“Raise It or Lose It” – Preservation of Last-Clear-Chance Theories and Broad Trial-Management Discretion under Plyler v. Cox (4th Cir. 2025)

I. Introduction

In Plyler v. Cox, the United States Court of Appeals for the Fourth Circuit confronted a tragic farm-accident negligence case and, in the process, clarified two procedural principles of enduring importance:

Preservation Principle: A party that fails to articulate a specific legal theory (here, the “Helpless” or “Inattentive” plaintiff variants of the last-clear-chance doctrine) in its Rule 50(a) motion cannot revive that theory for the first time on appeal;
Trial-Management Principle: Bifurcation, expert-evidence rulings, and other trial-management choices remain squarely within the district court’s discretion, and limiting instructions generally suffice to curb potential prejudice.

Though arising from a routine tort suit, the opinion synthesises a series of recent Supreme Court and Fourth Circuit decisions on summary-judgment “mootness” after trial, Rule 50 preservation, Daubert gatekeeping, and bifurcation, thereby marking a convenient doctrinal checkpoint for litigators in federal court.

II. Factual & Procedural Background

Robbie G. Plyler, a long-time worker on Cox Brothers Farms in Union County, North Carolina, lost his right leg below the knee after stepping into an unguarded grain-bin sump while the auger was running. The sump had originally been protected by three steel cross-bars; the centre bar—large enough to block a human foot—had been removed to improve grain flow. Plyler and his wife sued the farm partnership and individual family members for negligence, gross negligence, premises liability, loss of consortium and punitive damages.

A jury found both sides negligent but concluded the farm had the last clear chance to avoid the injury, awarding \$2 million (compensatory) plus \$500,000 to Mrs Plyler for consortium, while rejecting gross-negligence and punitive claims. The district court (Judge Frank D. Whitney) denied Cox’s pre-trial summary-judgment motion, in-trial Rule 50(a) motion, post-trial Rule 50(b)/Rule 59 motion, and request for bifurcation. Cox appealed; the Plylers cross-appealed on an OSHA-evidence point (contingent on retrial). The Fourth Circuit (Senior Judge Floyd, joined by Judges Richardson & Heytens) affirmed in full.

III. Summary of the Judgment

Negligence liability upheld under North Carolina’s last-clear-chance doctrine.
Individual partners/employees liable: Argument based on their physical absence from the bin was forfeited.
Summary-judgment denial unreviewable post-trial; sufficiency addressed only via preserved Rule 50 arguments (Dupree v. Younger applied).
No abuse of discretion in refusing bifurcation, admitting expert testimony on OSHA/safety, or denying new-trial motion.
Plylers’ cross-appeal moot because verdict stands.

IV. Detailed Analysis

A. Precedents Cited and Their Influence

Dupree v. Younger, 598 U.S. 729 (2023) – makes interlocutory sufficiency challenges “ancient history” after a full trial; the panel used it to dismiss Cox’s attack on the summary-judgment denial.
Ortiz v. Jordan, 562 U.S. 180 (2011) – same principle, reaffirmed.
Creech v. Town of Cornelius, 910 S.E.2d 675 (N.C. App. 2024); Outlaw v. Johnson, 660 S.E.2d 550 (N.C. App. 2008) – state formulations of last-clear-chance adopted in charge to jury.
Kenan v. Bass, 511 S.E.2d 6 (N.C. App. 1999) & Restatement (2d) Torts §§ 479–80 – relied on by Cox but deemed unpreserved.
Daubert v. Merrell Dow, 509 U.S. 579 (1993); Sardis v. Overhead Door, 10 F.4th 268 (4th Cir. 2021) – framing the expert-admissibility analysis.
McKiver v. Murphy-Brown, 980 F.3d 937 (4th Cir. 2020) – recognised wide discretion in denying bifurcation and handling defendant’s financial evidence.

B. The Court’s Legal Reasoning

Preservation & Forfeiture
- Rule 50(a) requires the movant to “specify” the law and facts entitling it to judgment; Rule 50(b) may only renew those arguments.
- Cox’s new “proximity” and Restatement-based theories first appeared after the verdict—too late. Fourth Circuit applied its own precedents (Zayyad, Price) to deem the arguments waived.
Last Clear Chance
- The North Carolina five-factor test guided the charge; evidence (sump guards removed by management, operational control of power switch, prior knowledge of hazard, employee instructions) supported jury’s verdict.
- Court declined to import Restatement distinctions because not raised below and not mandated by N.C. Supreme Court authority.
Summary Judgment’s Post-Trial Fate
- Dupree/Ortiz foreclose appellate review of sufficiency-based summary-judgment denials.
- After a full trial, the only vehicle is Rule 50(b); panel therefore brushed aside Cox’s renewed summary-judgment grievances.
Bifurcation & Limiting Instructions
- Rule 42(b) discretion; district court weighed convenience, economy, and prejudice, concluding limiting instructions sufficed.
- Financial-condition evidence was admissible because punitive damages were live; jury ultimately awarded none—confirming absence of prejudice.
Expert Testimony under Rule 702
- Qualifications uncontested; court found relevance in explaining grain-bin safety norms.
- Reliability established through decades of experience; direct testing of that precise steel door unnecessary under Rule 703 (experts may rely on experience and analogous data).
- OSHA regulations admitted as evidence of standard of care, not as binding law; repeated limiting instructions protected against misuse.

C. Likely Impact of the Decision

Litigation Strategy: Fourth-Circuit litigants must now ensure granular articulation of sufficiency theories at the Rule 50(a) stage; broad protests will not preserve narrower doctrinal angles on appeal.
Employer Liability in Contributory-Negligence States: Confirms that alteration/removal of safety guards and control over machinery can supply the “last clear chance,” even when plaintiff’s own negligence is undisputed.
Expert-Evidence Practice: Endorses use of OSHA and similar regulations as contextual evidence when accompanied by a proper limiting charge.
Trial Management: Reinforces district courts’ discretion to deny bifurcation in mixed liability-punitive cases, especially where limiting instructions are feasible.

V. Complex Concepts Simplified

Contributory Negligence (N.C.): If the plaintiff’s own negligence contributed to the injury in any degree, recovery is barred—unless an exception such as “last clear chance” applies.
Last Clear Chance: An exception allowing a negligent plaintiff to recover when the defendant had the final practical opportunity to avert harm but failed to do so.
Rule 50(a) & 50(b): Mechanisms for judgment as a matter of law before (a) and after (b) jury verdict; arguments in (b) must renew those made in (a).
Rule 59 – New Trial: Permits retrial for serious procedural or evidentiary errors; reviewed deferentially on appeal.
Rule 42(b) – Bifurcation: Allows separate trials on liability and damages when convenient or to avoid prejudice; matter of discretion.
Daubert / Rule 702: Framework requiring expert testimony to be relevant, reliable, and helpful to the jury, with the judge as “gatekeeper.”

VI. Conclusion

Plyler v. Cox does not blaze new substantive-tort trails, but it delivers an invaluable procedural roadmap:

Preserve sufficiency theories early and precisely—courts will not entertain post-verdict pivots.
Summary-judgment denials grounded in factual sufficiency effectively evaporate after trial.
Limiting instructions remain powerful curatives, supporting deference to trial judges on bifurcation and evidentiary calls.
OSHA and analogous regulations are admissible to illuminate industry standards, provided juries are told they do not themselves establish negligence per se.

Collectively, the opinion strengthens the predictability of procedural outcomes in federal diversity cases and serves as a cautionary tale for litigants seeking to sandbag novel theories for appellate use. In the Fourth Circuit, the message is now crystalline: “Raise it—clearly, specifically, and on time—or lose it.”