Cite as: 528 U. S. 440 (2000)
Opinion of the Court
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 evidence 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 initially present less than their best expert evidence in the expectation 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 wholeheartedly 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 persuaded 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).
455
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007