                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                                F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                October 18, 2006
                              FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      No. 06-40049
                                   Summary Calendar
                               __________________________


STEPHEN JOHN IRVING

                                                                      Plaintiff-Appellant,

versus

FREIGHTLINER, LLC

                                                                     Defendant-Appellee.

                 ___________________________________________________

                       Appeal from the United States District Court
                             for the Eastern District of Texas
                                    (No. 1:03-CV-1391)
                 ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         Stephen Irving was awarded nothing by a jury in a products liability suit against

Freightliner, LLC. Irving appeals the district court’s denial of his motions for judgment

as a matter of law and for a new trial. For the following reasons, we affirm.




         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                            I. FACTS AND PROCEEDINGS

       In this diversity action, Irving, a truck driver, sustained serious injuries during a

pre-trip inspection of his truck when the truck’s hood fell on his head. The hood of this

truck opens from back to front, the opposite of most passenger cars. In order to prevent

the hood from “over travelling” and falling past an upright position so as to move towards

the front bumper, this particular model of truck uses a pair of nylon straps that prevent the

hood from moving past an upright position when opened.

       On November 11, 2001, Irving was at his brother’s home before a job. He attempted

his pre-trip inspection while in the midst of mid-day grilling. He began the inspection

with a spatula in his hand but dropped it before opening the hood. After opening the

hood, Irving bent over to pick up the spatula. While bent over, the hood “over travelled”

and fell on his head, causing serious injuries. Irving filed suit against Freightliner, the

manufacturer of the truck, which designated U.S. Xpress, Irving’s employer, as a

responsible third party. U.S. Xpress is not a party to this appeal.

       Approximately a week after the incident, two U.S. Xpress employees retrieved the

truck, receiving the keys from Irving’s brother Mark. Mark Irving stated that he was

present when the two employees performed a pre-trip inspection prior to taking the

vehicle and that he observed one of these employees find a bolt underneath the truck.

       The jury found that Freightliner was twenty percent responsible for the incident,

U.S. Xpress was ten percent responsible, and Irving himself was seventy percent

responsible. Because Irving was found to be more than fifty percent responsible for his


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injuries, the jury did not reach the damages question. Irving was awarded nothing. TEX.

CIV. PRAC. & REM. CODE § 33.001 (“In an action to which this chapter applies, a claimant

may not recover damages if his percentage of responsibility is greater than 50 percent.”).

The district court denied Irving’s motions for judgment as a matter of law and for a new

trial, and Irving timely appealed, raising three points of error.

                              II. STANDARD OF REVIEW

       We will reverse a district court’s denial of a motion for judgment as a matter of law

only if, “draw[ing] all reasonable inferences and resolv[ing] all credibility determinations”

in favor of the nonmovant, the evidence points so overwhelmingly in favor of the movant

that no reasonable juror could return a verdict for the nonmovant.” Int’l Ins. Co. v. RSR

Corp., 426 F.3d 281, 296 (5th Cir. 2005); see also Cousin v. Trans Union Corp., 246 F.3d 359,

366 (5th Cir. 2001). In reviewing the denial of a motion for a new trial, we will only

reverse if there is a clear abuse of discretion. Wells Fargo Bus. Credit v. Ben Kozloff, Inc.,

695 F.2d 940, 944 n.3 (5th Cir. 1983).

       We review the district court’s evidentiary rulings for abuse of discretion. See

Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 375 (5th Cir. 2004). This

includes a decision by the district court to exclude expert testimony. See Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 138–39 (1997).

                                       III. DISCUSSION

A.     Negligence findings against Irving and U.S. Xpress

       Irving argues that the jury’s findings of negligence against him and U.S. Xpress


                                              3
must be overturned on appeal because the record contained no “evidence upon which a

reasonable trier of fact could conclude as the jury did.” Molnar v. Ebasco Constructors,

Inc., 986 F.2d 115, 117 (5th Cir. 1993). In particular, Irving argues that the testimony did

not establish negligence by Irving or show that any actions or inactions taken by him could

have been the proximate cause of his injuries. The defendant’s safety expert testified

regarding Irving’s deposition testimony and provided sufficient evidence from which the

jury could conclude that Irving’s inspection was negligent with respect to the straps. The

jury has the role of evaluating the credibility of testimony. See Boyle v. Pool Offshore Co.,

893 F.2d 713, 716 (5th Cir. 1990); see also Hindman v. City of Paris, 746 F.2d 1063, 1068 (5th

Cir. 1984) (noting that “the question of a witness’s credibility is the purest of jury issues”).

We find no error by the district court on this point.

       With respect to the negligence finding against U.S. Xpress, we likewise observe that

the jury’s verdict was based on sufficient evidence. The jury properly considered the

testimony and concluded U.S. Xpress was negligent. As the district court pointed out, the

evidence against U.S. Xpress was weaker than that against Irving or Freightliner, and the

relative assessment of fault reflected this difference. We decline to upset the jury’s finding

on appeal.

       Irving has not demonstrated that a reasonable jury could not find him and U.S.

Xpress liable based on the evidence. Accordingly, we find no error in the district court’s

refusal to grant Irving’s motions on this ground.

B.     Mark Irving’s testimony


                                               4
      Irving’s second point of error is that the district court abused its discretion in

excluding a portion of Mark Irving’s testimony relating to the presence of a bolt

underneath the truck during a post-accident, pre-trip inspection by U.S. Xpress employees.

Mark Irving testified that he observed one of the U.S. Xpress employees find a bolt

underneath the truck during an inspection approximately a week after the injury to Irving.

Freightliner objected to this testimony on the basis that it contradicted his deposition

testimony that he did not know of anything wrong with the truck. The district court

instructed the jury to disregard Mark Irving’s testimony regarding the bolt found by the

U.S. Xpress employees. Irving argues that the district court’s decision not to permit this

evidence to go to the jury was an abuse of discretion for which the jury verdict must be

reversed.

      Irving’s counsel claimed to have learned of the evidence only a day before trial and

therefore argues that disclosing it two days earlier than when it was disclosed would have

made no difference. Freightliner argues that permitting this testimony would have

ambushed it. The district court explained that it refused to permit this evidence because

plaintiff’s counsel failed to disclose it to opposing counsel and a continuance was not

practicable. Furthermore, in the Order Governing Proceedings, the parties were required

specifically to disclose “a fair summary of the substance of the information known” by

those people with relevant information about the case. On appeal, we decline to hold that

this exclusion was an abuse of discretion requiring reversal of the jury’s verdict. See

Brennan’s, Inc. v. Dickie Brennan & Co., 376 F.3d 356, 375 (5th Cir. 2004).


                                            5
C.     Gerald Rosenbluth’s testimony

       Irving’s third point of error is that the district court abused its discretion in limiting

the testimony of Irving’s expert, Gerald Rosenbluth, relating to a washer being left out of

the assembly, thereby allowing the assembly to come loose. See Vogler v. Blackmore, 352

F.3d 150, 153–54 (5th Cir. 2003) (reviewing expert testimony exclusion under an abuse of

discretion standard). While Irving argues that Rosenbluth’s timely-submitted expert

report contained sufficient detail to allow testimony about the washer theory, the district

court disagreed. In reviewing the expert report, the passages cited by Irving do not

sufficiently indicate that this theory is being advanced. The district court’s decision to

exclude this evidence was not an abuse of discretion.

                                    IV. CONCLUSION

       The judgment of the district court is AFFIRMED.




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