     Case: 11-30904     Document: 00511978790         Page: 1     Date Filed: 09/07/2012




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

                                                                            FILED
                                                                        September 7, 2012

                                       No. 11-30904                        Lyle W. Cayce
                                                                                Clerk

MICHAEL D. WILLIAMS,

                                                  Plaintiff-Appellant
v.

C&E BOAT RENTALS, L.L.C.,

                                                  Defendant-Appellee



                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:09-CV-5464


Before DeMOSS, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Michael D. Williams brought suit against Defendant-
Appellant C&E Boat Rentals, L.L.C. (“C&E”) under the Jones Act and General
Maritime Law for injuries he allegedly suffered in August 2007 while working
for C&E. A jury found in favor of C&E. Williams moved for a new trial
asserting, inter alia, that counsel for C&E made inappropriate remarks during
closing arguments. The district court denied the motion. Williams now appeals



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30904

the denial and also asserts that C&E’s conduct throughout the trial irreparably
prejudiced him and deprived him of a fair trial. We AFFIRM.
                              I. BACKGROUND
      In 2007, Williams was working as a deckhand aboard the vessel M/V
Russell A. Cheramie, which C&E owned. He was assigned to clean out the
vessel’s lube oil tanks. Williams asserts that the fumes in the tank caused a host
of physical and neurological injuries.
      In September 2007, Williams hired Newton B. Schwartz, Sr. (“Schwartz”)
to represent him in a lawsuit against C&E. Williams filed suit against C&E but
voluntarily dismissed the case the next day. At the same time, he fired Schwartz
and briefly returned to work for C&E.
      In 2009, after losing his job with C&E and holding several other jobs,
Williams re-hired Schwartz and re-filed his suit alleging Jones Act claims for
negligence and unseaworthiness. New Orleans-based counsel Jack W. Harang
represented Williams at trial, but Schwartz’s involvement in the case was a topic
about which C&E’s counsel repeatedly questioned Williams and his witnesses
on cross-examination.
      A jury found in favor of C&E, and the trial court denied Williams’s Fed.
R. Civ. P. 59 motion for a new trial. Williams now appeals.
                               II. DISCUSSION
      A.      Standard of Review
      We review a district court’s denial of a motion for a new trial for abuse of
discretion.   Alaniz v. Zamora-Quezada, 591 F.3d 761, 770 (5th Cir. 2009)
(citation omitted). The review, however, is “particularly limited,” and “we must
affirm the verdict unless the evidence—viewed in the light most favorable to the
jury’s verdict—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. (citation and internal quotation marks omitted).

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       B.         Improper Comments by Defendant’s Counsel
       Williams objects to the following statements made during C&E’s closing
argument:1
                  1. “We believe the credible evidence before Newton Schwartz
       got involved in this case and started turning some witnesses around
       . . . .”
                  2. “When he got to Morgan City, he ran into an investigator
       for Mr. Schwartz who convinced him that he had a big lawsuit here
       and needed to file a suit. So Mr. Schwartz files a suit, sends a copy
       to Michael Williams. Michael Williams reads it and says, This is
       ridiculous the claims the man is making. And you got, his words,
       you got to be kidding what he had in that petition.”
                  3. “Now, he then during this period of time in May gets back
       in touch with Mr. Schwartz kind of like Oz, the man behind the
       curtain pulling all the strings showing where things are going to
       go.”
                  4. “And Mr. Schwartz, he has got, he is trying to manufacture
       a case here.”
                  5.   “[Schwartz] sends this man out to California from
       Oklahoma to California to see an internal medicine doctor with
       respect to his case. And he sends him out to California to go see a
       dentist.        Now, we all know everyone needs a dentist out in
       California.

       1
        Williams also asserts that he was denied a fair trial by the totality of C&E’s conduct
throughout the trial. Williams did not provide any references to the record or otherwise
develop this argument in his briefs. An appellant waives an issue when he “does not provide
contentions, facts, legal citations, arguments, or analysis . . . .” Procter & Gamble Co. v.
Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004). “Failure adequately to brief an issue on
appeal constitutes waiver of that argument.” Id.; see also Fed. R. App. P. 28(a)(9)(A). Because
Williams failed to adequately brief this issue on appeal, it is waived.

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            “So he goes out to California. And is he treated by Dr.
      Dahlgren? No, all he is is evaluated for this litigation. You heard
      the man complain: He didn’t treat me.         And he went to Dr.
      Grossman, and he was evaluated for this litigation. And was he
      treated by Dr. Grossman? No.
            “And then Schwartz a couple months later, about a year later
      I think, sends him to a neuro-psychologist. Well, you think that it
      might be in Oklahoma where he is or maybe send him back out to
      California?     But, no, he sends him to a doctor in Lafayette,
      Louisiana. Why? These are all people Schwartz uses. He wants a
      special man to be out there to get to try and prove a case. He wants
      a special man on toxic torts. He wants a special man on neuro-
      psychology. He wants a special man on dentistry to show that all
      these things work together, that they are a result of this supposed
      toxic event.”
            6. “And also remember what Dr. Swift said when he tried to
      examine this man, it was basically a normal examination, and the
      pulmonary function test . . . that Mr. Harang has been talking
      about, well, Dr. Swift tried to give it to Mr. Williams, and what did
      he say? He didn’t participate. He wouldn’t blow in the tube. He
      didn’t give his effort. And I wonder why that is. Is it any different
      from what we saw?”


      1.    Statements 1 and 6
      Williams objected to Statements 1 and 6 at trial, so the proper standard
of review is abuse of discretion. See Learmonth v. Sears, Roebuck & Co., 631
F.3d 724, 731-32 (5th Cir. 2011).



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      “The trial judge is in a far better position than an appellate court to
evaluate the prejudice flowing from counsel’s improper comments during trial
and to determine the most effective response to ensure a fair trial.” Mills v.
Beech Aircraft Corp., 886 F.2d 758, 765 (5th Cir. 1989) (citations omitted). When
an argument is challenged for impropriety, as is the case here, “we review the
entire argument . . . within the context of the court’s rulings on objections, the
jury charge, and any corrective measures applied by the trial court.” Learmonth,
631 F.3d at 731 (citation and internal quotation marks omitted). “Alleged
improprieties may well be cured by an admonition or charge to the jury.” Id.
(citation and internal quotation omitted).
      Whether the closing argument statements at issue were based on evidence
in the record is important to our inquiry. See Alaniz, 591 F.3d at 778. “It is a
particularly indefensible tactic to use closing arguments to bring before the jury
damaging facts not in evidence and never established.” Id. (citation and
internal quotation marks omitted).
      Although we do not applaud C&E counsel’s word choice in either
statement, we hold that the trial court did not abuse its discretion in denying
Williams’s motion for a new trial on these grounds.
      There is at least some evidence in the record that supports C&E counsel’s
characterization of Schwartz’s actions. For example, one of Williams’s witnesses
testified that after meeting with Williams and someone who worked for
Schwartz, the witness gave a deposition dramatically different from statements
he had previously made.
      Moreover, the trial court’s instructions to the jury on several occasions
clearly described how they were to view attorney statements. For example,
immediately prior to closing arguments, the trial court stated:
            You can disregard what lawyers say particularly if a
            lawyer says something or interprets the evidence


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            differently from your interpretation of the evidence. . .
            . If [a lawyer] make[s] a misstatement [about the
            evidence or the law], then you have to go by your
            interpretation of the evidence and your decision or
            credibility of the witnesses and exhibits admitted into
            the record.

      The jury charge includes similar language, as did the trial court’s response
in overruling Williams’s objection.
      We now turn to C&E counsel’s characterization of Williams in Statement
6. At trial, Williams objected to C&E counsel’s description of Williams’s actions
during the pulmonary function test, stating, “Your honor, that’s absolutely
contrary.” The trial court responded, “Again, it is argument, counsel. Move on.”
      The record shows that Dr. Swift, one of C&E’s witnesses, had examined
Williams prior to trial. At trial, Swift deemed the pulmonary function test that
Williams performed during the examination invalid because “[w]e couldn’t get
a reproducible test.    That could be due to lack of understanding, lack of
cooperation, could be a number of factors. We didn’t get a good test.”
      C&E counsel’s characterization that Williams would “not participate [or]
blow in the tube [or] give his effort” is not fully supported by the record.
However, in light of the trial court’s instructions to the jury discussed above, all
of the evidence presented at trial, and the deference we give to the trial court’s
actions at trial, we cannot say the trial court abused its discretion in denying
Williams’s motion for a new trial on the basis of these comments.
      2.    Statements 2 through 5
      Williams did not contemporaneously object to Statements 2 through 5, so
our review is for plain error. See Whitehead v. Food Max of Miss., Inc., 163 F.3d
265, 276 (5th Cir. 1998).
      “To demonstrate reversible plain error, the Appellant must show that (1)
there is error; (2) it is plain; and (3) it affected his substantial rights.” United

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                                  No. 11-30904

States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010) (citation and internal
quotation marks omitted).      “As a general rule, [a plain] error affects a
defendant’s substantial rights only if the error was prejudicial. . . . An error is
prejudicial if there is a reasonable probability that the result of the proceedings
would have been different but for the error.” Id. (citation and internal quotation
marks omitted).
      As noted above, we do not applaud all of counsel’s word choices. However,
counsel’s statements were sufficiently based on the record and more than
tangentially related to Williams’s claims.       See Alaniz, 591 F.3d at 779.
Specifically, Williams and his witnesses presented evidence that Williams and
one of his witnesses had changed their accounts multiple times, that Williams
had been upset with the first suit Schwartz filed, and that Schwartz had
arranged for Williams to visit out-of-state doctors for evaluation.
      Williams also argues C&E counsel’s arguments about “special” men in
Statement 5 was particularly prejudicial before a New Orleans jury because
there is a local television personality known as the “Special Man,” who helps
people with low or no credit obtain loans.            C&E disputes Williams’s
characterization of the televised “Special Man” as “disreputable[,] offensive[,
and] sleazy.”
      Williams provides no evidence to support his assertion that the jury
connected C&E counsel’s statements with the television “Special Man.” Nor does
he provide any case law with analogous fact patterns.          Because the trial
transcript provides no information about C&E counsel’s tone, inflection, or body
language when he made the comments, this is a prime illustration of why a New
Orleans-based “trial judge is in a far better position than an appellate court to
evaluate the prejudice flowing from counsel’s improper remarks . . . .” Mills, 886
F.2d at 765. “Special man” is a common-enough phrase that its mere use does
not demonstrate C&E counsel attempted to improperly prejudice the jury.

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                                  No. 11-30904

      In light of the evidence presented at trial and the trial court’s instructions
to the jury discussed above, we cannot say that “manifest injustice” has occurred.
See Alaniz, 591 F.3d at 779.
                               III. CONCLUSION
      For the above reasons, we AFFIRM the district court’s denial of Williams’s
motion for a new trial.




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