In Summers v. Delta Airlines, 508 F 3rd 923 (9th Cir. 2007) The Court of Appeals reversed a directed verdict for defendant on the ground that the court did not permit the plaintiff to elicit her key lay witnesses’ testimony live, before the jury. The 78 year old decedent traveling alone was a passenger on defendants’ airlines. She had requested wheelchair assistance and upon return on the last leg of her return flight plaintiff claimed that a wheelchair was not available and therefore the decedent by walking in the jet way slipped and fell suffering a head injury which was alleged to have caused her subsequent death.
On the second day of trial, before the testimony of an eyewitness,defendant moved for a directed verdict. The district court asked for an offer of proof from plaintiff’s lawyer as to what this remaining liability witness would say. The lawyer telephoned that witness during the lunch break and relayed the content of that conversation. The court then granted judgment as a matter of law to the defendants. The reviewing court pointed out that Federal Rule of Civil Procedure 50(a) provides that before a motion may be granted a party must be “fully heard on an issue.” The court further said that the advisory committee’s note makes it clear that the Rule authorizes the court to consider a motion for judgment as a matter of law “as soon as a party has completed a presentation on a fact essential to that party’s case.” The Court found that Rule 50(a) precluded the district court from requiring that the testimony be given through an offer of proof instead of allowing the witness to testify before the jury. The court said:
“By requiring an offer of proof, however, the district court’s grant of judgment as a matter of law under Rule 50(a) ran afoul of the requirement that the plaintiff be “fully heard’,because plaintiff had not completed her presentation of relevant and admissible evidence on a dispositive issue.We therefore must reverse and remand for a new trial.”(page 930)