                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-2008


RONALD WATKINS, Individually; BRENDA WATKINS, Individually,

                Plaintiffs - Appellants,

          v.

MANUEL CASIANO, MD; FORIS SURGICAL GROUP, LLP,

                Defendants – Appellees,

          and

FREDERICK MEMORIAL HOSPITAL, INCORPORATED,

                Party-in-Interest.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:07-cv-02419-CCB)


Submitted:   December 30, 2010               Decided:   March 1, 2011


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Julia A. Lodowski, Emily C. Malarkey, SALSBURY, CLEMENTS,
BEKMAN,   MARDER  &   ADKINS,  LLC, Baltimore, Maryland, for
Appellants.    Frederick W. Goundry, III, VARNER & GOUNDRY,
Frederick, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Ronald and Brenda Watkins appeal the district court’s

order denying their Fed. R. Civ. P. 59(a) motion for a new

trial, after a jury verdict for the defendants in a medical

malpractice action.            On appeal, the Watkinses seek a new trial,

claiming unfair surprise deprived them of a fair trial.                               They

contend that Dr. Manuel Casiano’s statement on the first day of

trial    and    his    subsequent      testimony    that    he   used     a    different

surgical stapler than that referenced in the operative notes

presented a new theory of defense.

               We     review    the     district      court’s       denial       of     the

Watkinses’      motion    for    new    trial   for   an    abuse    of       discretion.

Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500 (4th Cir.

2001).     A district court should grant a new trial if “(1) the

verdict is against the clear weight of the evidence, or (2) is

based upon evidence which is false, or (3) will result in a

miscarriage of justice, even though there may be substantial

evidence       which    would    prevent    the    direction        of    a    verdict.”

Knussman       v.   Maryland,     272    F.3d     625,     639   (4th     Cir.        2001)

(internal citation omitted).              Rule 59 allows for a new trial in

the event of unfair surprise, but surprise warrants a new trial

only if “it deprives the party of a fair hearing.”                              Twigg v.

Norton Co., 894 F.2d 672, 675 (4th Cir. 1990).                      “The movant must

show     reasonably       genuine       surprise,        which   necessarily           was

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inconsistent     with    substantial      justice    and    which    resulted      in

actual prejudice.”        Id. (internal quotation marks and citations

omitted).       We     have   carefully       reviewed    the    briefs     and   the

extensive record in this case and conclude that the district

court did not abuse its discretion in denying the Watkinses’

motion for a new trial.

              Accordingly, we affirm.          We grant Appellees’ motion to

submit on briefs and dispense with oral argument because the

facts   and    legal    contentions    are     adequately       presented    in   the

materials     before    the   court   and      argument    would    not     aid   the

decisional process.

                                                                            AFFIRMED




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