                            In the
 United States Court of Appeals
                For the Seventh Circuit
                         ____________

No. 04-2158
ARTHUR W. FUESTING,
                                              Plaintiff-Appellee,
                               v.

ZIMMER, INC.,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
                for the Central District of Illinois.
           No. 02 CV 02251—Harold A. Baker, Judge.
                         ____________
       ARGUED MAY 3, 2006—DECIDED MAY 22, 2006
                     ____________



  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. This opinion resolves plaintiff-
appellee Fuesting’s petition for rehearing and addresses the
question of what relief the court of appeals has the power to
award where there was prejudicial evidentiary error in the
district court. Our August 30, 2005 decision in this case
found prejudicial error in the district court’s decision to
admit Fuesting’s expert testimony and remanded with
instructions to enter judgment in favor of Zimmer. See
Fuesting v. Zimmer, 421 F.3d 528 (7th Cir. 2005). Subse-
quently, Fuesting filed a petition for rehearing. We stayed
2                                               No. 04-2158

consideration of the petition because the Supreme Court
had granted a writ of certiorari on the question of whether
a court of appeals can review the sufficiency of the evidence
supporting a civil jury verdict where the appellant failed to
renew its Rule 50(a) motion after the verdict. See Unitherm
Food Systems, Inc. v. Swift-Eckrich, Inc., 543 U.S. 1186
(2005). We ordered the parties to file responsive memo-
randa, if they so chose, within 14 days of the Supreme
Court’s decision. On January 23, 2006, the Supreme Court
rendered its decision. Unitherm Food Systems, Inc. v.
Swift-Eckrich, Inc., --- U.S. ---, 126 S. Ct. 980 (2006). The
parties have submitted responses, and Fuesting argues that
the Unitherm decision precludes this court from awarding
any relief to Zimmer because Zimmer failed to file, after the
verdict, either a Rule 50(b) motion for judgment as a matter
of law or a Rule 59 motion for a new trial. Zimmer argues
that Unitherm only addresses appeals based on the suffi-
ciency of the evidence, and does not disturb this court’s
decision, which was based on the improper admission of
testimony. We conclude that Unitherm does not prevent us
from granting Zimmer relief from the district court’s error.
The proper remedy, however, should have been the grant of
a new trial. For reasons discussed in more detail below, we
grant the petition for rehearing and vacate only the portion
of our prior opinion directing the district court to enter
judgment for the defendant.


                   I. BACKGROUND
  Fuesting filed this suit against Zimmer Inc., the manufac-
turer of his failed prosthetic knee, alleging negligence and
strict liability. Our prior decision explains the factual
background and discusses in detail our reasons for conclud-
ing that, pursuant to Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1993), the district court
erred in admitting the testimony of Dr. James Pugh,
No. 04-2158                                                3

Fuesting’s expert witness. See Fuesting, 421 F.3d at 537. In
this opinion, we assume familiarity with our prior decision
and will discuss only the relevant procedural history.
   Prior to trial, Zimmer moved in limine to exclude the
testimony of Dr. Pugh, pursuant to Federal Rule of Evi-
dence 702. The district court denied Zimmer’s motion in
limine and the trial proceeded. Dr. Pugh testified at trial,
as did Fuesting’s orthopaedic surgeon, Dr. James
McKechnie. Both Dr. Pugh and Dr. McKechnie offered
opinions on Zimmer’s causation of Fuesting’s injuries;
specifically, they testified that Zimmer’s air sterilization
method led to Fuesting’s injuries. Fuesting did not offer any
other medical or expert witnesses and only introduced the
deposition testimony of Zimmer’s chief scientific officer. At
the close of evidence, Zimmer moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure
50(a). The district court denied the motion and submitted
the case to the jury. On April 2, 2004, the jury returned a
verdict in favor of Fuesting. Though the court granted
Zimmer’s motion to extend the time to file postverdict
motions, Zimmer never renewed its Rule 50(a) motion for
judgment as a matter of law and did not file any postverdict
motions. Zimmer subsequently filed its appeal, arguing that
it was entitled to a new trial because (1) the district court
erred in admitting Dr. Pugh’s testimony, and (2) the jury
instructions were erroneous.
  We concluded that, pursuant to Daubert and Rule 702,
Dr. Pugh’s testimony was scientifically unreliable and the
district court committed prejudicial error in admitting the
testimony. See Fuesting, 421 F.3d at 536-37. Because we
deemed the remaining evidence insufficient for Fuesting to
establish his claims as a matter of law, we reversed and
remanded to the district court with instructions to enter
judgment for Zimmer.
4                                               No. 04-2158

                      II. ANALYSIS
  The question before us is what relief, if any, may be
awarded to Zimmer in light of the Supreme Court’s decision
in Unitherm. In that case, the plaintiff, Unitherm, sued
ConAgra seeking a declaration that a ConAgra patent was
invalid. Unitherm, 126 S. Ct. at 983. Prior to the submission
of the case to the jury, ConAgra moved for judgment as a
matter of law pursuant to Rule 50(a), arguing that the
evidence was insufficient for a reasonable jury to find in
Unitherm’s favor. Id. at 984. The district court denied the
motion. Id. After the jury returned a verdict for Unitherm,
ConAgra appealed without filing any postverdict motions.
Id. On appeal, the Federal Circuit found that the evidence
Unitherm presented was legally insufficient to support the
verdict, and therefore it vacated the jury’s judgment and
ordered a new trial. Id. The Supreme Court concluded that,
in the absence of postverdict Rule 50 or 59 motions, the
court of appeals was without the power to assess the
sufficiency of the evidence and could not award a new trial
or order the entry of judgment for ConAgra. See id. at 989
(“we hold that since respondent failed to renew its
preverdict motion as specified in Rule 50(b), there was no
basis for review of respondent’s sufficiency of the evidence
challenge in the Court of Appeals”).
  Unitherm compels us to vacate our instructions to the
district court to enter judgment for Zimmer because the
Supreme Court has now indicated that a court of appeals
may not award judgment due to insufficiency of the evi-
dence where no Rule 50(b) motion was filed after the
verdict. The Court stated:
    This Court has addressed the implications of a
    party’s failure to file a postverdict motion under
    Rule 50(b) on several occasions and in a variety of
    procedural contexts. This Court has concluded that,
    “[i]n the absence of such a motion” an “appellate
No. 04-2158                                                  5

    court [is] without the power to direct the District
    Court to enter judgment contrary to the one it had
    permitted to stand.” Cone v. West Virginia Pulp &
    Paper Co., 330 U.S. 212 (1947).
Unitherm, 126 S. Ct. at 985 (bracketed text in original;
parallel citations omitted). Though our prior decision was
not explicitly framed as a determination that the evidence
was insufficient, on review we conclude that weighing the
value of Fuesting’s remaining evidence after excising Dr.
Pugh’s expert testimony crossed the line into activity
proscribed by Unitherm.
  Our conclusion exposes a subtle tension between the
ability of the appellate court to engage in harmless error
analysis and the court’s responsibility not to weigh the
sufficiency of the evidence in the absence of a properly filed
postverdict motion; determining whether an evidentiary
error is harmless necessarily requires some weighing of the
sufficiency of the evidence. Our prior decision in this case is
a paradigmatic example of this tension, since we were
required to assess the sufficiency of the remaining evidence
(the testimony of Fuesting’s orthopaedic surgeon and the
deposition excerpts) in the absence of the testimony we
deemed inappropriately admitted in order to determine
whether the district court’s error prejudiced Zimmer. See
Fuesting, 421 F.3d at 537 (“Without Pugh’s testimony,
Fuesting cannot establish either defect or negligence. . . .
And, save for Dr. McKechnie’s sparse testimony on the
subject . . . Fuesting has offered no other evidence as to
causation”).
  Unitherm suggests that it will usually be inappropriate
for a court of appeals to award judgment in the absence of
a properly filed Rule 50(b) motion because awarding
judgment involves a complete examination of the sufficiency
of the evidence that must take place first in the district
6                                                    No. 04-2158

court.1 See Unitherm, 126 S. Ct. at 986. We thus erred in
awarding judgment to Zimmer.
  However, Unitherm does not foreclose the ability of the
appellate court to order a new trial where evidence was
improperly admitted. To the extent that the Court held that
awarding a new trial would be improper in Unitherm, the
Court was specifically addressing the situation of a litigant
seeking a new trial on the basis of the insufficiency of the
evidence. See Unitherm, 126 S. Ct. at 987-88 (“[respondent]
seeks a new trial based on the legal insufficiency of the
evidence”) (emphasis in original). The Court did not hold
that a court of appeals may not award a new trial on the
basis of an erroneous evidentiary decision.
  There is some potential for confusion because Unitherm
includes some strong language regarding the necessity of
postverdict motions, language that Fuesting reads to limit
a party’s ability to challenge any legal error where it failed
to file a postverdict motion. See Unitherm, 126 S. Ct. at 987-
88 (“the precise subject matter of a party’s Rule 50(a)
motion—namely, its entitlement to judgment as a matter of
law—cannot be appealed unless that motion is renewed
pursuant to Rule 50(b)”). After discussing the line of cases
undergirding its holding, the Court wrote: “Accordingly,
these outcomes merely underscore our holding today—a
party is not entitled to pursue a new trial on appeal unless
that party makes an appropriate postverdict motion in the
district court.” Id. The potential for confusion in the context
of evidentiary challenges exists because, as discussed above,
the prejudice analysis in appellate review of evidentiary



1
  Unitherm does not address the question of whether an appellate
court may grant judgment for the defendant where no evidence
remains after the court of appeals reverses an evidentiary decision
in the trial court. We need not, and do not, answer that question
today.
No. 04-2158                                                 7

decisions involves what might be considered an implicit
weighing of the sufficiency of the evidence. An appellate
court cannot truly determine whether an error was harm-
less without considering the force of the other evidence
presented to the jury. Cf. Williams v. Pharmacia, Inc., 137
F.3d. 944, 951 (7th Cir. 1998) (finding error to be harmless
because “there was sufficient evidence independent of the
hearsay testimony upon which the jury could rely in finding
Pharmacia liable for sex discrimination under each of
Williams’s Title VII claims”). Perhaps adding to the poten-
tial for Fuesting’s confusion, there are numerous cases in
which the appellant filed a pre-trial motion in limine as
well as a postverdict motion for a new trial based on the
denied evidentiary motion. See, e.g., Weisgram v. Marley
Co., 528 U.S. 440 (2000) (affirming the ability of the
appellate court to award judgment as a matter of law where
evidence was insufficient after improperly admitted evi-
dence was excised from the record).
  Nevertheless, the ability of the court of appeals to award
a new trial where there is prejudicial evidentiary error is
well-established and undisturbed by Unitherm. The Federal
Rules of Evidence make clear that a party is not required to
renew an objection to an evidentiary motion in order to
preserve its right to appeal. See Fed. R. Evid. 103(a) (“Once
the court makes a definitive ruling on the record admitting
or excluding evidence, either at or before trial, a party need
not renew an objection or offer of proof to preserve a claim
of error for appeal”). The advisory committee notes explain
that the 2000 amendment to Rule 103 resolves a dispute in
the courts as to whether “a losing party must renew an
objection or offer of proof when the evidence is or would be
offered at trial, in order to preserve a claim of error on
appeal.” Though, as the committee notes reveal, Rule 103 is
primarily focused on renewal at trial, it follows that
renewal through postverdict motions is unnecessary if the
rule dictates that a claim of error for appeal is preserved by
8                                                No. 04-2158

the original objection or motion in limine. We cannot
reconcile Rule 103’s explicit pronouncement that a motion
in limine “preserve[s] a claim of error on appeal” with
Fuesting’s view of the Unitherm case, which would preclude
the court from awarding any relief to a party that was
prejudiced by an evidentiary error but did not file a
postverdict motion. A preserved claim of error on appeal is
meaningless if the court of appeals, handcuffed by Rule 50,
has no authority to award relief. Had the Supreme Court
intended to create such a broad rule, we presume the Court
would have done so explicitly, addressing Rule 103 as well
as the substantial body of cases in which courts of appeals
have awarded new trials purely on the basis of evidentiary
errors. See, e.g., Cerabio LLC v. Wright Medical Technology,
Inc., 410 F.3d 981 (7th Cir. 2005); Milhailovich v. Laatsch,
359 F.3d 892 (7th Cir.), cert. denied, 543 U.S. 926 (2004);
Mukhtar v. California State University Hayward, 299 F.3d
1053 (9th Cir. 2002); Phoenix Associates III v. Stone, 60
F.3d 95 (2d Cir. 1995); Jankins v. TDC Management Corp.
Inc., 21 F.3d 436 (D.C. Cir. 1994); Public Service Co. of
Indiana Inc. v. Bath Iron Works Corp., 773 F.2d 783 (7th
Cir. 1985). Furthermore, the Unitherm decision does not
purport to undermine those cases which explicitly state that
a post-judgment motion is not a prerequisite to an appeal.
See Probus v. Kmart, 797 F.2d 1207, 1209 n.2 (7th Cir.
1986) (“Although the plaintiff made no post-judgment
motion for a new trial on the basis of these errors, it is well
settled that such a motion is not a prerequisite to appeal”);
Sherrill v. Royal Industries, Inc., 526 F.2d 507, 509 n.2 (8th
Cir. 1975) (stating, in case involving jury instruction error,
“[a] motion for a new trial under Fed. R. Civ. P. 59 is not a
prerequisite to an appeal”).
  Fuesting’s reading of Unitherm is also at odds with the
conclusions of leading commentators. See, e.g., 12 J. MOORE
ET AL., MOORE’S FEDERAL PRACTICE § 59.55 (3d ed. 2005) (“A
motion for a new trial is not required to preserve properly
No. 04-2158                                                         9

made objections for appellate review, and is therefore not a
prerequisite to an appeal from the judgment”). On the point
in question, Wright and Miller similarly observe that “[t]he
settled rule in federal courts, contrary to that in many
states, is that a party may assert on appeal any question
that has been properly raised in the trial court. Parties are
not required to make a motion for a new trial challenging
the supposed errors as a prerequisite to appeal.” 11
CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2818 (2d ed. 1995). They
further write:
    A renewed motion for judgment as a matter of law
    under Rule 50(b) is not a condition precedent to
    appeal from a final judgment. If there have been
    errors at the trial, duly objected to, dealing with
    matters other than the sufficiency of the evidence,
    they may be raised on appeal from the judgment
    even though there has not been either a renewed
    motion for judgment as a matter of law or a motion
    for a new trial, although it is better practice for the
    parties to give the trial court an opportunity to
    correct its errors in the first instance.
Id. at 9A § 2540. Like the Unitherm Court, Wright and
Miller specifically identify a sufficiency of the evidence
challenge as uniquely requiring a postverdict motion in
order to preserve appellate review. Many litigants, of
course, have followed the “better practice” of filing
postverdict motions in cases where they subsequently
appealed on the basis of evidentiary errors.2 See, e.g.,


2
  Professor Martin Redish, writing in MOORE’S, observes:
“although not a prerequisite to an appeal, it is often advisable to
bring the alleged errors to the trial court’s attention by moving for
a new trial, to avoid the time and expense of an appeal before a
new trial ordered by the appellate court.” 12 J. MOORE ET AL.,
                                                        (continued...)
10                                                 No. 04-2158

Jerden v. Amstutz, 430 F.3d 1231 (9th Cir. 2005) (ordering
a new trial on basis of evidentiary error where appellant
had moved post-verdict for a new trial); Peat, Inc. v.
Vanguard Research, Inc., 378 F.3d 1154 (11th Cir. 2004)
(same); Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000)
(ordering a partial new trial on the basis of error in admit-
ting expert testimony relating to damages, where appellant
moved postverdict for a new trial); Hester v. BIC Corp., 225
F.3d 178 (2d Cir. 2000) (new trial ordered on basis of
evidentiary error where appellant moved postverdict for a
new trial).3 However, these decisions do not indicate that
such filings were necessary.
  In sum, without an explicit declaration from the Supreme
Court, we will not strain to read one of its decisions as
overturning a right of appellate review that is stated in the
Federal Rules of Evidence, manifested in the precedents of
numerous court of appeals decisions, and observed in the
leading treatises. Our prior decision, finding prejudicial
error in the admission of Dr. Pugh’s testimony, went too far
in awarding judgment for Zimmer. There was other evi-
dence in the record supporting Fuesting’s claims even after
Dr. Pugh’s testimony was excluded, and Unitherm makes
clear that we were not permitted to assess the sufficiency of
the remaining evidence in the absence of a postverdict
motion. However, we do not disturb our conclusion that the
admission of Dr. Pugh’s testimony prejudiced Zimmer, and
Zimmer is entitled to relief. The appropriate remedy was to


2
 (...continued)
MOORE’S FEDERAL PRACTICE § 59.55 (3d ed. 2005).
3
   In Weisgram, the defendant filed Rule 50(b) and 59 motions
claiming the evidence was insufficient because of the evidentiary
error. See Weisgram, 528 U.S. at 445. Nothing in Weisgram
suggests that the court of appeals could not have awarded a new
trial had the appellant simply appealed the evidentiary decision.
No. 04-2158                                             11

remand for a new trial, and such relief is granted by this
opinion.


                  III. CONCLUSION
  The petition for panel rehearing is GRANTED. Our instruc-
tions to enter judgment for Zimmer are VACATED and the
case is REMANDED to the district court for proceedings
consistent with this opinion.
A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-22-06
