452
Opinion of the Court
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 introduced 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 "automatic 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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