           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 8, 2008

                                     No. 07-30623                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




DEVIN RAMSEY and DONNA RAMSEY,

                                                  Plaintiffs-Appellants,
v.

PEPSI COLA BOTTLING CO.,
Also Known as DELTA BEVERAGE GROUP, INC.,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                No. 3:05-CV-284




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Several cases of Pepsi-Cola fell from a cart being used by an employee of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-30623

Delta Beverage Group, Inc. (“Delta Beverage”), to stock a store display. The cas-
es struck and injured customer Devin Ramsey as he stood nearby. Ramsey and
his wife, Donna Ramsey, sued Delta Beverage, and a jury awarded Devin
$64,255 in damages and Donna $745 for loss of consortium.
      The Ramseys appeal the decision not to grant a new trial, contending the
award is insufficient and inconsistent with the jury’s finding that the employee’s
negligence was the cause of Ramsey’s injuries. The Ramseys also assert that
they should receive a new trial because the court prejudiced their case by raising
certain objections sua sponte. Because we grant significant deference to the find-
ings of juries, including their allocation of damages, and because the statements
by the court were not prejudicial, we affirm.


                                        I.
      In March 2004, Ramsey suffered neck and lower back injuries in a motor-
cycle accident. An MRI taken in June 2004 indicated that he had partially her-
niated disks in his back at L4-L5 and L5-S1. The Pepsi Cola incident occurred
less than six months later. Ramsey sought treatment from Dr. Boucree, and an
MRI made in the course of that treatment revealed that Ramsey was still suffer-
ing from herniated disks at L4-L5 and L5-S1.
      Boucree treated Ramsey with a combination of anti-inflammatory and pain
medicines and a back corset. None of these treatments was very effective, so
Ramsey agreed to have surgery to relieve the pain. In July 2005, while Boucree
took a leave of absence from his practice, Dr. Arnold Feldman performed an en-
doscopic discectomy on Ramsey’s L4-L5 disks. After the procedure, Ramsey told
Feldman the pain had been significantly reduced.
      In August 2005, Ramsey was involved in another motorcycle accident,
after which he returned to Boucree for additional treatment for back pain. In
October 2005, Boucree performed the open-back procedure he had planned to


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perform in July 2005.
       Boucree testified that the endoscopic discectomy performed by Feldman
was actually a purcutaneous discectomy. Boucree also testified that he does not
believe purcutaneous discectomies are very effective and that the peer-reviewed
literature and clinical trials have not shown them to be effective. Boucree did,
however, state that endoscopic discectomies can be as effective as the open proce-
dure but that he prefers the open procedure.
       Feldman testified that he performed an endoscopic discectomy but that
some people consider a purcutaneous discectomy the same procedure as an endo-
scopic discectomy. There was evidence questioning whether Boucree had review-
ed Feldman’s operative report, suggesting that Boucree was misinformed about
the actual type of procedure performed. Ultimately, both doctors offered conflict-
ing and inconclusive testimony about the cause of Ramsey’s injuries and the ef-
fectiveness of the various treatments received.


                                                II.
       The Ramseys purport to raise four issues on appeal, but their sole claim
is that the district court erred by denying a new trial.1 The Ramseys offer three
reasons that this is error: The jury award is inadequate and unsupported by the
evidence; the jury’s interrogatory answers are inconsistent; and the court preju-
diced the case by raising objections sua sponte.
       A motion for a new trial is properly denied unless the verdict is “against


       1
         The Ramseys seem to assert that the court should have increased the award to cover
all the medical expenses and to accord with other Louisiana cases involving back surgeries.
The Ramseys also correctly recognize, however, that federal courts cannot order an additur,
“because it would require the plaintiff to ‘forego his constitutional right to the verdict of a jury
and accept an assessment partly made by a jury which has acted improperly, and partly by a
tribunal which has no power to assess.’” Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 985 (5th
Cir. 1989) (quoting Dimick v. Schiedt, 293 U.S. 474, 487 (1935)). Thus, “[i]f the trial judge
finds the damages assessed inadequate as a matter of law, then the plaintiff deserves a new
jury trial,” id., the only possible remedy in federal court in such a situation.

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                                       No. 07-30623

the great [weight], not merely the preponderance, of the evidence.” Jones, 870
F.2d at 986. We review the denial of a new trial for abuse of discretion. We
must set aside a verdict where the evidence furnishes no sound basis and the
trial court has refused to grant a new trial. Id. Because this is a diversity case,
the sufficiency of the evidence required to support the verdict is governed by the
federal standard, id., which is “that all the evidence must be viewed in a light
most favorable to the jury’s verdict, and the verdict must be affirmed unless the
evidence points ‘so strongly and overwhelmingly in favor of one party that the
court believes that reasonable men could not arrive at a contrary [conclusion].’”
Id. at 987 (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en
banc)).
       The evidence does not overwhelmingly point in favor of a greater award,
so we affirm. As the Ramseys correctly note, in Louisiana “[a] tortfeasor is only
liable for damages caused by his negligent act; he is not liable for damages
caused by separate, independent or intervening causes of damage. The plaintiff
has the burden of proving that his injuries were not the result of separate, inde-
pendent and intervening causes.”2 We cannot say that the only conclusion rea-
sonable people could arrive at is the explanation offered by the plaintiffs: that
Ramsey had fully recovered from the first motorcycle accident, suffered back in-
juries in the Pepsi incident, and suffered no additional injuries in the second
motorcycle accident. The evidence allows for an alternate account, one the jury
apparently accepted, that the Pepsi incident aggravated an earlier injury that
was adequately treated by the endoscopic discectomy and that the cause of much




       2
         Thomas v. Hartford Ins. Co., 540 So. 2d 1068, 1075 (La. App. 1st Cir. 1989) (internal
citations omitted), writ denied, 542 So. 2d 516 (La. 1989), overruled on other grounds, Cosse
v. Allen-Bradley Co., 625 So. 2d 486, 489 (La. 1993).


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                                        No. 07-30623

of Ramsey’s pain and medical expenses was the second motorcycle accident.3
Thus, the jury awarded damages that it concluded properly represented the
harm caused by the Delta Beverage employee’s negligence and implicitly con-
cluded the other harm was caused by “separate, independent and intervening
causes.” Thomas, 540 So. 2d at 1075. Because this is a reasonable conclusion,
the award was not against the great weight of the evidence.
       The Ramseys assert that, because the jury affirmatively answered the sec-
ond interrogatory stating that the Delta Beverage employee’s negligence was the
“cause-in-fact and a legal cause of any injury that . . . Devin Ramsey suffered in
the accident on September 14, 2004,” it was inconsistent not to award Ramsey
the amount of his full medical expenses. As reasoned above, however, the jury
was free not to accept Ramsey’s theory of the case, that the injuries requiring the
treatment he received were all suffered in the Pepsi incident. It was reasonable
for the jury to conclude, in accordance with the interrogatory, that the negligence
of Delta Beverage’s employee was the cause of the injury suffered on that date
but that the treatment Ramsey received was for injuries he suffered before or
after that date, in the first or second motorcycle accident. Given “‘that a jury has
great discretion in determining and awarding damages in an action for personal
injuries,’”4 the jury’s affirmative answer to the second interrogatory is not irrec-
oncilable with the award.
       The Ramseys claim that the court’s sua sponte objections to their questions
warrant a new trial. Though we normally review for abuse of discretion the deci-
sion not to grant a new trial, here we review for plain error because the Ramseys


       3
        If the jury drew these conclusions, it discounted Boucree’s testimony that the surgery
was necessary before the second accident, and the second accident did not aggravate Ramsey’s
back injuries. As the fact finder, the jury has the prerogative to discount the testimony of any
witness and accept an alternate explanation.
       4
          Chevalier v. Reliance Ins. Co., 953 F.2d 877, 881 (5th Cir. 1992) (quoting Book v. Nor-
drill, Inc., 826 F.2d 1457, 1462 (5th Cir. 1987)),

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                                   No. 07-30623

failed to object to the court’s statements. Dixon v. Int’l Harvester Co., 754 F.2d
573, 585 (5th Cir. 1985). For us to reverse for plain error, the error must be
clear or obvious and affect a substantial right; if both of these conditions are met,
we will, at our discretion, correct the error if failing to do so would seriously af-
fect the fairness, integrity, or public reputation of the judicial proceedings.
Wright v. Ford Motor Co., 508 F.3d 263, 272 (5th Cir. 2007).
      The Ramseys offer eight instances in which they say the district court pre-
judiced them by raising objections sua sponte. In one instance, the court appro-
priately asked the Ramseys’ attorney to identify the exhibit; five of the examples
cited are not sua sponte objections at all but are proper responses to objections
made by the defendant; and the final two occasions cited by the Ramseys show
the court reminding their attorney not to ask leading questions, though there
was no objection by the defendant. Assuming arguendo those two reminders are
error, they certainly do not affect a substantial right. “In appraising the effect
of these comments, we consider the record as a whole and not merely isolated re-
marks.” Dixon, 754 F.2d at 585. Here, two statements by the court regarding
leading questions in almost one thousand pages of transcript do not affect a sub-
stantial right such that the integrity of the trial was undermined.
      AFFIRMED.




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