                       UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT


                                          No. 98-51187




MICHAEL WILLIAMS,
                                                                      Plaintiff-Appellant,

                                               versus

BEXAR COUNTY, TEXAS and
RICARDO PONCE,
                                                                      Defendants-Appellees.




                        Appeal from the United States District Court
                            for the Western District of Texas
                                     SA-96-CV-1132

                                          July 14, 2000

Before POLITZ, GIBSON,* and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:**

        A jury returned a take nothing verdict in favor of Bexar County and Ricardo



   *
    The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit Court
of Appeals, sitting by designation.
   **
      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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Ponce on Michael Williams’ claims under 42 U.S.C. § 1983 and Texas law. From the

Magistrate Judge’s denial of his motion for a new trial, Williams appeals.

                                     BACKGROUND

       Williams alleged that he suffered a violent sexual attack by fellow prisoner Cecil

McClintock while incarcerated in the Bexar County Jail. He invoked 42 U.S.C. § 1983

and sued Bexar County and Ricardo Ponce, a prison official, alleging that his eighth

amendment rights had been violated as a result of the policies, acts, and omissions of

the defendants. He also alleged negligence under Texas law.

       The case was tried to a jury. Prior to and during trial an issue was posed

regarding the scope of cross-examination of McClintock. Magistrate Judge O’Connor

also considered the prospective testimony of Lula Springs, a “continuity of care”

worker1 with whom McClintock spoke shortly after the alleged incident. The court

held that the conversations between McClintock and Springs were privileged under

Jaffee v. Redmond2 and refused to allow Williams to call Springs to testify about

McClintock’s statements or to cross-examine McClintock about statements he might


   1
     A “continuity of care” worker collects information from inmates that is used to determine
whether they are eligible for certain community services upon their release from prison. The
conversation between McClintock and Springs took place because of his impending release, not as
a result of the allegations by Williams.
   2
    518 U.S. 1 (1996).

                                              2
have made to others. McClintock denied the assault at trial. The jury returned a

verdict for the defendants on all claims, and Williams timely moved for a new trial.

      Judge O’Connor reexamined the matter and concluded that Jaffee did not apply

to communications between Springs and McClintock, that McClintock should have

been subject to cross-examination about all inconsistent statements, and that a new trial

was necessary because of this error. He entered an order accordingly. Judge O’Connor

then retired from the bench and this case was assigned to Magistrate Judge Mathy.

      Bexar County moved for reconsideration of the court’s decision to order a new

trial. Judge Mathy granted this motion. She agreed with Judge O’Connor that the

statement made by McClintock to Springs was not privileged under Jaffee and should

have been admitted on cross-examination of McClintock or in direct testimony of

Springs. She believed that because Williams chose not to make McClintock a party to

the action, however, evidence of the statement was hearsay and could only have been

admissible for purposes of impeachment and not as substantive evidence. Concluding

that the jury could not have based a verdict on the statement because it merely affected

the weight and credibility of the evidence, Judge Mathy opined that a new trial was not

necessary. In short, Judge Mathy agreed with Judge O’Connor that he had erred in

excluding the testimony, but concluded that the erroneous exclusion of evidence that

                                           3
is “merely impeaching” was not sufficient to “nullify the decision of a properly

functioning jury.”

                                            ANALYSIS

       Williams contends that Judge Mathy was prevented by the law of the case

doctrine from reconsidering Judge O’Connor’s decision to grant a new trial. The “law

of the case” doctrine is a common label used to describe what is really four distinct

rules.3 Under each of its variations, the doctrine counsels the courts to refrain from

revisiting issues that have been decided in the same case.4 Such is the result of the

“sound policy that when an issue is once litigated and decided, that should be the end

of the matter.”5       The impact given to the doctrine, however, depends on the

circumstances: in some cases it is discretionary, in others it is mandatory. 6

   3
     The “law of the case” doctrine has been used to describe (1) the desire of a single court to adhere
to its prior rulings without need for repeated reconsideration; (2) the obligation of every court to
observe the rulings of a higher court; (3) the respect that one judge or court owes the rulings of
another judge or court in the same case or closely related cases; and (4) the consequences of failure
to appeal an issue or preserve an issue for appeal. C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL
PRACTICE AND PROCEDURE§ 4478, p. 788 (1981).
   4
    Arizona v. California, 460 U.S. 605 (1983).
   5
    United States v. United States Smelting Ref. & Mining Co., 339 U.S. 186 (1950).
   6
     White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967) (stating that a decision by an appellate
court “must be followed in all subsequent proceedings in the same case in the trial court or on a later
appeal in the appellate court, unless t he evidence on a subsequent trial was substantially different,
controlling authority has since made a contrary decision of the law applicable to such issues, or the
decision was clearly erroneous and would work manifest injustice”).

                                                   4
          When applied to decisions by judges on the same district court without an

intervening appeal, the doctrine represents a rule of comity, not a limit on judicial

power.7 Generally speaking, “when a district judge has rendered a decision in a case,

and the case is later transferred to another judge, the successor should not ordinarily

overrule the earlier decision.”8 But unlike the doctrines of stare decisis and res

judicata, the law of the case doctrine does not demand unwavering observance in this

context. It must give way “to the interests of justice and economy when those interests

are flouted by rigid adherence to the rule.”9 Indeed, because the basis for deciding an

issue often improves as a case progresses, district judges must have broad freedom to

reconsider their prior interlocutory rulings. For the same reason, a judge to whom a

case has been transferred has the same power to reconsider prior rulings as the

predecessor.10 Further, in a case such as this, where the predecessor judge is no longer


    7
     Messenger v. Anderson, 225 U.S. 436 (1912); Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th
Cir. 1983); C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478, at
790 (1981).
    8
     Loumar, 698 F.2d at 762; Stevenson v. Four Winds Travel, Inc., 462 F.2d 899, 904-05 (5th
Cir. 1972) (“where a judge of a United States District Court ..., while a case is on his calendar,
renders a decision and makes a judicial order ..., and thereafter the case is transferred to the calendar
of another judge of such District Court, the latter judge should respect and not overrule such decision
and order.”).

    Gallimore v. Missouri Pacific Railroad Co., 635 F.2d 1165 (5th Cir. 1981).
    9


    10
        Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir. 1982).

                                                   5
on the bench, a rule demanding strict adherence to all of the predecessor’s orders

would effectively deprive the parties of the opportunity for reconsideration.

        We therefore review the decision by a trial judge to reconsider a prior trial

judge’s interlocutory ruling for abuse of discretion.11 Without question, reconsideration

of a ruling by a prior judge is within a judge’s discretion when it is made in order to

correct a clear error of law,12 take account of a clarification in the applicable law from

a higher court,13 or reflect new facts that are part of a better-developed record.14 This

discretion, while “necessarily bountiful,”15 is not unlimited, however, and does not

permit a subsequent judge to “overrule the earlier judge’s order or judgment merely

because the latter judge might have decided matters differently.” 16

        We conclude and hold that Magistrate Judge Mathy abused her discretion in

rescinding Magistrate Judge O’Connor’s order for a new trial. Her detailed opinion

reflects no adequate basis for same. We find no suggestion of intervening legal or


   11
     Gallimore, 635 F.2d 1165; Loumar, 698 F.2d 759.
   12
     Loumar, 698 F.2d 759.
   13
     Gallimore, 635 F.2d 1165; Blair v. Sealift, Inc., 91 F.3d 755 (5th Cir. 1996).
   14
     United States v. Boruff, 909 F.2d 111 (1990).
   15
     Loumar, 698 F.2d 759.
   16
     United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997).

                                               6
factual developments which required her to revisit the issue, nor do we find a basis for

the conclusion that conducting a new trial might work manifest injustice. Judge

Mathy’s opinion notes no error of law by Judge O’Connor. In fact, with regard to the

paramount issue in this case, whether communications between McClintock and

Springs were privileged, Judge Mathy reached precisely the same conclusion as Judge

O’Connor.

        The reason for the divergent resolutions is a difference in opinion over the

potential impact of evidence that might be used to impeach McClintock’s testimony.

Judge O’Connor granted a new trial because he believed he had erred in preventing

Williams’ attorney from cross-examining McClintock about his statements to Springs.

He no doubt recognized that because the fact of the assault was a matter about which

the jury may have been uncertain,17 and because McClintock was the only person other

than Williams who potentially had knowledge of the alleged attack, the issue of

McClintock’s credibility was crucial. Judge O’Connor’s decision was based on his

belief that failure to allow Williams to confront McClintock resulted in substantial

prejudice to his case. Judge Mathy based her decision to vacate the order for a new


   17
      During its deliberations, the jury questioned the judge about the relationship between a finding
that the rape occurred and the ultimate issue of negligence, suggesting that the jury might have had
difficulty determining whether the rape actually occurred.

                                                  7
trial on her conclusion that evidence of statements made by McClintock to Springs

would not be admissible except to impeach McClintock. In Judge Mathy’s estimation,

evidence that is “merely impeaching” is not sufficient to warrant a new trial. While she

correctly noted that new trials rarely are granted based on the erroneous exclusion of

impeachment evidence, it was certainly within Judge O’Connor’s discretion to do so.18

Any error of law, if prejudicial, is a valid ground for a new trial.19 A prudent exercise

of discretion under these circumstances requires deference to the judge who, having

tried the case, is in a better position to decide this issue of potential prejudice. It is a

given that the judge who conducts the trial typically is in the best position to estimate

prejudicial impact on a jury.20



   18
      Carson v. Polley, 689 F.2d 562 (5th Cir. 1982) (finding no abuse of discretion where trial court
ordered new trial primarily based on the inadvertent submission to the jury of credibility evidence that
the trial court had ruled inadmissible, and based in part on trial court's post-verdict reversal of an
order excluding evidence that should have been admitted); English v. Mattson, 214 F.2d 406 (5th
Cir. 1954) (“[A] motion for new trial is addressed to the sound discretion of the trial judge and will
not be disturbed except for a clear abuse of that discretion.”).
   19
      C. WRIGHT, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2805, at 55 (1955).
In disposing of this appeal on law of the case grounds, we decline to consider the propriety of Judge
O’Connor’s and Judge Mathy’s conclusions regarding the applicability of federal privileges generally
and the psychotherapist-patient privilege specifically. For purposes of this appeal, then, we assume
without deciding that Judge O’Connor erred at trial by excluding Spring’s testimony and prohibiting
cross-examination of McClintock and that it was not an abuse of discretion for Judge O’Connor to
order a new trial. We also decline to consider Judge Mathy’s privilege rulings, under both 42 U.S.C.
§ 290dd-2 and Texas law, made in anticipation of a second trial.
   20
     Cruthirds v. RCI, Inc., 624 F.2d 632 (5th Cir. 1980).

                                                   8
      We believe that reconsideration of the grant of a new trial under these

circumstances was an abuse of discretion, and accordingly VACATE the order

appealed, reinstate Judge O’Connor’s order for a new trial, and REMAND this case

for same.




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