UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HILTON JONES,
Plaintiff-Appellee,

and

WILLIA E. JONES,
Plaintiff,

v.

WAL-MART STORES, INCORPORATED;
GARY NIGH,
                                                               No. 97-1949
Defendants-Appellants,

and

SAM'S CLUB; UNKNOWN FORKLIFT
OPERATOR; DAYMARK FOODS,
INCORPORATED; NATIONAL CARRIERS;
UNITED REFRIGERATED SERVICES,
INCORPORATED,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-93-2722-WN)

Argued: September 24, 1998

Decided: October 26, 1998

Before WILKINSON, Chief Judge, and WILKINS and
NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Jeffrey M. Kotz, ROSOLIO & KOTZ, P.A., Towson,
Maryland, for Appellants. Howard Leslie Metz, ASHCRAFT &
GEREL, Rockville, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In January 1992, Hilton Jones, a truck driver, was injured while
making a delivery to a Sam's Club store in Hagerstown, Maryland.
Sam's Club is operated by a subsidiary of Wal-Mart, Inc. While Jones
was standing in the loading dock area, a forklift driver, who was
employed by Wal-Mart, spilled his load, which fell on Jones, injuring
his neck and back. Jones' negligence claim against Wal-Mart and its
employee was presented to a jury which returned a verdict in his favor
in the amount of $40,174 for medical bills, $198,513 for past and
future earnings, and $11,313 for noneconomic damages.

On appeal, Wal-Mart (and its employee) contend that (1) the evi-
dence was insufficient to support the jury's verdict with respect to the
extent of injury, the cause of injury, and Jones' medical expenses; (2)
the trial judge abused his discretion in limiting the scope of a doctor's
videotaped deposition that was presented to the jury; and (3) the trial
judge abused his discretion in prohibiting a surveillance video tape,
which had been admitted into evidence, from going to the jury room.

Having reviewed the record carefully, we conclude that there was
ample evidence from which the jury could have returned its verdict.
Wal-Mart did present evidence of several prior injuries to Jones, rais-
ing questions about the extent and causation of the injuries he pre-
sented to the jury. Moreover, the testimony of three doctors was in

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conflict, and certain discrete matters of testimony were legitimately
subject to question. But all of these matters were fully presented to
the jury, and the jury, acting in its role to resolve evidentiary con-
flicts, did in fact resolve them by returning its verdict. In addition, we
note that Wal-Mart did not adequately preserve its claim challenging
the sufficiency of the evidence, having failed to file a motion for
judgment notwithstanding the verdict under Federal Rule of Civil
Procedure 50(b), and therefore it is not be entitled to entry of judg-
ment in its favor on that basis. See F. R. Civ. P. 50(b); Johnson v.
New York, New Haven & Hartford RR Co., 344 U.S. 48 (1952).

The district court's ruling during trial that only part of Dr. Michael
Kyles' second deposition could be presented to the jury was appar-
ently based in part on the fact that the excluded part consisted of cross
examination which went beyond Dr. Kyles' direct testimony. In
appropriate circumstances, a party might be able to convert an oppos-
ing expert witness to an expert of its own, but when that effort is first
undertaken at trial, as occurred here, pretrial discovery and the pretrial
conference are frustrated. In this circumstance, it is well within the
discretion of the trial judge to balance the considerations of fairness
and notice to the parties. We cannot say that in the peculiar circum-
stances of this case the district court abused its discretion.

Finally, on Wal-Mart's contention that the district court abused its
discretion in withholding from the jury during deliberations a surveil-
lance video tape that had been admitted into evidence, we can find no
place in the record where either the district court or the parties
addressed this issue. We can find no request from counsel to send the
tape to the jury room nor can we find an order of the court denying
a request. Moreover, we cannot find any objection by Wal-Mart's
counsel noting that the tape had not been sent to the jury room. This
is the type of matter that easily could have been cured if it had been
raised. Because Wal-Mart failed to raise its concern or preserve any
error, we cannot review it on appeal. Moreover, we note that the jury
saw the videotape twice during the trial, and nothing prevented it
from making a request to see it again during deliberations. Further,
the trial judge instructed the jury that it was to consider all of the
admitted evidence. We can perceive no harm in these circumstances
from the fact that the jury did not have the videotape in the jury room
during its deliberations.

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The judgment of the district court is

AFFIRMED.

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