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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-30879                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 27, 2018
JASON HACKER,
                                                                         Lyle W. Cayce
              Plaintiff - Appellant                                           Clerk


v.

N. BURL CAIN, Warden, Louisiana State Penitentiary at Angola, in His
Official and Individual Capacities; LOUISIANA DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS; LOUISIANA STATE PENITENTIARY AT
ANGOLA; JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS, in His Official and Individual
Capacities,

              Defendants - Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:14-CV-63


Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Jason Hacker, an inmate in the Louisiana State Penitentiary,
sued the prison and various officials for failure to accommodate his disability.
A jury determined that Hacker did not suffer a disability as defined by 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30879
Americans with Disabilities Act, and the district court denied Hacker’s post-
trial motions. Hacker appeals. For the following reasons, we AFFIRM.
                                        I.
      Jason Hacker is incarcerated in the Louisiana State Penitentiary,
commonly known as Angola. On October 17, 2011, Hacker went to Angola’s eye
clinic complaining of blurred vision, sudden weight loss, and increased hunger.
After the visit, his symptoms did not improve, and he continued to complain of
“blurry vision.” Hacker was prescribed and received eyeglasses but still had
trouble seeing.
      On June 24, 2012, a doctor at Pennington Biomedical Research Center
at Louisiana State University (“LSU”) diagnosed Hacker with cataracts and
recommended that he receive cataract-removal surgery. Later that year, LSU
ophthalmologists performed a corneal topography to determine the quality of
Hacker’s vision. The results of this test are not clear from the record.
      Hacker did not receive cataract removal surgery until 2014. Between his
initial diagnosis and the surgery, Hacker contends that his vision continued to
decline. In addition to his generalized complaints that his vision was blurry, in
May 2013, Hacker began to complain that his cataracts were causing him
trouble seeing far away and that he had severe pain in his eyes when exposed
to sunlight. On several occasions, medical records indicate that Hacker was
“legally blind.” At one point, his vision was recorded as being as bad as 20/400
in his left eye, and he was unable to read the eye chart with his right eye. But
in March 2014, just four months before his cataract surgery, Hacker’s vision
was 20/60 in his right eye and 20/100 in the left—although his medical records
note that he “look[ed] ‘over his cataract’ [in his] right eye in order to see [the]
eye chart.”
      Hacker argues that despite his inability to see, the prison did not
accommodate his disability. In fact, Hacker was moved from working in the tag
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                                  No. 17-30879
plant to work in Angola’s fields in the spring of 2013—work he contends is too
dangerous to be performed by someone with limited vision. On one occasion,
Hacker made an emergency request for health care while working in the fields
because of his vision problems. Hacker testified that, while working in the
fields, he tore his pectoral muscle off his bone because he could not see a heavy
bale of hay that was being tossed toward him. Hacker and his fellow inmates
also testified that his poor eyesight impaired his ability to see, write, work, and
play music.
      After filing an unsuccessful request through Angola’s administrative
remedy procedure, Hacker filed suit in federal court. His amended complaint
asserted claims under the Eighth Amendment, Americans with Disabilities
Act (“ADA”), and Rehabilitation Act. Prior to trial, the district court entered
several orders in limine. As is relevant here, the district court denied Hacker’s
motion to exclude evidence regarding his disciplinary record as moot based on
defendants’ representation to the court that they would not introduce such
evidence. The district court ordered that defendants could not “offer evidence
or refer to the specific crimes for which [Hacker] was convicted or the conduct
which led to his conviction.” Finally, the district court also prohibited evidence
of medical treatment unrelated to Hacker’s cataracts, “except as it may bear
on the issues related to [Hacker’s] cataracts.”
      The jury returned a verdict for the defense, finding that Hacker was not
disabled under the ADA and defendants did not act with deliberate
indifference to Hacker’s medical needs in violation of the Eighth Amendment.
Having properly moved for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a) at the close of defendants’ case, Hacker renewed his
motion under Rule 50(b), or, in the alternative, moved for a new trial under
Rule 59. The court denied the motions, finding that reasonable jurors could


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                                  No. 17-30879
have found for defendants on all issues and a new trial was not necessary.
Hacker’s appeal is limited to his claim under the ADA.
                                        II.
       “We review de novo the district court’s denial of a motion for judgment
as a matter of law, applying the same standard as the district court.” Travelers
Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 481 (5th Cir.
2008). A court may grant a motion for judgment as a matter of law if “the court
finds that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on [an] issue.” Fed. R. Civ. P. 50(a)(1). “When
reviewing the denial of a motion for judgment as a matter of law, we will uphold
a jury verdict unless the facts and inferences point so strongly and so
overwhelmingly in favor of one party that reasonable men could not arrive at
any verdict to the contrary.” Cousin v. Trans Union Corp., 246 F.3d 359, 366
(5th Cir. 2001); see also Foradori v. Harris, 523 F.3d 477, 485 n.8 (5th Cir.
2008) (noting that same standard applies to review of renewed motion under
Rule 50(b)). “In resolving such challenges, we draw all reasonable inferences
and resolve all credibility determinations in the light most favorable to the
nonmoving party.” Foradori, 523 F.3d at 485. But “[e]ven though we might
have reached a different conclusion if we had been the trier of fact, we are not
free to re-weigh the evidence or to re-evaluate credibility of witnesses.” Id.
(quoting Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 297 (5th Cir. 2005)).
      Our review of a motion for a new trial is more deferential, and we will
only reverse the trial court’s denial of a motion for a new trial “when there is a
clear showing of an abuse of discretion.” Id. at 497. “Where a jury verdict is at
issue, ‘there is no . . . abuse of discretion unless there is a complete absence of
evidence to support the verdict.’” Benson v. Tyson Foods, Inc., 889 F.3d 233,
234 (5th Cir. 2018) (per curiam) (omission in original) (quoting Sam’s Style
Shop v. Cosmos Broad. Corp., 694 F.2d 998, 1006 (5th Cir. 1982)). Courts
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“should not grant a new trial on evidentiary grounds unless the verdict is
against the great weight of the evidence.” Whitehead v. Food Max of Miss., Inc.,
163 F.3d 265, 269 (5th Cir. 1998) (quoting Pryor v. Trane Co., 138 F.3d 1024,
1026 (5th Cir. 1998) (per curiam)).
                                           III.
       Hacker first argues that the district court should have granted his post-
trial motions because the jury unreasonably concluded that he was not
disabled. 1 Hacker also argues that even if the jury’s conclusion was reasonable,
the district court should have granted his motion for a new trial because
defendants violated the district court’s orders in limine. We address each
argument in turn.
                                            A.
      Hacker fails to demonstrate that no reasonable juror could find that he
was not disabled. Nor has Hacker demonstrated that the district court abused
its discretion in denying his motion for a new trial. Therefore, we affirm the
district court’s denial of his post-trial motions as they pertain to his disability
claim.
      The Rehabilitation Act and Title II of the ADA prohibit state and local
governments, including prisons, from discriminating on the basis of disability.
29 U.S.C. § 794; 42 U.S.C. §§ 12131-32; see also Hale v. King, 642 F.3d 492, 500
(per curiam) (5th Cir. 2011). To qualify for protection, a plaintiff must first
show that he is a “qualified individual within the meaning of the ADA”—i.e.,




      1  Hacker also challenges the district court’s summary judgment ruling. We “will not
review the pretrial denial of a motion for summary judgment where on the basis of a
subsequent full trial on the merits final judgment is entered adverse to the movant.” Black
v. J.I. Case Co., 22 F.3d 568, 570 (5th Cir. 1994). Therefore, we do not address Hacker’s
arguments relating to summary judgment.
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                                      No. 17-30879
that he is disabled. 2 See Windham v. Harris County, 875 F.3d 229, 235 (5th
Cir. 2017). The ADA defines a “disability” as “(A) a physical or mental
impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment . . . .” 42 U.S.C. § 12102(1). Hacker argues that the jury
should have found that he was disabled under either subsection A or B.
                                             1.
       We first consider whether a reasonable juror could have concluded that
Hacker did not have a physical impairment that substantially limited one or
more major life activities.
       To prove that he is disabled under subsection A, a plaintiff must show
that he has a physical or mental impairment. E.E.O.C. v. Chevron Phillips
Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009). But merely having an impairment
is not sufficient to prove disability under the ADA; the plaintiff “also need[s] to
demonstrate that the impairment substantially limits a major life activity.” Id.
“[T]o be substantially limited means to be unable to perform a major life
activity that the average person in the general population can perform, or to
be significantly restricted in the ability to perform it.” Hale, 642 F.3d at 500
(alteration in original) (quoting Chevron Phillips, 570 F.3d at 614); see also 28
C.F.R. § 35.108(d)(v). The ADA’s implementing regulations expressly state
that “seeing” is a major life activity. § 35.108(c)(1)(i).
       Considering all the evidence, the facts and inferences do not point so
strongly in favor of Hacker such that a reasonable juror must find Hacker to
be disabled under subsection A. At trial, the parties presented competing
narratives. Hacker argued that he suffered progressive visual impairment over


       2 For our purposes, the analysis under the ADA and the Rehabilitation Act is the same.
Cf. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (“Jurisprudence interpreting either
section is applicable to both.”).
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several years, emphasizing the numerous medical records labeling him “legally
blind” or recommending cataract surgery. Defendants conceded that Hacker
had cataracts but posited that Hacker had exaggerated the extent to which the
cataracts hindered his vision to avoid working in the fields. They pointed to
the fact that Hacker’s complaints became more frequent and his reports of his
vision problems became more severe when he was assigned to work in the fields
in the spring of 2013. And defendants highlighted that an eye exam is
necessarily based on a person’s own subjective reporting of his ability to read
an eye chart and thus any diagnoses of legal blindness were based on Hacker’s
self reports. Defendants’ expert Dr. Peter Kastl also testified that a person can
function with cataracts for years, or even decades. Dr. Kastl further testified
that in March 2014, medical records suggested that Hacker’s vision was not as
poor as earlier records indicated. Although earlier records stated that his
vision was 20/400 in his left eye and he was unable to read the eye chart with
his right, the March 2014 record states his vision to be 20/60 in his left eye and
20/100 in his right. Thus, a reasonable jury could fairly conclude that even
though Hacker had cataracts, they did not substantially limit his vision.
       Hacker protests that Congress’s 2008 amendment to the ADA broadened
the definition of disability such that courts must broadly construe the term “in
favor of expansive coverage, to the maximum extent permitted by the terms of
the ADA.” 3 See § 35.108(a)(2)(i). But the issue here is not whether severe
cataracts are a disability that would fall within the ADA; the question is




       3 Similarly, Hacker argues that the Ninth and Sixth Circuits have found cataracts to
be a “serious medical need” in the Eighth Amendment context. But again, these arguments
miss the point: the parties agree that severe cataracts may qualify as a disability, but the
question is whether Hacker in fact had such cataracts. The Ninth Circuit recognized as much,
acknowledging that a cataract can be “minor” with “little impact on an inmate’s vision.”
Colwell v. Bannister, 763 F.3d 1060, 1067 (9th Cir. 2014) (quoting Michaud v. Bannister, No.
2:08-cv-1371, 2012 WL 6720602, at *5 (D. Nev. Dec. 26, 2012)).
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whether Hacker actually suffered from severe cataracts. This is a factual
dispute that the jury reasonably resolved in defendants’ favor.
      In fact, most of Hacker’s arguments on appeal concern factual disputes.
For example, he argues that the jury could not reasonably conclude that
Hacker raised his vision problems to avoid working in the fields because he
had tried to obtain cataract treatment for two years prior. It is true that Hacker
first visited the eye clinic in October 2011 and on several occasions throughout
2012. But his visits picked up around the time he was assigned to field work
in the spring of 2013, and it was during this time that he made his emergency
request for health care, complaining of his vision. Moreover, although Hacker
argued at trial that working in the tag plant was a dangerous job for someone
with poor vision, he did not complain that his vision prevented him from
working until he was reassigned from the tag plant to field work. Thus, there
is evidence on both sides of this issue.
      Hacker also argues that defendants “manufacture credibility issues
regarding medical records they dislike.” Hacker contends that the medical
records are objective and must be believed; therefore, because the records state
that he was legally blind, the jury could not have reasonably found that he was
not substantially limited in a major life activity. But as Dr. Kastl testified at
trial, a vision exam in which a patient reads an eye chart depends on the
patient’s own self-reported responses. Therefore, jurors could have judged the
credibility of the various witnesses and found that Hacker had exaggerated the
effect of his cataracts in his vision exams.
      Dr. Kastl also pointed out that Hacker’s medical records just prior to
surgery showed that his visual acuity was 20/60 and 20/100—significantly
better than prior records suggested. Hacker argues that Dr. Kastl failed to
consider his visual field, noting that the same record states that Hacker had to
“look around” his cataract to read the eye chart. Hacker points out that his own
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expert, Dr. Bell, also reviewed the medical records and testified that he
believed Hacker was blind. Although Hacker’s argument is reasonable, it does
not definitively show that no reasonable juror could have found against him.
Dr. Kastl testified that he had reviewed all of Hacker’s medical records, so the
jurors could reasonably infer that Dr. Kastl considered Hacker’s loss of visual
field but found it not to be convincing. And it is possible that the jurors chose
to trust the medical diagnosis of Dr. Kastl, a board-certified ophthalmologist,
over the opinion of Dr. Bell, who held a doctorate in rehabilitation education
rather than medicine.
      Hacker’s various other objections to the evidence at trial are
unsuccessful. He argues that the Assistant Warden of Health Services
concluded that Hacker was legally blind, but her review was based on the same
records discussed above. He contests defendants’ evidence that Hacker was
substantially limited in major life activities because he could still play in a
band and write letters, pointing to testimony that he had trouble reading other
band members’ cues and that his cataracts prevented him from reading and
writing in some conditions but not others. And he argues that the jurors must
have concluded that his ripped pectoral muscle occurred because of his
inability to see, even though there was no medical record of the event. But to
overturn the jury’s verdict would require us to engage in the type of evidence
weighing and credibility assessments prohibited on appellate review. Because
there was sufficient factual evidence to support the jury’s verdict against
Hacker, we must let the verdict lie.
      Finally, Hacker argues that the jury should have drawn an adverse
inference from defendants’ failure to put forward a witness to testify about
Hacker’s limitations. Otherwise put, Hacker argues that because defendants’
employees would have observed Hacker in the prison, defendants should have
called one of their own employees to testify to his ability to perform major life
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activities. Because they did not present such evidence, Hacker reasons that the
jury should have inferred that if defendants had called their own witness, the
witness’s testimony would not have been in their favor. Although we have
recognized this adverse inference in some circumstances, its application is
limited; the inference only applies when “the missing witness has information
‘peculiarly within his knowledge.’” United States v. Wilson, 322 F.3d 353, 363
(5th Cir. 2003) (quoting Streber v. Comm’r, 138 F.3d 216, 221-22 (5th Cir.
1998)). Here, Hacker’s fellow inmates witnessed his behavior and testified on
his behalf. Therefore, there was no need for defendants to also put a witness
on the stand, as they could rely on their cross-examination of Hacker and his
fellow inmates. Cf. id. at 363 n.14 (noting exception to presumption where
witness is equally available to both parties).
      In sum, Hacker presents a reasonable case for why the jury should have
found in his favor. But it is the function of the jury, not the court, to make
credibility determinations and weigh the evidence. Because we cannot
conclude that the jury acted unreasonably in finding that Hacker was not
disabled, we find that the district court properly denied judgment as a matter
of law on this issue. Additionally, it cannot be said that there was no evidence
in support of such a verdict, and the district court acted within its discretion
in denying Hacker’s motion for a new trial.
                                       2.
      Hacker fails to demonstrate that the jury’s conclusion that he did not
have a record of impairment was unreasonable or unsupported by evidence.
“An individual has a record of such an impairment if the individual has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.”
§ 35.108(e)(1). To demonstrate a disability under subsection B, the plaintiff


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must show that (1) he “has a record of an injury or impairment” and (2) that
the “impairment limited a major life activity.” Hale, 642 F.3d at 502.
      Hacker points to instances in his medical records noting that he was
legally blind or that he had cataracts. These medical records alone, he reasons,
show that he is disabled under subsection B. But defendants presented
evidence disputing whether he had a record of, or history of, visual impairment.
See Adams v. Rice, 531 F.3d 936, 946 (D.C. Cir. 2008) (applying three-step test
to evaluate claims of disability under subsection B, first considering whether
the plaintiff has a “history of a mental or physical impairment”). Otherwise
put, defendants challenged whether Hacker’s medical record, when taken as a
whole, reflected a history of visual impairment. As discussed above, defendants
presented evidence calling into question whether Hacker’s eye chart
examinations could objectively measure the severity of his visual impairment.
Defendants also pointed to Hacker’s March 2014 medical record indicating that
his vision had improved, or at least was not as bad as other medical records
indicated. Additionally, defendants’ medical expert testified that based on his
review of Hacker’s medical history as a whole, he was never legally blind.
Therefore, a jury considering Hacker’s medical records could reasonably
conclude that they did not establish a record of impairment that substantially
limited one or more major life activities. See Cochran v. Holder, 436 F. App’x
227, 233-34 (4th Cir. 2011) (per curiam) (unpublished) (finding no record of
impairment when medical history included conflicting records: one indicating
that plaintiff suffered severe hearing loss, but another indicating that he had
only lost 10% of his hearing). Thus, the district court did not err in denying
Hacker’s renewed motion for judgment as a matter of law. And because at least
some evidence supported the jury’s verdict, we cannot say the district court
abused its discretion in denying the motion for a new trial.


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                                  No. 17-30879
      Because we decline to disturb the jury’s verdict that Hacker was not
disabled within the meaning of the ADA, we need not reach the parties’
arguments concerning reasonable accommodations or exhaustion.
                                       B.
      In the alternative, Hacker argues that defendants violated the court’s
orders in limine and a new trial should be ordered on these grounds. When a
movant requests a new trial “based on the submission of prejudicial
information to the jury, the district court must decide whether the error is
harmless by assessing whether ‘the error did not influence the jury, or had but
very slight effect.’” Hollybrook Cottonseed Processing, L.L.C. v. Am. Guar. &
Liab. Ins. Co., 772 F.3d 1031, 1034 (5th Cir. 2014) (quoting O’Rear v. Fruehauf
Corp., 554 F.2d 1304, 1308 (5th Cir. 1977)). We afford the district court “a great
deal of discretion in determining whether an objectionable question is so
prejudicial as to require a retrial” because the district court judge “is in a far
better position to measure the effect of an improper question on the jury than
an appellate court which reviews only the cold record.” Id. (quoting O’Rear, 554
F.2d at 1308).
      Hacker argues that defendants violated the orders in limine in three
ways. First, they referenced the medical care Hacker received in 2011 and 2012
in their opening statement, thus violating the court’s order excluding evidence
that did not “bear on the issues related to [Hacker’s] cataracts.” Hacker argues
that Dr. Lavespere also testified about this treatment and defendants
referenced the treatment in closing, stating: “You heard the whole story,
beginning in 2011. There were issues going on. The doctors at Angola,
including Dr. Lavespere, looked at it, tried to find out what was going on.”
Second, defendants said that “the testimony and the evidence is going to be
Jason Hacker broke all the rules” in their opening statement. Hacker argues
that this violated the parties’ agreement that defendants would not reference
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Hacker’s disciplinary records. Third, defendants began their opening
statement with “What’s this case about? Well, Jason Hacker is serving a life
sentence at Angola where he has been since the year—early 2000s,” which
Hacker argues violated the order in limine prohibiting references to “the
specific crimes for which [Hacker] was convicted or the conduct which led to
his conviction.” In addition, Hacker argues that he was prejudiced by defense-
expert Dr. Lavespere’s inflammatory testimony that “to be sent to the field is
the ultimate slap in the face . . . . You know, some of [the inmates] view it as
slavery. Some of the black ones in particular view it as slavery.”
      We do not find that the district court abused its discretion by denying
Hacker’s motion for a new trial. The testimony regarding Hacker’s medical
history was arguably related to defendants’ efforts to diagnose Hacker’s
cataracts, thus within the scope of the court’s order, which allowed “[e]vidence
of medical care given in connection with his cataract condition.” Defendants’
reference to Hacker’s life sentence complied with the letter of the court’s order
in limine, which only prevented defendants from referencing “the specific
crimes for which [Hacker] was convicted or the conduct which led to his
conviction.” And the statement that Hacker “broke all the rules” was made
while discussing Hacker’s counsel’s opening statement that Hacker had “kept
on the straight and arrow [sic].” To the extent the statement can be interpreted
to refer to Hacker’s disciplinary record, the reference was vague, and it is
unlikely that a juror would recognize it was in connection to any disciplinary
infraction.
      More importantly, even if these statements violated the court’s orders in
limine, Hacker has not shown that he was prejudiced by these violations other
than arguing that the jury returned a verdict against him. But the references
were brief and vague, and defendants did not submit any other evidence on
these topics. Hacker analogizes his case to Hollybrook, but the Hollybrook
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plaintiff was able to draw a connection between the defendant’s conduct and
the prejudice suffered. There, the defendant elicited testimony that the
plaintiff had made a settlement demand for $750,000. Hollybrook, 772 F.3d at
1033. The testimony was elicited on the next-to-last day of an eleven-day trial,
and the jury awarded the plaintiff $1,750,000 in damages—well below the
damages the plaintiff claimed it had suffered. Id. The district court granted a
new trial, at which the plaintiff ultimately won a $6 million award. Id. On
appeal, we affirmed the district court’s order granting the new trial because
there was “no discernable basis” for the jury’s initial award and it seemed that
the jurors had simply added $1 million to the settlement demand. Id. at 1034.
Further, the defendant could not offer another explanation for how the jury
arrived at its verdict. Id. In contrast, as described above, the jury’s verdict in
this case was reasonable and supported by evidence.
      Likewise, there is no evidence that Hacker—a white man—was
prejudiced by Dr. Lavespere’s inflammatory racial statements. Although
Hacker cites United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973), in which we
reversed a defendant’s conviction when the prosecutor’s argument was “replete
with racial and political undertones,” the racially inflammatory comments in
Sanchez were directed at the defendant. Id. at 8. Hacker provides no
explanation for why the objectionable behavior of an opposing party’s witness
would prejudice his own case when not directed at him. It was also within the
district court’s discretion to avoid instructing the jury to ignore this testimony
to avoid drawing further attention to it. Cf. Caldarera v. E. Airlines, Inc., 705
F.2d 778, 782 (5th Cir. 1983) (“The trial court may exercise judgment on the
basis of his own opinion of the effect the evidence will have, considering the
courtroom surroundings.”).
      Therefore, we conclude that the district court did not abuse its discretion
in denying Hacker’s motion for a new trial.
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                            No. 17-30879
                                 IV.
  For the foregoing reasons, we AFFIRM the judgment of the district court.




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