Lopez v. Costco: Treating Physicians & Rule 26 Reports—Retroactive Force of Cedant and the Revived Duty to Issue Conditional New-Trial Rulings under Rule 50(c)(1)

1. Introduction

Tania Maria Lopez, a shopper who slipped on mashed grapes in a Florida Costco, obtained a $155,000 jury verdict for negligence-based personal-injury claims. The verdict was set aside when the district court entered judgment as a matter of law (JMOL) in favour of Costco, reasoning that Lopez’s sole causation witness—her treating neurosurgeon, Dr. Santiago Figuereo—had not filed a written expert report compliant with Federal Rule of Civil Procedure 26(a)(2)(B). While Lopez’s appeal was pending, the Eleventh Circuit decided Cedant v. United States, 75 F.4th 1314 (11th Cir. 2023), which squarely held that treating physicians are not required to submit Rule 26(a)(2)(B) reports.

The present appeal required the Court of Appeals to decide (a) whether Cedant applies retroactively and therefore renders Dr. Figuereo’s causation testimony admissible, and (b) what the proper appellate disposition should be when the trial court, having granted JMOL, failed to make the conditional new-trial determination mandated by Rule 50(c)(1). The panel (Judges Jill Pryor, Branch, and Grant, per curiam) reversed and remanded, thereby reinforcing two significant procedural-evidence principles:

1. The retroactive application of Cedant: treating physicians need not provide Rule 26(a)(2)(B) reports; Rule 26(a)(2)(C) “summary” disclosures suffice.
2. The mandatory nature of Rule 50(c)(1): when granting JMOL, a district court must conditionally rule on any pending motion for new trial (or remittitur) so that the appellate court and parties are not left in procedural limbo if JMOL is later overturned.

2. Summary of the Judgment

• Expert-Report Ruling: The district court erred as a matter of law in forcing Dr. Figuereo into the Rule 26(a)(2)(B) category. Under Cedant, treating physicians testifying to opinions formed during treatment are governed only by Rule 26(a)(2)(C).
• JMOL Reversed: Because exclusion of the causation testimony rested entirely on an incorrect legal standard, the JMOL in Costco’s favour could not stand.
• Remand for New-Trial Motion: Consistent with Rule 50(c)(1), the Eleventh Circuit refused to reinstate the original verdict outright. Instead, it remanded for the district court to decide Costco’s still-live alternative motion for new trial or remittitur—issues it had improperly labelled “moot.”

3. Analysis

3.1 Precedents Cited & Their Influence

1. Cedant v. United States, 75 F.4th 1314 (11th Cir. 2023)
   • Holding: Treating physicians are not “retained or specially employed” experts; they therefore need not submit full expert reports.
   • Influence: Provided the controlling rule applied retroactively here. The Lopez panel relied on Cedant’s textual approach (“when and why an expert came to the case” matters) to deem the exclusion of Dr. Figuereo’s testimony improper.
2. Weisgram v. Marley Co., 528 U.S. 440 (2000)
   • Role: Recognised appellate authority to excise inadmissible evidence when reviewing JMOL. Lopez cited Weisgram to explain why, even had the testimony been stricken below, the appellate court could assess admissibility afresh.
3. McGinnis v. American Home Mortgage Servicing, Inc., 817 F.3d 1241 (11th Cir. 2016) & Chaney v. City of Orlando, 483 F.3d 1221 (11th Cir. 2007)
   • Rule 50(c)(1) Guidance: Both cases required remand where the district court omitted the conditional ruling. Lopez extends that approach.
4. Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166 (11th Cir. 2023) & Florida slip-and-fall cases (De Cruz-Haymer, Moultrie)
   • Substantive Tort Issues: Cited to reject Costco’s alternative JMOL arguments on constructive notice and open-and-obvious doctrine.

3.2 Court’s Legal Reasoning

1. Step 1 – Identify governing Rule: Rule 26 divides experts into (B) “report” witnesses and (C) “summary” witnesses. Treating physicians, unless specially retained to testify, fall in (C).
2. Step 2 – Apply Cedant retroactively:
   • Judicial decisions presumptively apply to pending cases (Foster). No equitable or reliance considerations defeated retroactivity because there was no “clear past precedent” establishing the contrary rule.
3. Step 3 – Evaluate JMOL standard: JMOL is proper only when no reasonable jury could find for the non-movant. Once Dr. Figuereo’s testimony is admitted, Lopez produced ample causation evidence; thus JMOL collapses.
4. Step 4 – Enforce Rule 50(c)(1):
   • District courts must “conditionally” decide any new-trial motion when granting JMOL, preserving appellate efficiency and trial-court primacy.
   • The trial court’s blanket “moot” ruling violated this duty; hence remand is required to decide Costco’s outstanding new-trial/remittitur arguments (e.g., alleged juror misconduct, improper closing, evidentiary weight).

3.3 Anticipated Impact

The judgment cements two practical directives for district judges and litigators within the Eleventh Circuit (and likely persuasive elsewhere):

• Expert-Disclosure Practice: Parties may freely elicit causation and prognosis opinions from treating physicians without full Rule 26(a)(2)(B) reports—provided the opinions were formed during the course of treatment. Litigants should still supply the concise Rule 26(a)(2)(C) summary.
• Trial-Motion Protocol: Courts must never dispose of a Rule 50 new-trial request as “moot” when granting JMOL. Failure to enter a conditional ruling risks automatic remand, thereby prolonging litigation.
• Appellate Strategy: Litigants must preserve new-trial arguments both in the trial court and on appeal to avoid waiver (Edwards). Costco succeeded on this score, securing a remand.
• Tort Litigation Dynamics: Plaintiffs in slip-and-fall or other personal-injury actions can rely more confidently on treating doctors for causation proof, decreasing litigation costs and levelling the evidentiary playing field.

4. Complex Concepts Simplified

Rule 26(a)(2)(B) vs. (C)

(B) applies to experts specially hired to testify; requires a comprehensive written report.
(C) applies to “non-retained” experts—often treating physicians—requiring only a brief summary of expected testimony.

Judgment as a Matter of Law (JMOL)

A post-trial (or mid-trial) motion arguing that no reasonable jury could legally find for the opponent given the evidence.

Rule 50(c)(1) Conditional New-Trial Ruling

When JMOL is granted, the judge must simultaneously decide—conditionally—whether a new trial would be ordered if the JMOL is later reversed, thus conserving judicial resources.

Daubert Challenge

Motion contesting the reliability and relevance of expert testimony under Daubert v. Merrell Dow. Absent a timely Daubert motion, objections to reliability are usually waived.

Remittitur

Judicial reduction of a jury’s damages award deemed excessive, offered in lieu of a new trial.

5. Conclusion

Lopez v. Costco is more than a routine slip-and-fall appeal. It crystallises the Eleventh Circuit’s post-Cedant position that treating physicians’ testimony cannot be excluded for want of a Rule 26 expert report and underscores the imperative that district courts comply meticulously with Rule 50(c)(1)’s conditional-ruling mandate. Going forward, litigants should adjust expert-disclosure strategies accordingly, and trial judges should ensure that any JMOL determination is paired with an explicit, reasoned new-trial ruling. The decision thus promotes both substantive fairness in evidentiary rulings and procedural regularity in post-verdict motion practice.