                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                       April 7, 2003

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 01-60580


                          ELAINE MCAFEE; ET AL.,

                                                                Defendants,

                          ELAINE MCAFEE ET AL.,

                                                   Plaintiffs-Appellants,


                                    VERSUS


                MURRAY OHIO MANUFACTURING, INC. ET AL.,

                                                    Defendants-Appellees.




              Appeal from the United States District Court
                for the Northern District of Mississippi
                                (99-CV-19)


Before DeMOSS, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.*

      In this Mississippi product liability action, Elaine McAfee

and Michael McAfee sue Murray Ohio Manufacturing Company; Murray,

Inc.;   and    Wal-Mart   Stores,   Inc.     (collectively   “Murray”)      for


  *
   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opinion should not be published and is not precedent except under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.

                                      1
injuries Ms. McAfee suffered when the riding lawn mower she was

operating overturned, caught fire, and severely injured her.              A

jury found no liability on the part of the defendants.        The McAfees

appealed, claiming the presiding magistrate judge made several

erroneous evidentiary rulings, improperly instructed the jury, and

allowed discovery abuses.     We AFFIRM.

                                     I.

     Elaine and Michael McAfee purchased a riding lawnmower at a

Wal-Mart   store.     The   mower   was   manufactured   by   Murray   Ohio

Manufacturing Company.      The mower’s battery was located under the

seat at the rear of the mower.        The fuel tank was located at the

front of the mower.

     On May 21, 1996, while Ms. McAfee was mowing a slope of her

lawn, the mower overturned and caught fire.              Ms. McAfee was

severely burned and injured.        She spent several months in various

hospitals recovering. Eventually, however, her lower right leg had

to be amputated.      Mr. McAfee also suffered some injuries while

rescuing his wife.

     The parties dispute several facts related to the accident:

whether Ms. McAfee was mowing across or up and down the slope;

whether the incline of the slope was six to seven degrees, as the

McAfees contend, or twenty-five to twenty-eight degrees, as the

defendants contend; whether Ms. McAfee was in the process of

turning to the left or right; and whether the mower tipped to the

left or right.      It was undisputed that the mower instructions

                                      2
warned users to mow up and down slopes and to avoid slopes steeper

than fifteen degrees, and that neither Ms. McAfee nor Mr. McAfee

had read the instructions.

      The McAfees sought damages for their personal injuries based

on the theories of products liability and negligence.1           Under their

product liability theory, they claimed that the design of the mower

was   unreasonably   dangerous     and    defective   because    of   design,

crashworthiness,     and     inadequate     warnings.2      In   regard     to

crashworthiness,     they    argued   (1)    that   the   battery     was   not

adequately secured, (2) that gasoline was able to leak from the

fuel lines and the vent in the fuel tank cap, (3) such that when

the mower overturned the battery shifted, made contact with the

battery compartment, and created an electrical arc that ignited the

spilled gasoline, and (4) that the deck lever trapped Ms. McAfee’s

leg after the mower rolled over.            In regard to warnings, they

argued that Murray failed to alert Ms. McAfee either to the risk of

the mower’s turning over on a shallow slope or to the consequences

of such a turnover.         Under their negligence theory, the McAfees

  1
    Ms. McAfee’s insurance providers, Prudential Health Care Plan,
Inc., Blue Cross and Blue Shield of Mississippi, and the U.S.
Department of Health and Human Services, joined the lawsuit as
subrogee plaintiffs. They are not parties to the appeal.
  2
    In their complaint, the McAfees listed six bases supporting
their product liability theory: (1) the mower was unstable; (2) the
warnings failed to advise users of the risk and danger of that
instability; (3) the mower did not have a slope indicator; (4) the
instructions inadequately addressed the mower’s use on slopes;
(5) the mower was not crashworthy in the event of an overturn; and
(6) as otherwise adduced by the proof.

                                      3
asserted that Murray’s negligent design of the mower caused their

injuries. Finally, the McAfees sought punitive damages premised on

their assertion of the defendants’ gross negligence.

     Murray disclosed two experts, Raymond Elmy and David Sassaman.

Elmy is also the vice president of design/engineering at Murray.

     The   McAfees     disclosed       Lanny    Rhoades,    an    accident

reconstructionist, as their expert witness. His written report set

forth his opinion that the battery mounting system on the mower was

defectively designed and that, when the mower overturned, its

battery made contact with its metal compartment, causing a spark

that ignited a fire.    Rhoades based his opinion on his examination

of the physical evidence and the scene of the accident; on his

reconstruction of the accident, which he had recorded on videotape;

and on his survey of lawnmowers of approximately the same vintage

and model as the one involved in Ms. McAfee’s accident.

     Several months before trial, Murray moved the court to exclude

Rhoades’ testimony in whole or in part.        It argued that Rhoades was

not an expert in lawnmower design; that his opinions were based on

a faulty re-creation of the accident; and that any probative value

of his testimony was substantially outweighed by its prejudicial

effect.    In   particular,   Murray    challenged   what   it   said   were

significant     differences   between    the    reconstruction    and    the

accident: (1) the fuel lines on the exemplar mower (i.e., the mower

used in Rhoades’ reconstruction) leaked, whereas there was no

evidence of such leaks on the McAfee mower; (2) the battery on the

                                   4
exemplar mower moved freely in its compartment, whereas the battery

on the McAfee mower was anchored firmly in place the last time it

was serviced; (3) Rhoades allowed fuel to collect several minutes

before manually igniting it, whereas Ms. McAfee said the fire

started immediately after the mower turned over; and (4) the

exemplar mower’s fuel tank was three-quarters full, whereas the

evidence indicated that the McAfee mower was likely almost out of

gas at the time of the accident.          The McAfees’ response to the

motion to exclude did not substantively address Murray’s contention

that the reconstruction was not true to the facts of the accident.

Rather, it enumerated Rhoades’ professional credentials; explained

Rhoades’ examination of the physical evidence and the accident

scene; and attacked Murray’s expert, Elmy.          Nonetheless, the trial

court denied Murray’s motion on the briefs without hearing oral

arguments or additional evidence, concluding that the differences

between the reconstruction and the accident could be brought out

through examination.3

      In a separate pretrial motion, Murray moved the court to

exclude    testimony   about   Rhoades’   field     survey   of   lawnmowers.

Rhoades surveyed various lawnmowers found in junkyards to check for

evidence    of   arcing   within   the    battery    compartment,     battery


  3
    The court also found that Rhoades was qualified “by virtue of
his knowledge, education, and training”; that Murray had failed to
show that his theories had not been tested or were otherwise
unreliable; and that neither his testimony nor the videotape of the
accident reconstruction was overly prejudicial.

                                     5
restraint system failure, fuel-line degradation, and alternative

design feasibility. The court ruled that Rhoades could not use the

survey to prove his arcing theory because there was no evidence

that the mowers surveyed were substantially similar to the McAfees’

mower.    It allowed the survey to be used to show the availability

of other designs, however.     In denying the McAfees’ motion for

reconsideration, the court further explained the basis for its

ruling: “Rhoades provided no evidence regarding the junkyard mowers

concerning their maintenance history, whether they had ever been

modified, or when and why they had been abandoned.   Indeed, not all

the mowers examined were manufactured by Murray.”

     On the third day of trial, during the McAfees’ case, the court

reversed its pretrial ruling and prohibited Rhoades from testifying

in any fashion about his reconstruction of the accident.    It also

excluded the videotape of the reconstruction. The transcript shows

that the court based its revised ruling on the sworn testimony it

had heard during the trial.      The court still allowed Rhoades to

testify and to offer his opinions, based on his examination of the

physical evidence, that the mower had rolled to the right, that the

deck lever had trapped Ms. McAfee, and that the fire was made

possible by the design of the fuel system and the battery restraint

system.   Rhoades testified at length, beginning one afternoon and

finishing the following afternoon.      His testimony takes up 246

pages of the trial transcript.

     After the McAfees rested, Murray moved for judgment as a

                                  6
matter of law.          The court granted the motion as to the McAfees’

inadequate warning theory and their request for punitive damages.4

It denied the motion as to the McAfees’ crashworthiness theory and

their negligence theory.

       Murray called only one witness, Elmy.                  After Murray rested,

the    McAfees    attempted          to   call    Jimmy   Dixon   to    rebut   Elmy’s

contention that Murray had no knowledge of an arcing problem in its

lawnmowers.      Dixon, who is a lawnmower repairman specializing in

Murray mowers, was not present in the courtroom at the time.                         The

court prevented the McAfees from calling Dixon, stating that he was

not a proper rebuttal witness and had not been identified as a

witness on the final pretrial order.                The McAfees then attempted to

call    Sassaman       to    rebut    Elmy’s      testimony   that     the   mower   had

overturned to the left.                   The court sustained the defendants’

objection, concluding Sassaman was not a proper rebuttal witness.

The parties then rested.

       The jury deliberated for about eight hours before sending the

court a message stating, “If we find that it was not Murray’s fault

that the mower turned over, do we deliberate further?”                       The court

told the jurors to reread the instructions given.                      Near the end of

the    second    day    of    deliberations,        the   jury    indicated     it   was


  4
    The court also granted the motion as to any theory about the
mower’s stability or instability. In response to Murray’s motion
for judgment as a matter of law, the McAfees’s counsel stated that
the issue of stability was inherent in their other theories but did
not constitute “an independent ground of [design] defect.”

                                              7
deadlocked.     The judge gave an Allen-type supplemental charge.

Thirty minutes later, the jury returned a verdict finding no

liability on the part the defendants.

      The court ordered that judgment be entered in favor of the

defendants.    After the judge denied their motion for a new trial,

the McAfees appealed.

                                    II.

      The McAfees challenge six evidentiary rulings.              These we

review   for   abuse   of   discretion.5    “We   ‘will   not   disturb   an

evidentiary ruling, albeit an erroneous one, unless it affects a

substantial right of the complaining party.’”6

                                    A.

      The McAfees contend that the magistrate judge improperly

limited the scope of their expert’s testimony in media res, after

qualifying him in a pretrial order.        Minutes before Rhoades was to

have taken the stand, the court reversed its earlier ruling and

excluded the videotape of the reconstruction; the exemplar mower,

which the McAfees planned to bring into the courtroom; and any

testimony about the reconstruction.        The court concluded that the

reconstruction altered the facts of the accident and relied on

speculation. The McAfees assert that the change of ruling not only


  5
    Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1329 (5th Cir.
1996).
  6
    Id. (quoting Polythane Sys., Inc. v. Marina Ventures Int’l,
Ltd., 993 F.2d 1201, 1208 (5th Cir. 1993)).

                                     8
was unjustified but also introduced court-induced prejudice.                         We

reject both assertions.

          The McAfees first contend that the court’s mid-stream revision

of       its    previous   evidentiary      ruling      was   not   justified   by   the

evidence before it.             We faced a similar situation in Guillory v.

Domtar Industries, Inc., a products liability case involving a

forklift accident.             In that case, on the sixth day of trial, the

district court reversed its prior decision and disallowed certain

testimony by the defendants’ accident reconstruction expert.7                        The

court          had   initially    refused        to    exclude      models,   exhibits,

photographs, and a videotape prepared by the expert based on his

reconstruction, instead instructing the plaintiff to challenge the

reliability of the evidence through cross-examination.                          At the

time, the court informed the parties that it would revisit the

issue.         After hearing some of the expert’s testimony at trial, the

court          limited   the   scope   of   his       testimony     and   excluded   the

videotape. The court explained that the expert’s conclusions “were

not sufficiently grounded in scientific methodology or the facts as

presented in the testimony of other witnesses,” and that the

forklift model depicted in the reconstruction videotape “was not

sufficiently similar to the forklift which caused the accident.”8

We found no error, concluding that the court “properly excluded


     7
         Id. at 1331-32.
     8
         Id. at 1330.

                                             9
[the expert’s] testimony, which was not based upon the facts in the

record but on altered facts and speculation designed to bolster

[the defendant’s] position.”9     Indeed, we stated that the court

would have abused its discretion if it had not reconsidered its

previous decision in the light of later-developed evidence that

demonstrated that the decision was erroneous.10

       As in Guillory, the trial court in this case had a duty to

evaluate the relevance and reliability of all expert testimony

before allowing its presentation to the jury.      Under the Federal

Rules of Evidence, expert testimony may be admitted if “(1) [it] is

based upon sufficient facts or data, (2) [it] is the product of

reliable principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of the case.”11

It is the duty of the trial court, acting as the gatekeeper of

evidence under Rule 702, to “ensure that any and all scientific

testimony . . . is not only relevant, but reliable.”12           This

gatekeeping rule applies to all expert testimony.13 In carrying out

its duty, the court must look to the particular circumstances of




  9
       Id. at 1331.
  10
     Id. at 1332 (citing Xerox Corp. v. Genmoora Corp., 888 F.2d
345 (5th Cir. 1989)).
  11
       Fed. R. Evid. 702.
  12
       Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
  13
       Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

                                  10
the case to determine “how to test an expert’s reliability.”14               In

this respect, “the law grants the trial judge broad latitude.”15

       We conclude that the trial court’s revised ruling comported

with its duties under Rule 702.               As the court explained, the

reconstruction       altered    the   facts    of   the    accident   in   four

significant respects.          The exemplar mower had leaks in its fuel

lines, although there was no evidence that the McAfees’ mower had

such leaks.     Rhoades jiggled the exemplar battery, even though

there was no evidence that the McAfees’ battery could move about in

its compartment. He allowed fuel to accumulate for several minutes

before igniting the fire, whereas Ms. McAfee testified that the

fire started instantaneously. And he manually lit the fuel because

he was unable to start it with a spark.                   These altered facts

justified the court’s ruling on the merits.           Indeed, the fact that

Rhoades manually started the fire is particularly significant,

given that the most fundamental premise of his theory of the

accident was that an electrical arc sparked the fire.

       Furthermore, the record shows that the court changed its

ruling only after hearing sworn testimony that contradicted the

factual assumptions underlying Rhoades’ reconstruction.               The trial

transcript indicates that it based its revised ruling on the

testimony that had been developed at the trial:


  14
       Id. at 150, 152.
  15
       Id. at 153.

                                       11
       At the time I ruled on the motion I, of course,
       considered the defendants’ arguments that the reenactment
       was not substantially similar to what happened in this
       case. But at that time I also did not have in front of
       me the sworn testimony that I have now.

Thus, we must reject the McAfees’ suggestion that the court had

nothing new before it when it changed its ruling.

       The McAfees also contend that the court’s last-minute reversal

introduced court-induced prejudice.      In Prudhomme v. Tenneco Oil

Co., we recognized that under certain circumstances the actions of

a trial court can be so prejudicial to a party as to merit

reversal.    We concluded in Prudhomme, for example, that the trial

court unfairly prejudiced the defendant when, on the morning of

trial, it allowed the plaintiffs to amend their complaint to allege

a strict liability claim—even though it had three months earlier

dismissed the motion to amend. There the court’s order had induced

the defendant to refrain from preparing a defense to a strict

liability cause of action, such that the timing of its new ruling

caused prejudice worthy of reversal.16

       Unlike Prudhomme, the court’s change of ruling in this case

was not so prejudicial as to merit reversal.    The trial transcript

shows that the court allowed Rhoades to testify at great length.

He was able to explain that his examination of the physical

evidence supported his opinions about how the accident happened,

and he was allowed to articulate the critical aspects of his arcing


  16
       955 F.2d 390 (5th Cir. 1992).

                                  12
theory.    Thus, the value of Rhoades’s testimony to the McAfees’

case was not irreparably diminished by the limitations imposed by

the court.

       Finally,   we   note   that   the   McAfees   did   not   ask   for   a

continuance after the court issued its revised ruling and do not

now argue that the court should have ordered a continuance sua

sponte.    At best, we could review (on our own initiative) the

court’s decision not to continue the trial for plain error.17            The

facts do not support such a finding.          As we concluded above, the

court’s ruling limited the scope of Rhoades’ testimony but neither

excluded it nor eviscerated it.        While counsel stated at the time

that the court’s ruling had “a particular implication” for the

plaintiffs’ case, the transcript shows that Rhoades nonetheless

presented his opinion over the course of an entire afternoon and

morning and part of a second afternoon.        We cannot say, therefore,

that the trial court committed error, let alone error that cast

doubt on the fairness of the proceeding or that seriously affected

the McAfees’ substantial rights.18


  17
     See United States v. Kizzee, 150 F.3d 497, 500-501 (5th Cir.
2000) (explaining that when a party does not move for a continuance
in the trial court, “his assertion [of error] is reversed for plain
error only”).
  18
     In a footnote to their principal brief and again at oral
argument, the McAfees also accused the trial court of informing
Murray of its revised ruling outside of their presence. By quoting
a lawyer’s words out of context, the McAfees have rested on too
slim a reed. Our reading of the transcript in no way supports the
McAfees’ accusation.

                                     13
                                           B.

       Second,     the   McAfees    contend       that    the    court   improperly

prevented them from using Rhoades’ survey to prove that other

Murray    mowers    exhibited      signs    of    arcing;       to   impeach    Elmy’s

testimony that Murray had no prior knowledge of arcing; and to show

Murray’s awareness of a dangerous condition.                 We disagree.

       Rule 703, as we explained previously, requires the trial court

“(1) to ensure that an expert’s testimony rests upon a reliable

foundation, (2) to ensure that all scientific testimony or evidence

is reliable and relevant, and (3) to exclude scientific evidence

‘if its probative value is substantially outweighed by the danger

of unfair prejudice.”19            The survey showed that other Murray

lawnmowers of the same vintage and/or model exhibited signs of

arcing.      To    the   extent     that    its    findings      concerned      Murray

lawnmowers of the same vintage but not the same or a substantially

similar model, the survey was irrelevant.20               To the extent that its

findings concerned Murray mowers of the same or a substantially

similar model, however, the survey was possibly relevant.

       The   McAfees      contend     that       the     surveyed      mowers     were

substantially similar to the accident mower because all used the


  19
     Guillory, 95 F.3d at 1330-31 (citing Marcel v. Pladic Oil Co.,
11 F.3d 563, 567 (5th Cir. 1994)); see also Daubert, 509 U.S. at
589.
  20
     There is no evidence suggesting that the battery restraint
system on those mowers was identical to that used on the McAfees’
mower.

                                           14
same type of battery restraint system and had similarly designed

grills, headlights, steering wheels, seat mechanisms, deck levers,

decks, and fenders.    The one relevant feature in this list is the

battery restraint system.   But considering the integrated accident

theory advanced by Rhoades, this one characteristic cannot fairly

be said to make a group of lawnmowers substantially similar.

Moreover, the trial court determined that the McAfees could not

account   for   the   maintenance,        modification,   and   abandonment

histories of the surveyed lawnmowers—factors that the court deemed

to be critical to ascertaining the relevance and reliability of the

survey.   According the trial court the deference it is due under

the abuse standard, we find no error here.        Indeed, because Rhoades

was still allowed to explain his arcing theory to the jury, albeit

without referring to his survey, we cannot say that the McAfees’

substantial rights would have been affected even if the trial court

had erred in excluding the survey.

     The McAfees also assert that the survey should have been

admitted to impeach the testimony of Murray’s expert, Elmy, and to

prove Murray’s awareness of a dangerous condition.              The survey

evidence would not have contradicted Elmy’s testimony or shown that

Murray was aware of any arcing problem.         Elmy testified that he had

no experience with accidents involving battery defects in Murray

mowers.   Even assuming the survey showed evidence of a history of

arcing, it would not prove that Murray was aware of that problem or

that Elmy had testified falsely.           The one case that the McAfees

                                     15
cite does not support their argument.                In Shields v. Sturm, Ruger

& Company, we stated that reports of product-related accidents

submitted to the manufacturer could be introduced to show awareness

of a product defect on its part, even if the accidents were not

substantially similar to the one at issue.21                There is no evidence

in this case, however, that Murray had any awareness of the history

of the mowers surveyed by Rhoades, let alone that any reports of

arcing problems in those or other mowers had been submitted to it.

In short, the survey showed nothing about Murray’s knowledge.

                                            C.

           Third, the McAfees contend that the court erroneously allowed

Elmy to offer a previously undisclosed opinion that the mower

overturned to the left—not to the right, as Elmy had initially

stated. The record belies this representation of Elmy’s testimony.

Elmy stated at his first deposition that he assumed that the mower

had overturned to the right. At his second deposition, however, he

stated that “It’s more likely it turned to the left than to the

right, based on the facts as I understand them.”                   Furthermore, the

transcript of the second deposition shows that the McAfees’ counsel

acknowledged receiving notice of the updated basis of Elmy’s

opinion: “[Y]ou have given me now what I take to be a thorough set

of        facts   that   lead   you   to   believe   it   turned    to   the   left.”




     21
           864 F.2d 379, 381 (5th Cir. 1989).

                                            16
Accordingly, there was no abuse of discretion here.22

                                          D.

           Fourth,    the   McAfees   contend    that   the   court   improperly

prevented them from calling Sassaman, who was listed by Murray as

a “will call” witness in the final pretrial order,23 to rebut Elmy’s

opinion that the mower rolled over to the left.               Rebuttal evidence

is        generally   allowed   to    counter   new   facts   presented   in   the

defendant’s presentation of proof or to rebut evidence unavailable

earlier through no fault of the plaintiff.24             In this context, “new




     22
     The McAfees changed tacks in their reply brief, arguing that
Elmy’s testimony was unreliably speculative. We will not consider
an argument raised for the first time in a reply brief because it
deprives the appellee of the opportunity to respond to it . See
Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir.
1998); Knighten v. Commissioner, 702 F.2d 59, 60 n.1 (5th Cir.
1983).
     23
     The McAfees accuse Murray of trickery with regard to Sassaman.
They suggest that Murray improperly released him without notice in
order to prevent them from examining him.       This accusation is
baseless. Murray was under no obligation to call Sassaman, despite
its designation of him as a “will call” witness.         The final
pretrial order states: “The listing of a WILL CALL witness herein
constitutes a representation, upon which opposing counsel may rely,
that the witness will be present at trial in the absence of
reasonable written notice to opposing counsel to the contrary.”
The court explained, however, that “all that means is that they
have to have him here ready at the courthouse. That doesn’t mean
that they have to call him.” The facts show that Murray failed to
accord the McAfees’ counsel professional courtesy; however, they do
not show trickery.
     24
     Tramonte v. Fibreboard Corp., 947 F.2d 762, 764 (5th Cir.
1991); see also Morgan v. Commercial Union Assurance Co., 606 F.2d
554, 555 (5th Cir. 1979) (“Rebuttal is a term of art, denoting
evidence introduced by a Plaintiff to meet new facts brought out in
his opponent's case in chief.”).

                                          17
facts” are those matters that are new to the trier of fact.25            This

follows from the rule that “rebuttal evidence is designed to meet

facts not raised before the defendant’s case in chief, not facts

which could have been raised.”26           The purpose of this rule is to

allow the plaintiff to present whatever evidence it deems necessary

to making its prima facie case without requiring it to anticipate

and negate the defendant’s case in its own case in chief.27            Within

these parameters, “[t]he scope of rebuttal testimony is ordinarily

a matter to be left to the sound discretion of the trial judge.”28

       The issue we face is not whether the McAfees had a right or an

opportunity      to   overcome   Elmy’s    testimony   but   whether   Elmy’s

testimony about the direction of the roll raised a new matter.29

The record shows that it did not.          Rhoades testified at length in

the McAfees’ case in chief about the topic, carefully explaining

his opinion that the mower had rolled to the right.              It was the

McAfees, therefore, who first placed the matter before the jury.

Murray obviously used Elmy to respond to Rhoades’ testimony about



  25
     Rodriquez v. Olin Corp., 780 F.2d 491, 496 (5th Cir. 1986)
(“[E]vidence is new if, under all the facts and circumstances, the
court concludes that the evidence was not fairly and adequately
presented to the trier of fact before the defendant's case in
chief.”).
  26
       Id.
  27
       See id.
  28
       Tramonte, 947 F.2d at 764.
  29
       See Rodriquez, 780 F.2d at 495.

                                      18
the direction of the roll, among other matters.          In any event, on

cross-examination, the McAfees had the opportunity to question Elmy

about the evolution of his opinion.         In addition, because Elmy’s

opinion was known to the McAfees well before the trial, Sassaman’s

testimony was not required to rebut any previously unavailable

fact.     In short, Sassaman was not a proper rebuttal witness.

Accordingly, the trial court did not abuse its discretion in

excluding his testimony.30

                                    E.

       Fifth,   the   McAfees   contend   that    the   court   erroneously

prevented them from calling Dixon to counter Elmy’s testimony that

Murray had no prior knowledge of any arcing problem with the

lawnmower model owned by the McAfees.             As we explained in the

previous    section,    a   court   has   broad    discretion    over   the

presentation of rebuttal evidence.        This discretion is not without

bounds and must be tempered “where the probative value of proffered

evidence is potentially high and where such evidence, though

admissible on the case in chief, was unnecessary for the plaintiff

to establish in its prima facie case.”31


  30
     Because we find that Sassaman was not a proper rebuttal
witness, we need not consider the merits of the McAfees’ further
assertion that they should have been allowed to call him as an
adverse witness even though he had been retained by Murray as an
expert.
  31
     Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457-58 (2d Cir.
1975) (internal citations omitted), cited in Rodriquez, 780 F.2d at
496.

                                    19
       Dixon apparently would have testified that Murray was aware of

arcing    problems.         Such    testimony   would    certainly   have     been

probative.       But it also was a necessary element of the McAfees’

prima    facie    case   under      Mississippi      product   liability    law.32

Accordingly, Dixon would not have been a proper rebuttal witness,

although he (or someone else) would have been a necessary and

proper witness in the McAfees’ case in chief.                  Furthermore, the

McAfees failed to disclose Dixon as a possible witness in the

pretrial order.33 For these reasons, and because Dixon was not even

available to testify when the McAfees attempted to call him, the

court did not abuse its discretion in excluding his testimony.

                                          F.

       Finally, the McAfees assert that the judge “subtly over the

course of the trial” and erroneously limited evidence of feasible

alternative designs to designs available as of 1989, the year the

mower was manufactured.             This argument is meritless, not least

because   the     McAfees    fail    to   identify    any   particular     adverse


  32
     Miss. Code Ann. § 11-1-63 (2002) (“In any action alleging that
a product is defective because of its design . . . , the
manufacturer or product seller shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the
time the product left the control of the manufacturer or seller:
(i) [it] knew, or in light of reasonably available knowledge or in
the exercise of reasonable care should have known, about the danger
that caused the damage for which recovery is sought. . . .”).
  33
     See Lirette v. Popich Bros. Water Transp., Inc., 660 F.2d 142,
144-45 (5th Cir. 1981) (“The trial judge is granted broad
discretion in modifying pre-trial orders to admit witnesses not
listed in the order.”).

                                          20
evidentiary ruling for us to review.       In any event, contrary to the

McAfees’ argument, the record shows that the court explicitly ruled

in a pretrial order that evidence of any design or modification

available   through   the   year   of    the    accident,     1996,   would    be

admitted.

                                   III.

       The McAfees next contend that the trial court made two errors

in instructing the jury. First, they argue that the instruction on

design defect was erroneous.       Second, they argue that the court

gave an improper Allen charge.      We disagree on both accounts.

                                    A.

       The McAfees complain that the court’s charge relating to their

design   defect   claim   was   abstract       and   failed   to   specify    the

particular defects they alleged.         When a party fails to object to

the jury instructions given, as here, we review for plain error.34

“Failure to object to the jury charge in the trial court precludes

review on appeal unless the error is so fundamental as to result in

a miscarriage of justice.”35        When a party complains about the

court’s failure to give a proposed instruction, it

       must show as a threshold matter that the proposed
       instruction correctly stated the law. If a party makes
       this threshold showing, [it] must then demonstrate that

  34
     Russell v. Plano Bank & Turst, 130 F.3d 715, 721 (5th Cir.
1997); Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710
(5th Cir. 1997).
  35
     Barber, 130 F.3d at 710 (quoting Farrar v. Cain, 756 F.2d
1148, 1150 (5th Cir. 1985)).

                                    21
       the actual charge as a whole creates substantial and
       ineradicable doubt whether the jury has been properly
       guided in its deliberations. But if the charge correctly
       states the substance of the law, we will not reverse.36

       Because   the   McAfees   cannot   make   their   required   initial

showing, we find no error.         The McAfees’ proposed instructions

merely presented their theory of the case—not the applicable law.

Even if they had made the threshold showing, however, they could

not show error, for the court’s instruction correctly states the

substance of Mississippi product liability law.37          We cannot say,

therefore, that we harbor a “substantial and ineradicable doubt”

that the jury was properly guided by the court’s instructions.38

                                     B.

       We review the trial court’s decision to give a supplemental

Allen-type charge in this civil case for abuse of discretion.39           A

court has wide discretion to determine whether an Allen charge will

coerce the jury into returning a verdict it would not otherwise



  36
     Julian v. City of Houston, Tex., 314 F.3d 721, 727 (5th Cir.
2002) (internal quotations and citations omitted).
  37
     Miss. Code Ann. § 11-1-63; Daniels v. GNB, Inc., 629 So.2d
595, 600 (Miss. 1993) (citing Restatement (Second) of Torts, § 402A
(1965)).
  38
     The McAfees rely on the jury’s question to the court—“If we
find that it was not Murray’s fault that the mower turned over, do
we deliberate further?”—in their argument that the instruction was
erroneous. While the question reveals some confusion on the part
of the jury, it does not alone establish that the instruction was
erroneous.
  39
     North Tex. Producers Ass’n v. Metzger Dairies, Inc., 348 F.2d
189, 193 (5th Cir. 1965); see also Allen v. United States, 164 U.S.
492 (1896).
                                 22
reach.40    The McAfees assert that the charge given was coercive

under the circumstances. In particular, they note that only thirty

minutes elapsed between the charge and the verdict.               Considering

that the charge was given towards the end of the second day of

deliberations, we do not find the timing of the charge inherently

coercive.     Furthermore, considering that we have approved of Allen

charges given within seventeen minutes of the verdict, we do not

find the rapidity of the verdict after the charge inherently

indicative of coercion.41      Accordingly, we find no abuse.42

                                       IV.

       Finally, the McAfees contend that the trial court allowed and

even “aided” and “endorsed” various discovery abuses on the part of

Murray.     Although their brief chiefly complains about Murray’s

behavior     during   discovery,   the       McAfees   implicitly     (if    only

peripherally) challenge four discovery orders.               But they make no

effort to identify or analyze the court’s errors.                Rather, they

merely     identify   four   adverse    orders   in    the   course   of    their

narrative about the discovery phase of the lawsuit.             Consequently,

we must consider their claims of error related to the trial court’s

  40
       United States v. Gordon, 780 F.2d 1165, 1177 (5th Cir. 1986).
  41
     See Bryan v. Wainwright, 511 F.2d 644, 645 (5th Cir. 1975);
see also Lowenfeld v. Phelps, 484 U.S. 231, 240 (1988) (finding a
supplemental charge given within thirty minutes was not coercive);
Montoya v. Scott, 65 F.3d 405, 411 (5th Cir. 1995) (finding that a
charge within forty minutes of verdict was not coercive).
  42
     We reject the McAfees’ additional indication of coercion—that
the instruction was generally confusing—based on our previous
conclusion that the jury instruction was not erroneous.
                                23
discovery orders to be abandoned for being inadequately briefed.43

       Despite our holding grounded in procedure, we have examined

the four adverse orders and are satisfied that they present no

reversible error on the merits.         Each of the orders concerned a

request made after the close of discovery on January 21, 2000.

Accordingly, they would be reviewed for abuse of discretion.44

       The first order, issued on February 8, 2000, prohibited the

McAfees from continuing their deposition of Elmy for a fourth day.

The court concluded that, in the light of its order allowing

additional (out-of-time) depositions of other Murray personnel, it

was    “unnecessary    and   repetitious     for   plaintiffs    to   continue

deposing Elmy.”      It noted that “[p]laintiffs have repeatedly asked

the same questions of Elmy which he has been unable to answer.”

Given the court’s assessment of the futility of the McAfees’

request, and considering that discovery had already closed, we

cannot say that the court’s order was an abuse.

       The second and third orders, issued on March 15, 2000 and

September 21, 2000, denied the McAfees’ motion to compel filed on

February 9, 2000, and their nearly identical supplemental motion to

compel filed on March 1, 2000.       The motions complained that Murray

had    failed   to    adequately   respond    to   requests     for   document


  43
     L&A Contracting Co. v. Southern Concrete Servs., Inc., 17 F.3d
106, 113 (5th Cir. 1994) (“[W]e consider the challenge abandoned
for being inadequately briefed.”).
  44
     Gulf Guar. Life Ins. Co. v. Connecticut General Life Ins. Co.,
304 F.3d 476, 488 (5th Cir. 2002).
                                 24
production dated August 3, 1999, and December 20, 1999.                  On appeal,

the McAfees fail to identify any particular aspect of these orders

that was in error.      In any event, our review has revealed no abuse

in either order.

     With    respect   to   the   August     3    requests,    the   trial    court

concluded that the McAfees had waited too long to seek an order to

compel production.      This decision was not an abuse of the court’s

discretion to reopen discovery or its authority under its local

rules   to   control    discovery.      The       McAfees     received     Murray’s

responses and objections to the August 3 requests on September 3,

1999.   Thus, they waited over five months to file their motions to

compel. More significantly, they filed the motions after discovery

had closed.

     The remainder of the motions concerned the requests issued on

December 20, 1999.     The trial court granted the motions in part and

denied them in part.        With regard to the portions it denied, the

court first explained that it could not compel the disclosure of

certain documents that Murray denied existed.               Because the McAfees

failed to prove that the requested documents did exist, the court

did not abuse its discretion.         Finally, the court explained that

the McAfees’ remaining requests were overbroad.                      Because the

McAfees altogether fail to explain how their requests were not

overbroad, we find no abuse.

     The fourth order, issued on September 22, 2000, granted

Murray’s     motion   for   a   protective       order   relieving    it    of   any

                                      25
obligation to respond to the multiple discovery requests the

McAfees served on February 7, 2000.    The court explained that the

requests were made after the close of discovery; that the McAfees

had long known that Murray’s responses to their requests may have

been inadequate and therefore could not show cause for their

untimely requests; and that the McAfees’ fifty-two requests far

exceeded the court-ordered limit of thirty discovery requests per

side.    Again, we find no abuse here.45

                                 V.

       For the foregoing reasons, we AFFIRM.



AFFIRMED.




  45
     Lastly, we reject the McAfees’ claim of cumulative error.
Because there were no individual errors, we find no cumulative
error.
                              26
