                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 17 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID K. MANN; ELIZABETH S.                      No. 12-35373
MANN; DELANEY MANN;
MACKENZIE MANN,                                  D.C. No. 9:10-cv-00128-DLC

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

REDMAN VAN & STORAGE CO., INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                           Submitted October 10, 2013**
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       The Manns, Plaintiffs-Appellants, appeal from a district court’s denial of

their Rule 59 motion for a new trial following a jury verdict in Defendant-Appellee


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Redman’s favor. The Manns and defendant Redman’s employee, Anderson, were

involved in an accident in 2008. Anderson was driving a semi-truck on a two-lane

highway. He slowed to make a left turn as the Manns attempted to pass

Anderson’s truck in the left lane. The two vehicles collided. The Manns brought

suit against Anderson’s trucking company alleging that the company’s negligence

had caused them serious injury. At trial they presented a variety of theories of

negligence, including arguments that 1) Anderson’s trailer’s pigtail cables had

detached and therefore the turn signal was not working at the time of the accident,

in violation of Montana law, and 2) Redman had violated federal record-keeping,

training, and testing regulations relating to Anderson. The jury found Redman not

negligent. The Manns moved for a new trial, arguing that the verdict was against

the weight of the evidence and that the district court improperly instructed the jury.

The district court denied the motion, and the Manns appealed.

      We review a district court’s decision not to grant a new trial, its formulation

of the jury instructions, and its decision not to give a proposed spoliation

instruction all for abuse of discretion. Kode v. Carlson, 596 F.3d 608, 611 (9th

Cir. 2010); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); Millenkamp v.

Davisco Foods Int’l, Inc., 562 F.3d 971, 981 (9th Cir. 2009).

      The district court did not abuse its discretion in refusing to grant a new trial.


                                           2
      [W]here the basis of a Rule 59 ruling is that the verdict is not against
      the weight of the evidence, the district court’s denial of a Rule 59
      motion is virtually unassailable. In such cases, we reverse for a clear
      abuse of discretion only where there is an absolute absence of
      evidence to support the jury’s verdict.

Kode, 596 F.3d at 612 (emphasis in original) (citation and internal quotation marks

omitted).

      Plaintiffs argue that the jury’s verdict, finding defendant was not negligent,

is not supported by the evidence at trial because the truck driver admitted that the

truck’s pigtail cables had come undone, and therefore his turn signal was not

working, constituting negligence per se. This is not a full description of the

evidence. The truck driver also stated twice that he did not know whether the

pigtail cables were connected at the time of the accident. The defense also

presented evidence that it was extremely unlikely for the cables to detach under the

circumstances.

      The district court also did not abuse its discretion in refusing to instruct the

jury that violation of a federal regulation constitutes negligence per se. This case is

in diversity and is governed by Montana tort law. The Montana Supreme Court

has held that violation of a statute can constitute negligence per se, but violation of

a regulation cannot. Harwood v. Glacier Elec. Coop., 949 P.2d 651, 656 (Mont.




                                           3
1997). Appellants provide no compelling reason to disregard this clear statement

of Montana tort law.

      Finally, the district court did not abuse its discretion in refusing to give a

spoliation instruction. Plaintiffs argued at trial that Redman had refused to turn

over evidence of Anderson’s training, citation record, and drug test(s). This was in

the alternative to plaintiffs’ primary argument that Redman failed to provide

adequate training or keep records. The district court declined to give either of

plaintiffs’ proposed spoliation instructions, finding them confusing and concluding

that either instruction would be an unfair comment on the evidence. The district

court allowed plaintiffs to argue that the jury should presume the evidence in the

missing records was favorable to plaintiffs. Given the wide latitude district courts

have in instructing the jury, the district court did not abuse its discretion. See

Glover v. BIC Corp., 6 F.3d 1318, 1327 (9th Cir. 1993).

      AFFIRMED.




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