
testimony. Yet, as the Hospital admits, its Rule 50(b) motion
doesn't mention Dr. Katz's testimony or make an argument that the
evidence was insufficient to support the verdict of future costs
on which Dr. Katz opined. The only argument that the Hospital
made regarding damages in its Rule 50(b) motion was that there was
no evidence to support any of the damages because there was no
evidence supporting liability. Instead, the Hospital points to
the discussion of Dr. Katz's testimony in its Rule 59(a) motion
and dubs the location of these arguments mere differences in
"procedural vehicle[s]"--although it doesn't cite case law
supporting its implicit argument that Rule 59(a) arguments can be
used as a basis to enter judgment as a matter of law.
Given the unique procedural history of this case, we
disagree with the Hospital that the procedural vehicle to which it
moored its evidentiary argument is irrelevant. Rather, we conclude
that the absence of any argument in either its Rule 50(a) or Rule
50(b) motion that Dr. Katz's testimony should be excluded renders
the district court's sua sponte tackling of the future-costs issue
error.
-17- As we've explained, the scope of a Rule 50(b) motion is
confined to those grounds raised in the Rule 50(a) motion. Thus,
we require that the Rule 50(a) motion be "sufficiently specific so
as to apprise the district court of the grounds relied on in
support of the motion." T G Plastics Trading Co. v. Toray Plastics
(Am.), Inc., 775 F.3d 31, 39 (1st Cir. 2014) (quoting Monteagudo
v. Asociacion de Empleados del Estado Libre Asociado, 554 F.3d
164, 170 (1st Cir. 2009)). The Rule 50(b) renewal requirement
serves two purposes. First, it "alert[s] the opposing party to
the movant's claim of insufficiency before the case goes to the
jury, so that his opponent may possibly cure any deficiency in his
case should the motion have merit." Robles-Vazquez v. Garcia, 110
F.3d 204, 206 (1st Cir. 1997) (quoting Martinez Moll v. Levitt &
Sons of P.R., Inc., 583 F.2d 565, 569 (1st Cir. 1978)). And
second, it allows the judge to "rule on the adequacy of the
evidence without impinging on the jury's fact-finding province."
Id. (quoting Martinez Moll, 583 F.2d at 569).
That reasoning reveals why, "[w]hile it is accepted that
a judge may sua sponte grant a directed verdict pursuant to Fed.
R. Civ. P. 50(a) . . .[,] allowing a judge to sua sponte raise a
new issue post-verdict, and proceed to overturn a jury verdict on
that basis contravenes the dictates of Rule 50(b)."14 Id. at 207
14"Directed verdict" is the term the Rules used for a Rule 50(a) motion for "judgment as a matter of law" prior to the 1991
-18- (second alteration in original) (quoting Am. & Foreign Ins. Co. v.
Bolt, 106 F.3d 155, 159 (6th Cir. 1997)); accord Mountain Dudes v.
Split Rock Holdings, Inc., 946 F.3d 1122, 1130 (10th Cir. 2019)
("district courts are limited by Rule 50 to granting judgment as
a matter of law only on grounds raised by the parties"); Doe v.
Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir. 2004) ("a
district court does not have the authority under Rule 50(b) to
rule sua sponte on issues not raised by the parties"); Murphy v.
Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) ("For the same
reasons a party may not seek a JNOV on grounds not alleged in their
motion for directed verdict, a district court may not enter a JNOV
on grounds not asserted in a party's motion for directed
verdict.")15; Kutner Buick, Inc. v. Am. Motors Corp., 868 F.2d 614,
617 (3d Cir. 1989) (reversing grant of Rule 50 motion on ground
not presented by the party in either its pre-verdict or post-
declaration-of-mistrial motion); Mozingo v. Correct Mfg. Corp.,
amendment. See Fed. R. Civ. P. 50 advisory committee's note to 1991 amendment. A motion for a directed verdict, like a Rule 50(a) motion, came before the case was sent to the jury. 9B Charles Alan Wright & Arthur B. Miller, Federal Practice and Procedure § 2521 (3d ed. 2021). 15 "JNOV" (short for judgment non obstante veredicto) refers
to a judgment notwithstanding the verdict, JNOV, Black's Law Dictionary (11th ed. 2019), which was yet another pre-1991 term, this time for a modern-day Rule 50(b) motion. Fed. R. Civ. P. 50 advisory committee's note to 1991 amendment. Like its successor, a motion for judgment n.o.v. was one made after the verdict was returned. 9B Wright & Miller, supra, § 2521.
-19- 752 F.2d 168, 172 (5th Cir. 1985) (reversing grant of Rule 50(b)
motion where the party never argued the issue).16
This line of case law jibes with the plain text of Rule
50(b), which describes a post-verdict motion as a "renewed" version
of the pre-verdict motion. Fed. R. Civ. P. 50(b); see also id.
advisory committee's note to 1991 amendment ("the post-verdict
motion is a renewal of an earlier motion made at the close of the
evidence," and "[a] post-trial motion for judgment can be granted
only on grounds advanced in the pre-verdict motion"). As the Sixth
Circuit explained, "it seems illogical . . . to permit a judge to
overturn a jury verdict on his own motion, where the rule
specifically forbids him to grant the same motion were it brought
by one of the parties." Am. & Foreign Ins. Co., 106 F.3d at 160.
We agree.
Here, the procedural failure is twofold. Not only did
the Hospital fail to raise any discussion of Dr. Katz in a Rule
16 HK Systems v. Eaton Corp., 553 F.3d 1086, 1089 (7th Cir. 2009), again not cited by the Hospital, isn't to the contrary. There, the Seventh Circuit affirmed the district court's entry of judgment as a matter of law post-trial where the defendant didn't raise the issue in its Rule 50 papers. But there, the court was reconsidering its prior denial of a motion for summary judgment. See id. So, although styled a Rule 50 ruling, it was a motion to reconsider. Here, though, the district court reconsidered its prior evidentiary ruling, and then used that evidentiary ruling to enter an amended judgment as a matter of law based on the sufficiency of the evidence. The district court's decision as to the admissibility of Dr. Katz's testimony could not be an independent basis to enter summary judgment. So, HK Systems is different from the circumstance here.
-20- 50(a) motion pre-verdict, it also did not mention his testimony in
its Rule 50(b) motion post-verdict. As to the failure to raise
the issue pre-verdict, the Hospital has two retorts. First, the
Hospital avers that its Rule 50(a) argument was sufficient to have
preserved the exclusion of Dr. Katz as a basis for its Rule 50(b)
motion. Yet, as the Hospital admits, both Rule 50 motions--pre-
and post-verdict--concerned the purported lack of evidence that
G.Q.S. had brain damage or that the Hospital caused his brain
damage or autism. Neither motion ever once mentioned any Rule of
Evidence or argued that any witness should not have testified. It
is a far jump from saying there is insufficient evidence of
causation to saying that a future-damages expert is inadmissible
under some Rule of Evidence. The Hospital's motion was not
"sufficiently specific" to preserve the admissibility argument. T
G Plastics Trading Co., 775 F.3d at 39 (quoting Monteagudo, 554
F.3d at 170).
Second, the Hospital contends that it couldn't have
argued about Dr. Katz in its Rule 50(a) motion because Dr. Katz
had not yet testified at that point in the trial. Although the
Hospital's chronicle of the timeline is true, the Hospital does
not argue that it could not have made more than one Rule 50(a)
motion at trial. See, e.g., Jackson v. Bunge Corp., 40 F.3d 239,
241 (7th Cir. 1994) (noting that, "[a]t the close of plaintiff's
evidence, [defendant] filed two separate motions for judgment as
-21- a matter of law pursuant to Rule 50" (emphasis added)); All. for
Telecomms. Indus. Sols., Inc. v. Hall, No. CIV. CCB-05-440, 2007
WL 3224589, at *12 n.24 (D. Md. Sept. 27, 2007) (considering under
Rule 50(b) an argument not raised in the first pre-verdict 50(a)
motion, but in the second pre-verdict 50(a) motion). Nor does the
Hospital argue that it could not have waited to make its Rule 50(a)
motion until after Dr. Katz had testified. See Fed. R. Civ. P.
50(a) ("A motion for judgment as a matter of law may be made at
any time before the case is submitted to the jury." (emphasis
added)). Instead, the Hospital appears to have made a tactical
decision to try to cut the trial short by arguing that there was
not sufficient evidence of causation (which would have mooted the
need to call any other witnesses, including Dr. Katz).
The Hospital's pre-verdict failure was not a matter of
mere technical noncompliance, either. Rather, the Hospital, pre-
verdict, affirmatively said that Dr. Katz's testimony should be
admitted. Again, in the midst of trial, the district court
announced that it was subjecting Dr. Katz's testimony to a Daubert-
like proceeding and only conditionally admitting it. At the
conclusion of Dr. Katz's testimony, the district court asked the
Hospital point-blank whether it had any objection. And the
Hospital's answer was unequivocal--no objection:
THE COURT: . . . . My questions are more basic or simple ones. Is there any objection to -- Dr. Katz'[s] testimony to remain on the
-22- record and for the jury to take into account just like any other, as one more testimony in this entire trial? . . . [The Hospital's counsel]: No. THE COURT: No? [Plaintiffs' counsel]: No. THE COURT: No. Okay. [The Hospital's counsel]: What does no mean? THE COURT: No means there's no objection. [Plaintiffs' counsel]: There's no objection. THE COURT: So his testimony remains as part of the record at trial.
From there, Dr. Katz descended from the witness stand, the Hospital
rested its case, and closing arguments were delivered--without the
Hospital raising the admissibility of Dr. Katz's testimony again.17
So it's not just that the Hospital failed to mention Dr. Katz's
testimony in a pre-verdict Rule 50(a) motion--it affirmatively
told Plaintiffs and the district court that admissibility was no
longer an issue.18
17 At oral argument, the Hospital tried to inject some ambiguity into this unequivocal statement by pointing to the Hospital's counsel's question "What does no mean?" But we see no ambiguity because, for one, there's nothing confusing about the court's question. And, importantly, the Hospital never tried to correct the record once the court clarified that it understood the Hospital had no objection. 18 The Hospital's decision not to object to the admission of
Dr. Katz's testimony at the close of trial could be viewed as another strategic decision. At closing, the Hospital used Dr. Katz's testimony to bolster its theory that G.Q.S. had only autism, not brain damage. The Hospital pointed to Dr. Katz's admissions that his review of the medical record revealed only a diagnosis of
-23- Moreover, even setting aside the weaknesses in the
Hospital's Rule 50(a) excuse, it still does not explain why the
district court could grant judgment as a matter of law under Rule
50(b) where the issue also wasn't raised in the Hospital's Rule
50(b) motion. Nor does the Hospital make any attempt to shoehorn
its case into any exception to Rule 50's procedural requirements,
again assuming some exception--including out-of-circuit exceptions
we have not yet considered and the Hospital has not cited--might
apply here. See, e.g., Coons v. Indus. Knife Co., 620 F.3d 38, 41
(1st Cir. 2010) (concluding it was not error to grant judgment as
a matter of law on an issue raised in a Rule 59(e) motion where
the issue was sufficiently raised in a Rule 50(a) motion); see
also Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288
(5th Cir. 2007) (excusing failure to raise an issue in a Rule 50(b)
motion as "technical noncompliance" where "the purposes of the
rule are satisfied" because the 50(a) arguments and objections to
jury instructions pertaining to the sufficiency of evidence made
clear that the party was challenging the later-raised issue
(quoting Scottish Heritable Trust, PLC v. Peat Marwick Main & Co.,
81 F.3d 606, 610 (5th Cir. 1996))).
Aside from Rule 50 mechanics, the Hospital has yet
another argument to try to hold on to its post-trial victory. It
autism, that the records did not show any record of brain damage, and that he did not see clinical evidence of brain damage in G.Q.S.
-24- defends the procedure deployed below by suggesting that the
evidentiary issue was "secondary" to the district court's
supposedly independent ruling that there was insufficient evidence
to support the jury's future-costs verdict. That is, as we can
surmise from the Hospital's brief, the Hospital thinks that the
district court's Rule 50(b) determination was not that Dr. Katz's
testimony was inadmissible and, as a result, that judgment as a
matter of law should enter because there was no other evidence of
future costs. Rather, the Hospital says, the district court's
grant of judgment as a matter of law was based on a determination
that Dr. Katz's testimony--even if admissible--was insufficient to
support a jury verdict of future costs.
This argument, too, doesn't hold water. Even if we
indulge the Hospital's view of the sequence, the Hospital still
has not shown--and we cannot find--where in its Rule 50(a) or 50(b)
motions that it argued that Dr. Katz's testimony, even if
admissible, was insufficient as a matter of law to support the
future-costs verdict.19 Rather, the Hospital's Rule 50(a) motion
19 To be clear, we don't read the district court's stacking of the dominoes the same way as the Hospital (though we acknowledge the decision is a bit vague on this point). Rather, we see the logical flow of the district court's opinion as: (1) it took the opportunity to "reconsider[] its position" on the admissibility of Dr. Katz's testimony; (2) it concluded that his "testimony should have been disallowed" because it "suffer[ed] from the same vulnerability that prompted the exclusion of Ms. Pennachio's testimony"; and (3) it then concluded that "the jury's verdict on future expenses . . . cannot stand."
-25- argued (as we noted earlier) that Plaintiffs did not "causally
relate any of the events that happened during the birth to any
damage" because there was no "evidence of brain damage," only "the
diagnosis of autism, which cannot be related to the events that
happened during the birth." And, poring through the nitty-gritty
details of the papers, the Rule 50(b) motion argued: (1) that
Plaintiffs "did not appropriately establish a causal nexus between
the alleged breach and the harm, whether that be brain damage or
autism"; (2) that there was no evidence that the Hospital's actions
were "the direct cause of plaintiff's autism diagnosis"; and (3)
that there was no "actual proof of brain damage in any part of the
medical records." Thus, the Hospital argued that the entire
verdict should be set aside. The Rule 50(b) motion did not argue,
as the Hospital now presses on appeal, that Dr. Katz's testimony
was insufficient as a matter of law to support the future-costs
verdict. The Rule 50(b) motion does not allude to future costs,
does not mention Dr. Katz, and does not argue that his opinion was
based on the cost of caring for autism. So, even if the Hospital's
understanding of the decision below is correct, that reading does
not dodge the key problem here. The district court still granted
post-verdict judgment as a matter of law on an issue not raised by
the Hospital in either its Rule 50(a) or 50(b) motion. Which, as
we have explained, is error.
-26- In sum, we conclude that the district court erred when
it jumped to an issue, which the Hospital sensibly pressed only as
a ground for a new trial, to short-circuit the process and enter
an amended judgment striking nearly 60% of the jury's verdict. So
we will reverse, vacate its order entering an amended judgment,
and remand for the district court to consider whether it should
grant a new trial on the issue of future costs--which we note it
was obligated to assess in its consideration of the Hospital's
new-trial motion. Under Federal Rule of Civil Procedure 50(c),
when a district court grants judgment as a matter of law under
Rule 50, it "must also conditionally rule on any motion for a new
trial by determining whether a new trial should be granted if the
judgment is later vacated or reversed." But here, the district
court denied the Hospital's new-trial motion on the issue of future
costs because the court entered an amended judgment vacating the
future-costs portion of the verdict, and no other testimony on
future costs was offered aside from Dr. Katz. However, the
district court also clarified that the other portions of the
verdict--including the Hospital's liability for damages for
physical injuries and pain and suffering--were unaffected by the
amended judgment because Dr. Katz's testimony was limited to future
expenses. So, we remand to the district court for its
consideration and determination of only the future-costs portion
of the Hospital's Rule 59 motion.
-27- EPILOGUE
Before we close out, we add one additional word on the
evidentiary issue. Although we don't reach the district court's
admissibility determination, we note that we have some concerns
with the district court's reasoning in excluding Dr. Katz. Turning
to our specific concern, the district court thought that when Dr.
Katz testified that his opinion was based on G.Q.S.'s needs, not
a diagnosis of autism, that testimony was "a slippery slope." Yet
in the examples the district court cited to emphasize the role the
diagnosis played, it selectively quoted and ignored the immediate
surrounding context of the statements. And the context showed
that the diagnosis wasn't the whole picture. Just as one example,
the court quoted Dr. Katz as saying that "he won't say the
diagnosis is unimportant," but in that very sentence Dr. Katz said
that the diagnosis is "not the main issue. It's the needs." And,
to put a finer point on it, Dr. Katz testified at trial in response
to the court's question (which he paraphrased back): "in other
words, if we didn't have a label autism, would he still need these
things? Yes, he would." Moreover, one thing the parties could
agree on below was that Dr. Katz was not called as a causation
expert. Rather, Dr. Katz was presented as a physician whose
expertise is in "budget[ing] the future needs of persons who need
future care." It was Dr. Crawford's role to tell the jury the
link between G.Q.S.'s symptomology and the Hospital's care. And
-28- she told the jury that G.Q.S.'s brain damage caused problems with
walking, speech, behavior, intellect, impulsivity, and
socialization--all needs that Dr. Katz's plan calculated the costs
of caring for. But we leave it to the parties and the district
court to hash this out below.
* * * *
Our review complete, we vacate the judgment below and
remand for further proceedings consistent with this opinion. Costs
to appellants.
-29-