               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                         ____________________

                             No. 97-41397
                           Summary Calendar
                         ____________________


THE PILLSBURY COMPANY,

                            Plaintiff-Appellant,

     v.

MARLEN RESEARCH CORPORATION,

                            Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (4:96-CV-199)
_________________________________________________________________

                            October 7, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Following a jury trial, the district court entered a

judgment against plaintiff-appellant The Pillsbury Company

absolving defendant-appellee Marlen Research Corporation of

liability following a machine breakdown and subsequent

contamination of The Pillsbury Company’s cookie dough.   The

Pillsbury Company appeals the district court’s denial of its

motion for a new trial.    We affirm.

     *
      Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
                 I.   FACTUAL & PROCEDURAL BACKGROUND

     In early 1994, The Pillsbury Company (Pillsbury) bought a

food pump from Marlen Research Corporation (Marlen) for use in

producing slice and bake cookie dough in Pillsbury’s Denison,

Texas plant.    Marlen trained Pillsbury employees on the proper

use and care of the machine.    The Denison food pump included, as

standard equipment, a funnel made of Delrin plastic that

connected a large hopper filled with mixed dough to a pump

attached to tubing, which wrapped the dough for retail sale.

     In April 1994, shortly after the food pump went into

operation, Pillsbury had a problem with chocolate chips bunching

up inside the funnel.    Sporadically, this problem resulted in

some dough packages consisting entirely of chocolate chips, as

the pump released the bunched chocolate chips all at once into

the tubing.    After Pillsbury reported this problem to Marlen,

Marlen recommended that Pillsbury replace the Delrin plastic

funnel with a funnel made of Lexan plastic.    This recommendation

was based on Marlen’s experience with a similar bunching problem

at a General Mills plant in the 1980s, which was solved through

use of a Lexan funnel.    Marlen ordered the Lexan funnel for the

Denison food pump.

     In May 1994, a Pillsbury employee inadvertently put a wrench

into the Denison food pump along with a batch of dough, jamming

the pump, breaking some pump components, and scraping the pump

itself.   Coincidentally, Marlen employees were present at the


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Denison plant at the time, and they disassembled the pump and

ordered replacement parts.   After installing these parts, a

Marlen employee noted on a service report that the pump was now

operating “satisfactorily,” but also wrote that the pump had been

bent, which “must be corrected ASAP.”   The next day, another

Marlen employee verified that the pump was operating

“satisfactorily,” and Pillsbury returned the pump to normal

operations.

     In June 1994, Pillsbury received and installed the Lexan

plastic funnel, replacing the Delrin funnel.   Pillsbury then

conducted a series of test runs with the new funnel and

determined that the Lexan funnel alleviated the chocolate chip

bunching problem.   After these tests, the pump resumed normal

production.   Pillsbury employees performed ordinary maintenance

on the pump on June 20 and 27, noting nothing unusual in its

condition.

     On July 4, 1994, a Pillsbury maintenance worker noticed that

two pieces of Lexan were missing from the funnel.   Normal

production continued until July 6, when a Marlen employee, at the

plant for an unrelated matter, learned of the missing Lexan and

disassembled the pump.   This time, three pieces of Lexan were

missing.   The missing pieces corresponded to the areas of the

funnel attached to the pump parts damaged in the wrench accident.

Following this discovery, Pillsbury halted production and sold as

scrap all dough possibly contaminated with the Lexan pieces.

     Pillsbury filed suit against Marlen in the 59th Judicial


                                 3
District of Grayson County, Texas, alleging negligence and breach

of an implied warranty to perform repairs in a good and

workmanlike manner.    Marlen removed the case to the United States

District Court for the Eastern District of Texas, Sherman

Division.    After a three-day trial, the jury deliberated for

eleven minutes and returned a verdict for Marlen.         The district

court denied Pillsbury’s motions for a new trial and

reconsideration.

                       II.    STANDARD OF REVIEW

     The grant or denial of a motion for a new trial will not be

reversed absent abuse of discretion.         Calcasieu Marine Nat’l Bank

v. Grant, 943 F.2d 1453, 1464 (5th Cir. 1991).         A district

court’s denial of a new trial motion is reviewed more

deferentially than a district court’s decision to grant such a

motion.    Brady v. Fort Bend County, 145 F.3d 691, 713 (5th Cir.

1998).    As the trial judge has the opportunity to observe the

witnesses in a live trial, the district court abuses its

discretion in denying a motion for new trial on evidentiary

grounds only if “there is an absolute absence of evidence to

support the jury’s verdict.”        Roberts v. Wal-mart Stores, Inc., 7

F.3d 1256, 1259 (5th Cir. 1993).         This deference “‘operates in

harmony with deference to the jury’s determination of the weight

of the evidence and the constitutional allocation to the jury of

questions of fact.’”    Brady, 145 F.3d at 713 (quoting Shows v.

Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)).

                             III.   DISCUSSION


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     Pillsbury raises two issues on appeal--(1) insufficient

evidence supported the jury’s verdict that Marlen did not breach

its implied warranty to make good and workmanlike repairs and (2)

the jury was motivated by passion or prejudice.   We discuss each

of these issues in turn.

     Pillsbury contends that the district court’s refusal to

grant a new trial on the implied warranty claim was an abuse of

discretion.   We disagree.   Before the jury began deliberations,

the district court instructed as follows:

     When parties contract to repair or modify existing
     tangible goods, the law deems a warranty or
     representation to be made by the repairer that all
     repairs or modifications to existing tangible goods are
     made in a good and workmanlike manner. A good and
     workmanlike manner is that quality of work performed by
     one who has the knowledge, training or experience
     necessary for the successful practice of a trade or
     occupation and performed in a manner generally
     considered proficient by those capable of judging such
     work. This warranty does not require the repairer to
     guarantee the results of their work; the warranty only
     requires those who repair or modify existing tangible
     goods to perform those services in a good and
     workmanlike manner.

     Pillsbury argues that no evidence supports the jury’s

conclusion that Marlen repaired the food pump funnel with the

same level of proficiency as a repairer with Lexan expertise.

Pillsbury insists that while it offered evidence at trial showing

Marlen’s complete lack of experience with Lexan, Marlen failed to

offer any evidence suggesting that it had such Lexan expertise.

Therefore, Pillsbury concludes, there is an absence of any

evidence supporting the jury verdict.   However, this

characterization of the record ignores evidence on which the jury


                                  5
could legitimately have relied in concluding that Marlen

fulfilled its duty to Pillsbury.

     First, Marlen introduced evidence that the only other time

it had ever encountered a chocolate chip bunching problem with a

food pump, it successfully solved the problem by switching the

Delrin funnel with a Lexan funnel.     This experience with the

General Mills food pump and the success of the Lexan funnel in

remedying a situation similar to Pillsbury’s gave Marlen some

measure of experience using Lexan funnels in food pumps.     The

jury could rationally have relied on this evidence to conclude

that Marlen had acted in a good and workmanlike manner--that

Marlen had the requisite Lexan expertise necessary to recommend

Lexan for the Denison food pump.

     Second, even Pillsbury admits that the Lexan funnel did, in

fact, alleviate the chocolate chip bunching condition.     The

simple fact that Marlen recommended a successful remedy, the

Lexan funnel, for the very problem with which Pillsbury

approached Marlen with, implies that Marlen possessed a level of

expertise both in repairing its food pumps and in using Lexan

funnels.

     Third, Pillsbury chose not to repair the wrench-damaged

pump.   The jury could have concluded that the dented pump caused

the Lexan filter corrosion; there is no evidence that but for the

wrench accident, the filter would nonetheless have disintegrated.

Marlen informed Pillsbury that the pump had been damaged by

indicating on its service form that the pump needed to be


                                   6
repaired “ASAP.”    In addition, Pillsbury employees performing

maintenance after the Lexan funnel was installed and the pump was

damaged did not note any wear on the funnel.     Here, a

knowledgeable customer, trained by the manufacturer, chose not to

repair its own machine.    In Sears, Roebuck & Co. v. Nichols, 819

S.W.2d 900 (Tex. App.--Houston [14th Dist.] 1991, writ denied), a

Texas court of appeals held the implied warranty was fulfilled in

circumstances similar to these.    In that case, an informed

customer insisted that only some recommended repairs be made to a

lawnmower, and the absence of one of the repairs led to a

breakdown of the mower.    Id. at 902.   The Texas court of appeals

held that the implied warranty protects customers from inferior

services but does not allow customers to escape the consequences

of their own decisions.    Id. at 905.   The jury in this case was

similarly entitled to find that Pillsbury knew the pump had to be

repaired, chose not to do so, and must take responsibility for

its own decision.

     These examples are not necessarily exhaustive, but they need

not be.   They are all rational bases upon which the jury could

have decided that Marlen’s decision to recommend a Lexan funnel

met the level of proficiency necessary under the implied warranty

theory.   The jury could have found that Marlen’s decision

comported with the decision one with knowledge, training, or

experience with Lexan would make.     Because the record is not

devoid of any evidence suggesting Marlen met this burden, we will

not disturb the district court’s judgment and denial of


                                  7
Pillsbury’s new trial motion.

     Pillsbury also argues on appeal that the district court

should have granted a new trial because the short jury

deliberations evidenced passion or prejudice.      Though it is true

that if the jury verdict resulted from passion or prejudice, a

new trial is the proper remedy, Wells v. Dallas Indep. Sch.

Dist., 793 F.2d 679, 683 (5th Cir. 1986), such evidence of

improper motivation is lacking here.

     Pillsbury bases its contention that the duration of the jury

deliberations provides a basis for reversal on Kearns v. Keystone

Shipping Co., 863 F.2d 177, 182 (1st Cir. 1988), in which the

First Circuit held that, even though the absolute time of

deliberations is irrelevant, when short deliberations are coupled

with insufficient evidence, the district court should set aside

the verdict.   This is an unspectacular proposition and one that

could be reached without examining the length of deliberations.

As discussed above, in this case the evidence is sufficient and

therefore Kearns does not apply.       As the First Circuit later

articulated, if the evidence is sufficient to support the

verdict, the “complaint [that short jury deliberations evidence a

verdict infected by passion or prejudice] is easily defeated.”

Ahern v. Scholz, 85 F.3d 774, 785 (1st Cir. 1996).

     This circuit’s case law makes clear that the actual time of

deliberations is irrelevant to the legitimacy of the judgment.

In affirming a verdict based on a jury’s fourteen-minute

deliberations, this court stated, “We cannot hold an hour-glass


                                   8
over a jury.   If the evidence is sufficient to support the

verdict, the length of time the jury deliberates is immaterial.”

Marx v. Hartford Accident & Indem. Co., 321 F.2d 70, 71 (5th Cir.

1963).   More recently, we affirmed a district court’s refusal to

grant a new trial after a jury deliberated only ten minutes.

Guaranty Serv. Corp. v. American Employers’ Ins. Co., 893 F.2d

725, 729 (5th Cir. 1990)(“The evidence in this case supports the

verdict of the jury; therefore, it is of no importance that the

jury’s determination was made in only ten minutes.”), modified on

other grounds, 898 F.2d 453 (5th Cir. 1990).   Pillsbury’s

suggestion that the jury in this case quickly considered

negligence defenses in deciding the implied warranty claim is

irrelevant to the legitimacy of the verdict.   As the record

supports the jury’s verdict, Pillsbury’s argument that the trial

court abused its discretion by not ordering a new trial on the

basis of the jury’s short deliberations lacks merit.

                          IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

denial of Pillsbury’s new trial motion.




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