     Case: 18-60160      Document: 00514687520         Page: 1    Date Filed: 10/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-60160                            FILED
                                  Summary Calendar                   October 18, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
RONALD STAFFORD,

              Plaintiff - Appellee

v.

LAMORAK INSURANCE COMPANY, formerly known as One Beacon
America Insurance Company,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:15-CV-414


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       In 2012, a driver rear-ended the county-owned vehicle that Ronald
Stafford was in while spraying weeds for his employer. Stafford was similarly
rear-ended in 2014. Stafford filed separate lawsuits for the accidents. In this
case, which involves the first accident, Stafford settled with the insurer of the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 18-60160
driver that hit him. But his claims for underinsured motorist coverage against
his insurer GEICO and Pearl River County’s insurer Lamorak culminated in a
three-day trial. The jury awarded Stafford over $1 million in economic and
noneconomic damages. Only Lamorak appeals. It argues that a new trial is
warranted because a jury instruction was misleading, the award of economic
damages went against the overwhelming weight of the evidence, and the
district court improperly excluded references to Stafford’s other lawsuit.
                                                I.
       A district court may grant a new trial in order to prevent injustice. FED.
R. CIV. P. 59(A)(1). The district court’s refusal to do so is reviewed for a “clear
showing of an abuse of discretion.” Seibert v. Jackson Cnty, Miss., 851 F.3d
430, 438 (5th Cir. 2017). This deference flows from the district court’s “first-
hand experience” with the trial. Dawson v. Wal-Mart Stores, 978 F.2d 205, 208
(5th Cir. 1992). 1
                                           A.
       Lamorak faces an even more daunting standard of review because it did
not preserve all of the grounds on which it seeks a new trial. For example,
Lamorak failed to object to the jury instructions at the charge conference as
the rules require. FED. R. CIV. P. 51(B)(2), (C)(2)(A). Our review is accordingly
only for plain error. FED R. CIV P. 51(D)(2). That means we can only correct
an error if it is plain, affects substantial rights, and undermines the fairness,
integrity, or public reputation of judicial proceedings. See Jimenez v. Wood
Cnty, Tex., 660 F.3d 841, 845 (5th Cir. 2011) (en banc).



       1  Lamorak argues that Mississippi law governs the new trial motion in light of
Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 419 (1996). The cases it cites involve
efforts to seek remittitur or additur of damages as opposed to a new trial. See, e.g., Foradori
v. Harris, 523 F.3d 477, 498 (5th Cir. 2008). In any event, Lamorak does not identify any
difference between the federal standard for granting a new trial and Mississippi’s, which
copies the federal rule. See MISS. R. CIV. P. 59(A).
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                                  No. 18-60160
      To Lamorak, the jury’s giving Stafford everything he asked for means it
must have been unable to apportion damages between the 2012 and 2014
accidents. It further speculates that this inability to apportion led the jury to
award the combined damages for this one incident. According to Lamorak, the
cause of this supposed mistake is the following instruction:
      Plaintiff is not entitled to damages from Defendants for any
      injuries which existed prior to the [2012 accident]. If you find that
      the . . . 2012 accident caused any aggregation of any preexisting
      injury . . . , Defendants bear the responsibility for the portion of
      the injury or the aggravation of the injury that the . . . 2012
      accident caused. Where you the members of the jury cannot
      apportion the damages between [Stafford’s] preexisting condition
      and the . . . 2012 accident, then in that case Defendants may be
      liable for the whole amount of damages on the basis that one who
      injures another suffering from a preexisting condition is liable for
      the entire damage when no apportionment can be made between
      the preexisting condition and the damage caused by the [2012]
      accident . . . Thus the Defendants must take [Stafford] as they find
      him. (emphases added).
      The language of the instruction rejects Lamorak’s theory. It addresses
apportioning damages between injuries caused by the 2012 accident and
preexisting ones; later injuries are not mentioned. Maybe the court should
have expressly noted that this instruction was not addressing the 2014
accident, but Lamorak never asked for that clarification. Because nothing the
instruction says is incorrect, it is not an error, let alone an obvious one.
                                      B.
      Lamorak also failed to preserve its second ground for a new trial: that
the award of economic damages (about half of the total award) went against
the overwhelming weight of the evidence because Stafford’s experts did not
isolate damages to those caused by the 2012 accident. 2 Although it moved for


      2  Lamorak contends the jury awarded $37.79 more than the economic damages
Stafford sought. Both sides agree that Stafford sought $539,468.21 in lost wages and
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a directed verdict at the close of Stafford’s case-in-chief, Lamorak did not renew
that motion after the verdict nor did it cite problems with the expert testimony
as a ground for new trial. Because the trial court never had the opportunity to
consider whether alleged problems with the expert testimony justified a new
trial, there is no exercise of discretion for us to review. See Wellogix, Inc. v.
Accenture, L.L.P., 716 F.3d 867, 878 (5th Cir. 2013) (holding that an argument
neither contained in a new trial motion nor presented to the district court
otherwise is not preserved). Lamorak’s failure to ask the district court for a
new trial on this ground thus likely bars us from considering that argument in
the first instance. 3
       In any event, the verdict was not against the “great weight of the
evidence.”     See Seibert, 851 F.3d at 439.             Lamorak makes much of an
assumption from Stafford’s economist that the 2012 trial caused nearly all of
Stafford’s lost wages and benefits. But the economist’s testimony is consistent
with Stafford’s medical expert, who testified that Stafford’s employment
limitations were primarily caused by the first accident, though the second
accident did increase his pain levels. Lamorak did not present a medical expert
to counter this testimony, nor did it present its own damages expert. Similarly,
Lamorak’s various attacks on the vocational expert’s testimony do not cast



benefits plus $32,884.51 for past medical bills. The sum of these two numbers is $572,352.72,
meaning that the jury actually awarded Stafford $37.79 less than the economic damages he
sought.
        3 Our caselaw is inconsistent on whether failure to renew postverdict a Rule 50(b)
motion for judgment as a matter of law forecloses an appeal or just results in plain error
review. Compare McLendon v. Big Lots Stores, Inc., 749 F.3d 373, 375 n. 2 (2014), with
Shepherd v. Dallas Cnty., 591 F.3d 445, 456 (5th Cir. 2009); see also Unitherm Food Systems,
Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). It seems even more of a stretch to seek a new
trial on appeal that was not presented postverdict to the trial court given the discretionary
nature of a new trial request. Indeed, Lamorak cites no case that allows us to review, even
under plain error, an unpreserved claim seeking a new trial on the ground that the verdict
went against the overwhelming weight of the evidence the trial court heard.

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significant doubt on the verdict. Nor does its argument that Stafford used
medical records from the second accident. 4 Even if the damages award was
debatable, as is usually the case, the jury’s award was not against the great
weight of the evidence.
                                           C.
       Lamorak’s final argument for a new trial was at least preserved. It
argued both pretrial (in opposing a motion in limine) and in its new trial motion
that the district court should not have excluded testimony that Stafford had
filed a lawsuit seeking damages for the second accident. As we have already
alluded to, much of the trial focused on whether the first or second accident
was responsible for Lamorak’s injuries. But the district court granted a limine
motion to exclude evidence that Stafford had filed a suit relating to the second
accident. In that pretrial ruling, the court concluded that the second lawsuit
was “not relevant to the instant litigation and could mislead or confuse the jury
and unduly prejudice Plaintiff.” Yet the court did not impose a blanket ban on
mentioning the second trial. It permitted the impeachment of Stafford based
on any inconsistent statements made in the other litigation. In rejecting this
evidentiary ruling as a basis for a new trial, the district court cited Federal
Rule of Evidence 403 and concluded that evidence of the second lawsuit would
be irrelevant and risked being unfairly prejudicial.
       A district court’s balancing of Rule 403 factors is reviewed for clear abuse
of discretion. United States v. Ambriz, 727 F.3d 378, 385 (5th Cir. 2013).
Lamorak thus carries the burden of showing not only that the district court’s
evidentiary ruling was a clear abuse of discretion, but that it was so obviously



       4  Lamorak points us to Exhibit P-1, which is just pictures of the accident. It seems
that it meant P-18, a nearly 50 page compilation of medical records. Though some records
are dated after the 2014 accident, nothing establishes that they were medical expenses
directly attributed to that accident.
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                                      No. 18-60160
improper that a failure to grant a new trial on that basis would itself be an
abuse of discretion. Lamorak cannot get over these hurdles. It may have been
reasonable to allow discussion of the second lawsuit. See Brake v. Speed, 605
So.2d 28, 34 (1992) (finding no abuse of discretion in the trial court allowing
discussion of a second lawsuit in a similar case). But that does not mean it
was unreasonable to draw the Rule 403 line where this trial judge did: defense
counsel could fully explore the second incident and impeach based on
inconsistent statements from the second lawsuit, 5 but otherwise could not refer
to the second lawsuit. References to a second lawsuit with similar facts could
have confused the jury or led it to improperly believe that Stafford would be
well-compensated for his injuries regardless of its verdict. The court did not
abuse its considerable discretion in making this evidentiary ruling.
                                          ***
       The judgment is AFFIRMED.




       5 Lamorak chose not to take this impeachment option, despite noting in its opposition
to the limine request that Stafford claimed in the second suit that the defendants were the
“sole cause” of “his serious and permanent injuries.”

                                             6
