Products Liability Law Daily Wrap Up, EVIDENTIARY ISSUES—MOTOR VEHICLE EQUIPMENT—10th Cir.: Appellate court declines review in Toyota airbag case after plaintiff waives sufficiency-of-evidence claim, (Jun 4, 2026)

By Molly Platnick

The injured passenger did not move for judgment as a matter of law and the Tenth Circuit would not review for plain error.

The Tenth Circuit U.S. Court of Appeals has affirmed the district court’s final judgment based in a case brought by an injured passenger against Toyota. The court denied appellate review on the passenger’s only claim that the jury had insufficient evidence to find in favor of the car manufacturer. The passenger did not follow FRCP Rule 50, which requires a litigant to move for judgment as a matter of law before appealing his case, effectively waiving his sufficiency-of-the-evidence argument. He contended the need for plain-error review trumped his failure to comply with Rule 50. However, a litany of Tenth Circuit cases following the Supreme Court’s decision in Unitherm Food Systems v. Swift-Eckrich establish appellate review is unavailable to a party who waives his sufficiency-of-the-evidence claim (Nelson v. Toyota, No. 24-1408 (10th Cir. Jun. 1, 2026)).

Background. The plaintiff was injured in October 2018 while riding in a Toyota RAV4 that crashed into a utility pole and rolled over. The driver was going over the speed limit when he suffered a diabetic episode and lost control of the car. He crossed over the centerline into oncoming traffic and ultimately swerved off the road down an embankment. Neither the airbags nor seatbelt pretensioners deployed. Plaintiff sustained a severe brain injury, pulmonary contusions, and multiple lacerations.

The injured passenger brought this suit against Toyota, arguing it was strictly liable for the RAV4’s manufacturing defect. At trial, the jury rendered a verdict for Toyota, finding the vehicle did not have a manufacturing defect that “rendered it unreasonably dangerous” [see Products Liability Law Daily’s Sept. 13, 2023, analysis]. The passenger filed the instant appeal, asking the Tenth Circuit to “overrule” the jury verdict based on a “plain error review” because Toyota gave insufficient evidence. Sufficiency of the evidence was the only issue he presented on appeal. He did not file a motion for judgment as a matter of law under FRCP Rule 50(a), nor a post-verdict motion under Rule 50(b) or Rule 59.

FRCP 50. Under Rule 50, a party challenging the sufficiency of the evidence presented at trial must (a) before the case is submitted to the jury, petition the court that no reasonable jury could “have a legally sufficient evidentiary basis” to find for the opposing party; and (b) renew its motion if the court enters judgment in favor the adverse party. Following the Supreme Court’s decision in Unitherm Food Systems v. Swift-Eckrich, an appellate court cannot review a renewed motion for judgment as a matter of law if the party does not follow this “two-step procedure.”

In Unitherm, the Court held a post-verdict motion is a “necessary precursor to seeking appellate review” because only “the judge who saw and heard witnesses has the feel of the case which no appellate printed transcript can impart.” The court in this case extrapolated from the Unitherm holding that “an appellant’s failure to comply with Rule 50(b) forecloses its ability to challenge the sufficiency of evidence on appeal.” The Tenth Circuit has consistently adhered to Unitherm’s “rigid Rule 50 requirement,” which the Supreme Court has “reiterated,” most recently in Dupree v. Younger (2023).

District court’s judgment affirmed. Toyota alleged the appellate court was barred from reviewing the sufficiency of the evidence because the passenger did not move for judgment as a matter of law. The court agreed. The car company did not cite Unitherm specifically, but the court was satisfied that it “alluded” to Rule 50. Applying the rigid reading of that rule described above, the court agreed the passenger waived his right to raise a sufficiency-of-the evidence challenge.

As described above, Rule 50 directs litigants to challenge the sufficiency of the evidence (a) before the case goes to the jury; and (b) if the court does not grant the original motion, after the jury verdict. Here, the passenger did not move for judgment as a matter of law at the close of evidence, nor renew his sufficiency argument after the jury found for Toyota. As a result, the court deemed his challenge “doubly doomed” and precluded from appellate review.

Plain error standard is unavailable. The passenger argued even if his sufficiency-of-the-evidence challenge was barred by Rule 50, the court could review it under the plain-error standard. However, Unitherm and its progeny hold plain-error review is not applicable where a party has not followed Rule 50’s two-step process. Tenth Circuit case law forecloses any possibility of appellate review by calling failure to satisfy Rule 50(b) a “waiver.” The court here noted, “Our cases ordinarily specify that no review is possible at all, which is the consequence of waiver.” The court highlights a line of cases starting with Kelley v. City of Albuquerque in 2008 through Home Loan Investment v. St. Paul Mercury Insurance in 2016. Taken together, these cases show a “congruency” in the court’s refusal to allow plain-standard review for a party who did not file a Rule 50(b) motion. In this court’s words precedent “forcefully demonstrate[s] that appellate review is unavailable for unpreserved sufficiency challenges post-Unitherm—full-stop.” Sufficiency the evidence, the passanger’s only challenge, could not be saved by a plain-error review once he did not move for judgment as a matter of law at the district court level.

The case is No. 24-1408.

Judge: Holmes, J.

Attorneys: Michael O'Brien Keating (Keating Wagner Polidori Free PC) for Wesley Nelson. Katherine E. Freeman (Nelson Mullins Riley & Scarborough LLP) for Toyota Motor Corp.

Companies: Toyota Motor Corp.

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