All Freight Systems vs. James, (5th Cir. 2004)

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United States Court of Appeals Fifth Circuit FILED August 4, 2004 Charles R. Fulbruge III Clerk In the United States Court of Appeals for the Fifth Circuit m 03-40776 Summary Calendar A LL F REIGHT S YSTEMS , Plaintiff, K EN P OWERS , Intervenor Plaintiff-Appellant, VERSUS C ASSANDRA J AMES , ET A L ., Defendants, C HARLES J OHNSON ; W ILLAMETTE I NDUSTRIES , I NC ., DefendantsIntervenor DefendantsAppellees. Appeal from the United States District Court for the Eastern District of Texas m 4:00-CV-437 Before S MITH , D E M OSS , and S TEWART , Circuit Judges.

J ERRY E. S MITH , Circuit Judge. * All Freight Systems, which was Ken Powers’s employer, sued Cassandra James, Charles Johnson, and Willamette Industries (“Willamette”); Powers intervened as plaint iff. The suit resulted from a car accident in which James hit a pool of standing water while driving under drizzly and foggy conditions. James’s van hydroplaned, slid into the median, and rolled over several times, eventually resting on its side in the middle of northbound traffic. James was assisted out of her car, which was left w it h its black undercarriage facing south. Troy Johnston, a witness, testified that there was a hill preceding the place where the van had settl e d. Because of this, Johnston ran t o the south to attem pt to prevent oncoming traffic from running into the van. The area were the van lay was da rk, so approaching drivers could not see it. Johnson, a dr iver for Willamette, approached the obstructi on caused by the van and was unable to avoid impact. Freddy Walden, another witness, testified that from his vantage point he saw nothing that Johnson could have done to avoid the wreck. After the collision, Johnson’s truck went across the median and came to rest blocking southbound traffic. Immediately, Powers collided with Johnson’s trailer, injuring Powers.

At the jury trial, J o hnsonÂ’s vision was brought into question by the plaintiffs. Records from JohnsonÂ’s DOT examinations from 1980 through 1998 showed that his vision was 20/20 throughout this period. Furthermore, six weeks after the accident, he received another DOT physical examination that did not show a need for corrective lenses. Dr. Karanges, who performed a court-ordered independent DOT physical examination on Johnson, found that Johnson had 20/30 vision in his left eye and 20/40 visio n in his right eye. K aranges also testified that Johnson had an overall visual acuity of 20/25 using both eyes, although this is not determinative of JohnsonÂ’s abilit y to satisfy DOT requirement for commercial drivers.

Plaint iffs requested, but did n ot recei ve, a ne g ligence per se jury instruction regarding Johnson’s alleged failure t o meet vision standards for commercial drivers. Plaint iffs did not o bject to the refusal to instruct, nor did they move for judgme nt as a matter of law (“j.m.l.”) at the close of the evidence or before submission of the case to the jury.

Plaintiffs state that the district court failed in its gate-keeping function by allowing Karanges to testify concerning Johns o nÂ’s vision.

Plaint iffs also contend that the failure to give the negligence per se instruction is plain error.

Next, plaint iffs allege that trial counsel was ill, and this was the reason for the failure to object to the lack of an instruction. Furthermore, plaint iffs believe that attorney misconduct prejudiced the proceedings, so they are entitled to a new trial. Finding no error, we affirm.

I. Evidentiary questions are rev iewed for abuse of discretion. G raef v. Chem. Leaman Corp. , 106 F.3d 112, 116 (5th Cir. 1997). * Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. Ev en if a court improperly admits evidence, the judgment must be affirmed unless the ruling affects substantial rights of the complaining party. B ocanegra v. Vicmar Servs., Inc. , 320 F.3d 581, 584 (5th Cir.), cert. denied , 124 S. Ct. 180 (2003). Consequ ently, plaintiffsÂ’ argument that Karanges was improperly all owed to provi de testimony regarding JohnsonÂ’s vision is witho ut merit. The district court was in a bet t er position to decide the admissibilit y of testimony concerning JohnsonÂ’s abilit y to meet the r equirements of a commercial driver. Moreover, the ruling did not substant ially affect plaintiffsÂ’ rights.

II. Plaint iffs allege that it was plain error not to include a negligence per se instruction in the jury charge. There are three requirements to challenge jury instructions. First, the appellant must show that viewed as a whole, the charge creates “substantial and i n eradicable doubt whether the jury has been properly guid ed in its deliberation s.” T aita Chem. Co. v. Westlake Styrene, LP , 351 F.3d 663, 667 (5th Cir. 2003). Second, even if there is error, we will not reverse if the error “could not have affected the outcom e of the case.” I d. Third, the appellant must show that the proffered instruction correctly stated the law. I d. Perfection is not required if the instructions given were generally correct and any err or was harmless. Id. This standard provides t he district court with great latitude. I d. In reviewing instructions, we consider whether the jury was misled in any way and whether it un derstood the issues. D ixon v. Int’l Harvester Co. , 754 F.2d 573, 588 (5th Cir. 1985). Error in the charge is reversible only if, in the light of the entire record, it was reasonably calculated to and probably did cause the rendition of an improper verdic t. R einhart v. Young , 906 S.W.2d 471, 473 (Tex. 1995). Negligence per se is a concept whereby a legislatively imposed stand ard of conduct is adopted by the civil courts as defining the conduct of a reasonable and prudent person.

Ca rter v. William Sommerville & Son, Inc. , 584 S.W.2d 274, 278 (Tex. 1979). For negligence p er se , there must be (1) a violation of a legislative enactment, (2) that is unexcused.

Parrott v. Garcia , 436 S .

W.2d, 897 (Tex. 1969). Negligence p er se provides only a way of proving duty and breach of duty, and causation and damages must still be established. I d. Thus, the plaint iff must still prove proximate causation, El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987), which includes the elements of cause in fact and foreseeability, Exxon v. Quinn , 726 S.W.2d 17, 21 (Tex. 1987). To be a cause-in-fact of the accident, a potential tortfeasorÂ’s acts or omissions must have been substantial factors in causing the accident. N . Am. Van Lines, Inc. v. Emmons , 50 S.W.3d 103, 114 (Tex. App. SS Beaumont 2001, pet. denied). Specifically, the acts or omissions must be factors without which the accident would not have occ urred. I d. The resolution of conflicting evidence as to proximate cause and negligence is a matter for the jury. M eadows & Walker Drilling Co. v. Phillips , 417 F.2d 378, 383 (5th Cir. 1969).

T he substantive law of Texas defines a n unavoida b le accident as “an event not proximately caused by the ne gligence of any party to it.” R einhart, 906 S.W.2d at 472. Similarly, the purpose of the sudden emergency doctrine instruction is to ensure that the j ury will understand that it does “not n e cessarily have to find that one of the other parties to the suit was to blame for the occurrence complained of.” Y arborough v. Berner , 467 S.W.2d 188, 192 (Tex. 1971).

The instruction is most often used to inquire about the causal effect of some physical connection or circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of view. R einhart , 906 S.W.2d at 472. Regarding the sudden emergency defense, “by the term emergency as used in t his charge, is meant a condition arising suddenly and unexpectedly and not proximately caused by any neg ligent act or omission of the person in question and which calls for immediate action on his part and without time for deliberation.” Goolsbee v .

Tex. & New Orleans R.R. , 243 S.W.2d 386, 388 (Tex. 1951).

The mere fact that the legislature adopts a criminal statute does not mean that this court must accept it as a standard for civil liabilit y. Carter v. William Sommerville & Son, Inc. , 584 S.W.2d 574, 278 (Tex. 19 79). The threshold questions in every negligence per se case are whether the plaintiff belongs to the class that the statute was inten ded to protect and whether his injury is of a type that the statute was designed to prevent. P erry v. S.N. , 973 S.W.2d 301, 305 (Tex. 1998). Then, the court must determine whether it is appropriate to impose tort liabilit y for violation of the statute. I d. An indirect relationship between violation of a s t atute and the plaintiffÂ’s ultimate injury is a factor against imposing tort liabilit y. Id. at 309.

In light of the conflicting testi m ony, the failure to include a negligence pe r se instruction did not ultimately affect the ou tcom e of the case. The jury was not misled in any way, so its understand ing of the issues was not impaired. The circumstances of the accident illustrate that the road conditions, cou pled with the position of JamesÂ’s van following her init ial accident with the median, rendered a situat ion that falls into the category of an unavoidable accident or sudden emergency. This situation demonstrates that Jo hnsonÂ’s allegedly impaired vision was not a substantial factor in the occurrences that caused Powers eventually to hit JohnsonÂ’s tractor-trailer.

The matter of JohnsonÂ’s vi sion was properly decided by the jury in light of the conflicting evidence presented by each side. Specifical ly, defendants presented evidence that the causal effect of drizzle and fog, combined with the sudden emergency of JamesÂ’s obstructing van, led to the accid ent , while the plaintiffÂ’s argued t hat JohnsonÂ’s vision was the cause.

Acco r dingly, the jury was properly left to determine the issue.

III. Plaint iffs contend they should not have to suffer for their counsel’s error in failing to object to the jury instruction. Where a party fails to make t imely objections to the proposed instructions and questions, the plain error standard of review applies. J .C. Motor Lines, Inc. v. Trailw ays Bus Sys., Inc., 689 F.2d 599, 602 (5th Cir. 1982); Fredonia Broadcasting Corp. v. RCA Corp., 481 S.W.2d 781, 796 (5th Cir. 1973); F ED . R. C IV . P. 51. One may not complain of a jury instruction “unless that party objects thereto, stating distinctly the matter objected to and the grounds of the objection.” T aita Chem. Co. , 351 F.3d at 667. Furthermore, submission of an alternative instruc ti on does not necessarily preserve error for appeal. I d. One may not sit by without objection to ruli ngs o r instructions, and then after verdict and judgment, and when it is too late for the court to change its rulings or charge, come forwa rd with objections on appeal. M eadows & Walker Drilling Co. v. Phillips Petroleum Co. , 417 F.2d 378, 381 (5th Cir. 1969).

Even if the challenger proves the i nstructions misguided the jury, we reverse only if the erroneous instruction affected the outcom e of the case. Thomas v. Tex.

DepÂ’t of Crim.

Justice , 297 F.3d 361, 365 (5th C ir. 2002).

To meet this standard, a party must show “(1) that an error occurre d; (2) that the error was plain, which means clear or obvious; (3) the plain error must affect substantial rights; and (4 ) not correcting the error would ‘seriously affect the fairness, integrity, o r public reputati on of ju dicial proceedings.” T aita Chem. Co., 351 F.3d at 668. Litigants are held to a difficult standard of error preservation for good reason. I d. It requires that objections be made for a possible remedy at the trial court level, saving judicial resources. Id. Reversal based on plain error is “not a run of the mill remedy.” H ighlands Ins. Co. v. Nat’l Union Fire Ins. Co. , 27 F.3d 1027, 1032 (5th Cir. 1994). On plain error review, “the question before this Court is there was any evidence to support the jury verdict.” United States ex re l. Wallace v. Flintco, Inc. , 143 F.3d 955, 963 (5th Cir. 1998). If any evidence supports the verdict, the verdict will be upheld.

Id. Therefore, so long as the court gives counsel a fa ir o pportunity to object, we will listen to un-objected to rulings only in those handful of cases that can meet the exacting requirements of plain error. Highlands Ins. Co. , 27 F.3d at 1032.

Plaint iffsÂ’ argument that trial counsel was ill and that Powers should not be forced to pay for counselÂ’s failure to object instructi on is unavailing. Therefore, we review for plain error the refusal to include a negligence per se instruction. As noted above, the lack of a jury instruction regarding negligence per se did not result in a miscarriage of justice. A negligen ce p er se jury instruction still would have left the jury to determine whether JohnsonÂ’s controversial vision or t he emergency situation in which he was presented on the morning of t he accident was the cause of the collision. Accordingly, because plaintiffsÂ’ co unsel was given fair opportunity to object and on plain er ro r review there was evidence to sup po rt the verdict, there is no reversible error.

IV. Plaint iffs admonish that, unde r t he plain error standard, t h ey are entitled to a postverdict j.m.l. A claimant who bears the burden of proof and believes he is entitled to j.m.l. is required to move f o r j.m.l. before the case is submitted to the jury. F lintco , 143 F.3d at 968; F ED . R. C IV . P. 50(a). Failing to move for j. m.l. at the close of the evidence and before submission to the jury results in waiver of the right to renew the motion under rule 50 (b). I d. ; 9A C HARLES A. W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 2536 (2d ed. 1995). If a party fails to move for j.m.l. under rule 50(a) on an issue at the conclusion of all the evidence, that party waives its right t o file a renewed postverdict rule 50(b) motion and its right to challenge the sufficiency of the evidence on that issue on appeal . F lowers v. Regional Physician Sys. , 247 F.3d 229, 238 (5th Cir. 2001).

A lawyer who never moves for j.m.l. must realize that a subsequent motion for j.m.l. can b e granted only if plain error can be e stab- lished. F lintco , 143 F.3d at 963. The purpose of rule 50(a)’s requirement tha t a motion for j.m.l. specify the law and the facts on which the moving par t y relies “is to assure the responding party an opportuni ty to cure any deficiency in that party’s proof that may have been overlooked until called to the party ’s attention by a late motion for judgment. I d. Therefore, we will reverse only if the judgment complained of results in a manifest miscarriage of justice. Id. Consequentl y , because plaint iffs failed to move for j.m.l. at t he close of the evidence, our review of the den ial of their subsequent motion for post-verdict j.m.l. is limit ed to plain error. Counsel’s failure to seek j.m.l. limit ed defense coun sel’s opportunity to become aware of any possible shortc o mings in the evidence they had presented. Furthermore, on plain error review ther e was sufficient evidence to support the verdict. Therefore, j.m.l. after the case had been submitted to the jury was properly denied.

V. P laint iffs requested a new trial by urg ing that opposing counsel’s alleged misconduct at trial caused the jury to be influenced by pas - sion and prejudice. Courts possess the inherent power “to vacate their own judgments on proof that a fraud has been perpetrated upon the court.” Fierro v. Johnson , 197 F.3d 147, 152 (5th Cir. 1999) (citing Chambers v. Nasco, Inc. , 501 U.S. 32 , 44 (1991)). To establish fraud on the court, it is necessary to show an unconscionable plan or scheme designed to influence th e court improperly in its discretion.

Id. Gene rally speaking, only the most egregious misconduct, such as brib ery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. I d. Less seriou s conduct, such as non-disclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court. I d. at 154 (citing First NatÂ’l Bank v. Lustig , 96 F.3d 1554, 1573 (5th Cir. 1996)).

The trial court is in a superior position to gauge the prejudicial impact of counsel’s conduct. A nheuser-Busch, Inc. v. Natural Beverage Distribs. , 69 F.3d 337, 346 (9th Cir. 1995). A new trial is warranted on the ground of attorney misconduct during the trial where the “flavor of mi sco nduct sufficiently permeates an entire proceeding to provide conviction that the jury was influenced by pa s sion and prejudice in reaching its verdict.” Id. Review of the denial of a new trial is more limit ed than where one is grante d . D P Solutions , Inc. v. Rollins, Inc. , 353 F.3d 421 431 (5th Cir. 2003). Our standard of review in this situation is “more deferential than our review of the denial of a motion for [j.m.l.].” Id. To warrant a new trial, improper com ments by counsel must impair substantial rights and cast doubt on the verdict. B ufford v. Rowan Co. , 994 F.2d 155, 157 (5th Cir. 1993). The conduct must be such as gravely to impair the jury’s calm and dispassionate consideration of the case. D ixon v. I nt’l Harvester Co. , 754 F.2d 573, 586 (5th Cir. 1985).

Plaint iffs rely on Anheuser-Busch and Bufford as illustrative of cases where attorney misconduct resulted in the necessity for a new trial. These cases, however, are distinguishable from the case at bar. In A nheuser-Busch , 69 F.3d at 350, plaintiff repeatedly lied to defendant and the court throughou t discovery, opposition to discovery motions, the trial, and evidentiary hearings concerning the existence of documents. In addition, plaintiffÂ’s counsel repeatedly an d impermissibly elicit ed t est imo ny regarding matters previo usly ruled inadmissible. I d. at 346. This misconduct was found to have sufficiently prejudiced the jury.

Id. Next, in Bufford , 994 F.2d at 157, defense counsel claimed that plaint iffÂ’s counsel, in his opening statement and consistentl y over the course of the proceedings, had sought to prosecute fraudulent claims. In addition, the trial judg e , in the presence of the jury, had threate ned plaintiffÂ’s counsel with jail. I d. This combination led to an unacceptable r isk of a tainted verdict. Id. at 159.

In contrast, in this case, defendantsÂ’ counselÂ’s actions did not rise to the level of egregious conduct necessary to constitute fraud on the court. Specifically, plaintiffs cite testimony in which defendantsÂ’ counsel mentions a police report, recounts the fact that plaint iffsÂ’ experts were being paid, notes that plaintiffs had also brought suit ag ainst James, and states that Powers had become unhappy with the doctors whom his lawye r helped him to find. These a ctions by counsel do not illustrate an unconscionable plan or scheme. DefendantsÂ’ counselÂ’s actions can be seen as zealous advocacy but did not rise to the lev el of impairing the considerati o n o f the case by the jury.

Therefore, a new trial was not warranted.

AFFIRMED.

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