     Case: 16-20293      Document: 00514079747         Page: 1    Date Filed: 07/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals
                                      No. 16-20293                            Fifth Circuit

                                                                            FILED
                                                                        July 19, 2017
JOY PIPE, USA, L.P.,                                                   Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant Cross-Appellee

v.

ISMT LIMITED,

              Defendant - Appellee Cross-Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:13-CV-2153


Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
       The dispute in this case stems from delivery of nonconforming steel
bought by Plaintiff-Appellant Joy Pipe USA, L.P. (“Joy Pipe”), manufactured
in India by Defendant-Appellee ISMT Limited (“ISMT”), and brokered in the
United States by Fremak Industries (“Fremak”). The steel was marked as
being of a higher grade than it actually was, and Joy Pipe, not observing any
error, sent the steel to be transformed into couplings that were in turn sold to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20293
others in Joy Pipe’s supply chain. Eventually, these steel couplings were placed
deep inside two producing wells. These wells failed due to malfunction caused
by the couplings, leading Joy Pipe to incur substantial costs in mitigation. Joy
Pipe filed suit against ISMT, and a jury found in favor of Joy Pipe on claims
for breach of the implied warranties of merchantability and fitness for a
particular purpose. Nevertheless, the district court declined to adjust the
award amount to include prejudgment interest, post-judgment interest, or
taxable costs. Joy Pipe appeals on these grounds, and ISMT cross-appeals,
raising other issues. We AFFIRM in part and REMAND in part.

                                      I. Background
       The parties largely agree on the sequence of events culminating in this
appeal. Plaintiff-Appellant Joy Pipe is a Texas limited liability company
specializing in the business of selling quality steel couplings for use in oilfield
drilling operations. 1 It purchases the steel for these couplings and ships it to
its fabricator, Texas Couplings, L.P., for machining. Defendant-Appellee ISMT
is a company registered in India that manufactures tubular steel stock used in
fabricating steel couplings. Defendant Fremak is a New York corporation that
distributes steel stock to fabricators. On July 29, 2010, Joy Pipe contracted
with Fremak to purchase grade P-110 steel coupling stock manufactured by
ISMT. The steel was shipped directly to Texas Couplings, machined into
couplings, and sold to customers of Joy Pipe. Joy Pipe’s customers in turn sold
the couplings to other companies in a supply chain that ended with two well
owners, Vermilion Resources and NuVista Energy.
       Joy Pipe was notified of a well failure at the Vermilion well in August
2012, and was notified of another failure at the NuVista Well in March 2013.



       1Couplings are short lengths of pipe or tube with one socket at either end. They allow
two pipes or tubes to be tightly joined together.
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                                 No. 16-20293
After learning of the Vermilion well failure, Joy Pipe, through Texas
Couplings, investigated the couplings they had supplied to two of Joy Pipe’s
customers—Welded Tube and Laguna Tubular. In particular, the entities
relied on the conclusions of third-party investigator Acuren Group, Inc.
(“Acuren”), which identified the cause of the failure as a defective coupling
manufactured from ISMT stock that was represented to be grade P-110, but
which in fact displayed a hardness and microstructure typical of a much lower
grade. The failure at the NuVista well was also alleged to have resulted from
a failed coupling, prompting Joy Pipe to engage in further mitigation efforts at
its own expense. In particular, Joy Pipe paid $520,058 to Texas Couplings for
expenses incurred in locating non-conforming steel, and allowed Welded
Tube—which incurred losses in repairs, investigation, and removal—to
withhold $1,779,514.38 on amounts otherwise owed to Joy Pipe.
      Joy Pipe filed suit in federal district court against Fremak and ISMT,
alleging breach of contract, breach of implied and express warranties, strict
liability, negligence, and negligent misrepresentation. It sought damages for
mitigation costs incurred by Joy Pipe, the amount Welded Tube withheld from
Joy Pipe, the value of the defective steel, loss of business opportunity and lost
profits, attorneys’ fees, costs, prejudgment interest, and post-judgment
interest. All parties agreed on the applicability of Texas law.
      On December 8, 2014, the district court dismissed Joy Pipe’s claims for
strict liability, negligence, and negligent misrepresentation, leaving the breach
of warranty claims to proceed. The case proceeded to trial in late October and
early November 2015. After trial, the jury returned a verdict finding that ISMT
had breached the implied warranty of merchantability and implied warranty
of fitness for a particular purpose and was liable for damages totaling
$2,299,572.38. Joy Pipe filed a motion to enter judgment and included a
proposed final judgment providing for prejudgment interest as well as court
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costs and post-judgment interest, to which ISMT responded. The district court
then entered two orders, one summarily denying several motions, and the
other entering final judgment pursuant to the jury verdict, without any
mention of interest or costs. After denial of its motion to amend the judgment—
along with ISMT’s motion for judgment as a matter of law or for a new trial—
Joy Pipe filed this appeal. ISMT then filed a cross-appeal.
                                II. Discussion
                           A. Prejudgment Interest
      This court reviews a district court’s ruling on prejudgment interest for
abuse of discretion. Reyes-Mata v. IBP, Inc., 299 F.3d 504, 507 (5th Cir. 2002)
(per curiam).
                                1. Legal Standard
      “Prejudgment interest is ‘compensation allowed by law as additional
damages for lost use of the money due as damages during the lapse of time
between the accrual of the claim and the date of judgment.’” Johnson &
Higgins of Tex., Inc., v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998)
(quoting Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.
1985)). “The Texas Supreme Court has recognized two separate bases for the
award of prejudgment interest: (1) an enabling statute; and (2) general
principles of equity.” Int’l Turbine Servs. v. VASP Brazilian Airlines, 278 F.3d
494, 499 (5th Cir. 2002). Statutory prejudgment interest is available only with
respect to judgments in wrongful death, personal injury, property damage, and
condemnation cases. Id. On the other hand, equitable prejudgment interest,
which focuses on the need to compensate a plaintiff for the defendant’s
beneficial use of the damage funds between the time the injury occurred and
the time the judgment was rendered, is available as a matter of course, absent
exceptional circumstances. See Concorde Limousines, Inc. v. Moloney
Coachbuilders, Inc., 835 F.2d 541, 549 (5th Cir. 1987); see also Bituminous Cas.
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                                  No. 16-20293
Corp. v. Vacuum Tanks, Inc., 75 F.3d 1048, 1057 (5th Cir. 1996); Am. Int’l
Trading Corp v. Petroleos Mexicanos, 835 F.2d 536, 541 (5th Cir. 1987).
      Although the precise contours of what constitutes an exceptional
circumstance have not been wholly defined, our cases applying Texas law
clarify the following rules: (1) exceptional circumstances exist for reducing an
award of interest, “even to the point of elimination,” only if “the trial court
cannot address through other means any equitable concerns that favor the
defendant”; and (2) “[i]f a trial court finds such exceptional circumstances, it
should explain them.” Concorde Limousines, 835 F.2d at 549 (citing Cavnar,
696 S.W.2d at 553–54; Matthews v. DeSoto, 721 S.W.2d 286, 287 (Tex. 1986)
(per curiam)).
                                    2. Analysis
      ISMT contends that the equity principle underlying prejudgment
interest does not apply to this case. It argues that an award of prejudgment
interest is appropriate only when one party wrongfully detains and uses the
money of someone else, and that here there has been no wrongful detention
because Joy Pipe has allegedly never been out of pocket for any of its losses.
This is because the money awarded as damages for mitigation efforts pursued
through Welded Tube was a credit that Welded Tube otherwise owed on a
floating account, not a lump sum of cash, and ISMT claims that there is no
evidence that Texas Couplings has yet been paid for its investigatory work.
According to ISMT, if there was no money wrongfully detained, then there was
no deprivation of funds upon which Joy Pipe could have been earning
interest—a situation that qualifies as an exceptional circumstance.
      We conclude that remand is warranted on this issue. Texas law plainly
requires an equitable award of prejudgment interest to a prevailing plaintiff
as a matter of course. See, e.g., Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314,
1329 (5th Cir. 1994). Although the trial court may exercise discretion to forego
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                                     No. 16-20293
such an award in the presence of “exceptional circumstances,” those
circumstances must be explained. Concorde Limousines, 835 F.2d at 549.
Failure to provide reasons detailing exceptional circumstances is grounds for
remand. See Am. Int’l Trading Corp., 835 F.2d at 541 (“Because the trial court
. . . provided no explanation for its denial of prejudgment interest . . . we
remand this case for the trial court’s reconsideration of this issue. The trial
court must determine whether exceptional circumstances warrant a denial of
prejudgment interest in this case.”); Concorde Limousines, 835 F.2d at 550
(remanding    where     the     district   court   failed   to   explain   exceptional
circumstances justifying denial of prejudgment interest). Here, the district
court failed to explain the exceptional circumstances justifying its denial of
prejudgment interest. Thus, under this court’s jurisprudence, the district court
abused its discretion. See Reyes-Mata, 299 F.3d at 507. We therefore remand
with instructions to explain the exceptional circumstances, if any, that justify
denial of prejudgment interest. See Am. Int’l Trading Corp., 835 F.2d at 541.
                              B. Post-Judgment Interest
      The propriety of a post-judgment interest award is a question of law that
is reviewed de novo. Celtic Marine Corp. v. James C. Justice Cos., 593 F. App’x
300, 305 (5th Cir. 2014) (per curiam); see also DP Sols., Inc. v. Rollins, Inc., 353
F.3d 421, 435 (5th Cir. 2003).
                                  1. Legal Standard
      28 U.S.C. § 1961(a) provides that “[i]nterest shall be allowed on any
money judgment in a civil case recovered in a district court.” “Federal law
governs postjudgment interest in federal cases, including diversity cases.”
Tricon Energy Ltd. v. Vinmar Int’l, Ltd., 718 F.3d 448, 456 (5th Cir. 2013). Our
case law is clear that, given the unequivocal language of § 1961(a), an award
of post-judgment interest is not discretionary. Id. at 456–57; Meaux Surface
Prot., Inc. v. Fogleman, 607 F.3d 161, 173 (5th Cir. 2010).
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                                   No. 16-20293
                                     2. Analysis
      The district court erred in failing to award post-judgment interest.
Section 1961(a) and the case law interpreting it clarify that district courts are
required to award post-judgment interest on monetary judgments as a matter
of course—they do not have discretion to deny it. Meaux, 607 F.3d at 173. Joy
Pipe recovered a money judgment in a district court, but the district court
denied recovery of post-judgment interest. Moreover, ISMT does not oppose
Joy Pipe’s request for post-judgment interest at the federal rate. We therefore
remand with instructions to calculate and include post-judgment interest in
the damages award at the appropriate, statutorily-specified rate. See Rollins,
Inc., 353 F.3d at 435–36.
                                 C. Taxable Costs
      This court reviews a district court’s decision to deny an award of costs to
the prevailing party under Federal Rule of Civil Procedure 54(d) for abuse of
discretion. See Moore v. CITGO Ref. & Chems. Co., 735 F.3d 309, 319 (5th Cir.
2013).
                                 1. Legal Standard
      Rule 54(d)(1) states that “[u]nless a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney’s fees—should be
allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). This court has
acknowledged that Rule 54(d)(1) “creates ‘a strong presumption’ in favor of
awarding costs to a prevailing party.” U.S. ex rel. Long v. GSDMIdea City,
L.L.C., 807 F.3d 125, 128 (5th Cir. 2015). This presumption provides that “a
district court ‘may neither deny nor reduce a prevailing party’s request for
cost[s] without first articulating some good reason for doing so.’” Manderson v.
Chet Morrison Contractors, Inc., 666 F.3d 373, 384 (5th Cir. 2012) (quoting
Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)); Pacheco v. Mineta, 448
F.3d 783, 794 (5th Cir. 2006).
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                                  No. 16-20293
                                   2. Analysis
      Joy Pipe was the prevailing party below, yet the district court neglected
to award costs in its favor and did not explain its reasons for declining to do so.
Accordingly, we remand the case to the district court with instructions to either
modify the judgment to include a cost award or provide reasons for not doing
so, based on the presumption in favor of awarding costs evident in Rule 54(d)(1)
and in light of this court’s precedent requiring either an award or an
explanation. See, e.g., Manderson, 666 F.3d at 384.
                            D. One-Satisfaction Rule
      ISMT argues that the district court erred in permitting simultaneous
recovery under two implied warranty theories—merchantability and fitness
for a particular purpose—rather than requiring Joy Pipe to elect its remedy
between these two theories. “Whether to impose the election of remedies
requirement under Texas law is a question of law that is reviewed de novo.”
Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 335 (5th Cir. 2008).
                                 1. Legal Standard
      The “one-satisfaction rule” stands for the proposition that “a plaintiff
cannot obtain more than one recovery for the same injury.” Household Credit
Servs., Inc. v. Driscol, 989 S.W.2d 72, 80 (Tex. App.—El Paso 1998, pet. denied).
Where a plaintiff advances alternate theories of liability, the one-satisfaction
rule mandates only one recovery if: (1) there is only one injury; (2) the theories
of liability are mutually exclusive; or (3) there are no separate damage findings
based on the alternate theories of liability. Id. Damage awards premised on
more than one theory do not amount to a double recovery “if the theories of
liability arise from two separate and distinct injuries, and there has been a
separate and distinct finding of damages on both theories of liability.” Id.
(citing Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987)).
Where the one-satisfaction rule applies, a plaintiff “has a right to a judgment
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                                  No. 16-20293
on the theory entitling him to the greatest or most favorable relief.” Boyce Iron
Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988).
                                    2. Analysis
      According to ISMT, a judgment awarding damages on two alternate
theories can occur only where those theories arise from separate and distinct
injuries and separate and distinct damages findings are entered on each
theory. ISMT contends: (1) that Joy Pipe suffered only a single injury—the
economic loss caused by ISMT—that has been consistently argued in terms of
alternate theories; and (2) that the jury did not make separate and distinct
damages findings as to each theory because the elements of damages in the
jury charge do not differ between the theories.
      Joy Pipe argues that the jury did award separate and distinct elements
of damage. This is because in response to the interrogatory regarding breach
of the implied warranty of merchantability, the jury awarded precisely the
mitigation costs associated with Texas Couplings, and in response to the
interrogatory regarding the warranty of fitness for a particular purpose, the
jury awarded the mitigation costs associated with Welded Tube.
      We conclude that there is no double recovery in this case such as would
offend the one-satisfaction rule. In reaching this conclusion, we acknowledge
that the injury in this case consists entirely of the mitigation costs associated
with delivery of the defective steel, that the evidence establishing the course of
conduct leading to the damages Joy Pipe claims is the same for both implied
warranty claims, and that the damages questions submitted to the jury were
the same for each alternate claim. What informs our judgment here, however,
is the recognition that the amounts awarded as to the two implied warranty
claims were exactly equal to (1) the mitigation costs incurred by, and paid to
Texas Couplings (equal to the award as to the implied warranty of
merchantability claim); and (2) the mitigation costs incurred by, and paid to
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                                  No. 16-20293
Welded Tube (equal to the award as to the implied warranty of fitness for a
particular purpose claim).
      In other words, Joy Pipe is recovering for two separate and distinct
amounts that it separately paid to different companies—Texas Couplings and
Welded Tube—in connection with distinct occurrences creating different losses
for different parties. Thus, Joy Pipe is not recovering for the same injury twice,
and the district court did not err in permitting simultaneous recovery under
both implied warranty theories. Am. Rice, 518 F.3d at 335.
                              E. Jury Instructions
      ISMT challenges the adequacy of the district court’s jury instructions on
various grounds. “This court reviews jury instructions for abuse of discretion.”
Garriott v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011).
                               1. Legal Standard
      A party appealing a district court’s refusal to give a particular
instruction to the jury must first show that the proposed instruction properly
stated the law. See Julian v. City of Houston, 314 F.3d 721, 727 (5th Cir. 2002).
Provided the challenging party succeeds in making this showing, that party
must then “demonstrate that the charge as a whole creates substantial and
ineradicable doubt [as to] whether the jury has been properly guided in its
deliberations.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013)
(quoting Price v. Rosiek Constr. Co., 509 F.3d 704, 708 (5th Cir. 2007) (per
curiam)). Moreover, even where the challenger proves the instruction
misguided the jury, this court will reverse only if the erroneous instruction
affected the outcome of the case. Id.
                                   2. Analysis
      ISMT emphasizes three allegedly deficient features of the district court’s
jury instructions: (1) the district court’s failure to divide the jury charge by
individual well failure, such that liability for each failure could be determined
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separately; (2) the district court’s failure to include a specific instruction
requiring the jury to find that ISMT’s actions actually caused the well failures;
and (3) the district court’s failure to include an instruction on the new and
independent cause doctrine. Finally, ISMT argues that even if none of these
alleged errors is individually sufficient to require a new trial, they
cumulatively combine to constitute an abuse of discretion. We address each of
these contentions in turn.
   a. Division of the Jury Charge By Individual Well Failure
      ISMT argues that because this case involved two separate well failures
that allegedly caused separate amounts of damages for each, the jury charge
should have been structured to permit the jury to separately judge liability and
damages by well failure. It argues that in situations involving multiple
injuries, the use of special interrogatories that break out questions of liability
and damages are preferred. It then argues that there is ample evidence
relating to causation that would have permitted the jury to find ISMT liable
for the Vermilion well failure and not liable for the NuVista well failure, and
that omitting to divide the jury charges accordingly prejudiced the jury’s
damages determinations.
      Fed R. Civ. P. 49 provides district courts with broad discretion to frame
written questions to the jury. Cent. Progressive Bank v. Fireman’s Fund Ins.,
658 F.2d 377, 381 (5th Cir. Unit A Oct. 1981) (citing Dreiling v. Gen. Elec. Co.,
511 F.2d 768, 774 (5th Cir. 1975)).
      “In determining the adequacy of the form of special
      interrogatories, we consider ‘(i) whether, when read as a whole and
      in conjunction with the general charge the interrogatories
      adequately presented the contested issues to the jury, . . . (ii)
      whether the submission of the issue to the jury was “fair”, . . . and
      (iii) whether the “ultimate questions of fact” were clearly
      submitted to the jury.’”


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Id. at 381 (alterations in original) (quoting Dreiling, 511 F.2d at 774); see also
Bosarge v. Cheramie Maine, L.L.C., 675 F. App’x 417, 421 (5th Cir. 2017) (per
curiam).
       Although in situations involving multiple “separate (and probatively
uncertain) incidents,” special interrogatories directed to each incident would
have the practical benefit of facilitating appellate review and are accordingly
encouraged by this court, there is no authority indicating that this practice is
mandatory. See McWilliams v. Texaco, Inc., 781 F.2d 514, 516–17 (5th Cir.
1986); see also Baumstimler v. Rankin, 677 F.2d 1061, 1071–72 & n.15 (5th
Cir. 1982).
       Here, we conclude that the district court did not abuse its discretion in
determining not to categorize damages by well failure through use of special
interrogatories. The interrogatories relating to damages for the implied
warranty claims accurately and fairly state the elements of the damages
sought—the costs of nonconforming coupling stock, the costs of mitigation
efforts by Texas Couplings, and the costs of mitigation efforts by Welded Tube. 2
Regardless of which well failure apprised the relevant parties of the need to
undertake the mitigation efforts for which Joy Pipe now seeks damages, the
damages sought can all be traced back to delivery of the same nonconforming
goods. When read as a whole, an inquiry into the relationship between breach
of the warranties and the damages resulting therefrom is precisely what the
interrogatories submitted to the jury conveyed. See Cent. Progressive, 658 F.2d
at 381. While dividing the damages by well failure may have been one way of
presenting the questions to the jury to maintain consistency with the damages



       2The damages-related interrogatories—virtually identical between the warranty
theories—ask “[w]hat sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Joy Pipe for its damages, if any, that resulted from a breach of the implied
warranty of [merchantability/fitness for a particular purpose] by any of those named below?”
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discussions in the testimony, we cannot say that the district court’s decision to
present the issues in another, equally accurate manner constitutes an abuse of
discretion. Certainly it raises no issue of a substantial or ineradicable doubt as
to the propriety of the jury’s guidance. Abraham, 708 F.3d at 620.
   b. Causation of the Individual Well Failures
      ISMT argues that the jury should have been specifically instructed that
it was required to find that ISMT caused the two well failures, as opposed to
finding that ISMT breached the implied warranties and that those breaches
alone caused Joy Pipe’s damages. In ISMT’s view, this constituted error
because the well failures were the occurrences that led to the alleged
consequential damages, and accordingly there could be no damages without
proof that ISMT’s goods caused the well failures. ISMT claims that if the jury
had been instructed in the preferred manner, it would not have found ISMT
liable on grounds of an insufficiency of evidence relating to causation.
      In Texas, to recover consequential damages for breach of implied
warranty of merchantability or fitness for a particular purpose, a plaintiff must
establish that the seller’s actions constituting a breach proximately caused
those damages. See TEX. BUS. & COM. CODE § 2.715(b)(2) (noting that
consequential damages include any “injury to person or property proximately
resulting from any breach of warranty”); JCW Elecs., Inc. v. Garza, 257 S.W.3d
701, 706 (Tex. 2008). Proximate cause in Texas has two elements—cause in
fact (also known as substantial factor) and foreseeability. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)
(citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). Cause in fact
is established when the problematic act “was a substantial factor in bringing
about the injuries, and without it, the harm would not have occurred.” Id. at
799. Moreover, Texas law is clear that in the breach of implied warranty
context:
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                                  No. 16-20293
      [T]he question of ‘proximate’ cause turns on whether it was
      reasonable for the buyer to use the goods without such inspection
      as would have revealed the defects. If it was not reasonable for him
      to do so, or if he did in fact discover the defect prior to his use, the
      injury would not proximately result from the breach of warranty.

TEX. BUS. & COM. CODE § 2.715 cmt. 5; see also Signal Oil & Gas Co. v.
Universal Oil Prods., 572 S.W.2d 320, 329 (Tex. 1978) (noting the relevance of
a buyer’s negligence to the proximate cause determination in an implied
warranty context).
      Here, we conclude that the district court did not abuse its discretion in
framing the causation inquiry for the jury. The jury instructions contained
detailed   language    concerning    the     nuances   of    proximate   causation,
incorporating all the elements as listed above. Specifically, the jury instruction
stated:
      “Proximate cause” means a cause that was a substantial factor in
      bringing about losses, and without which cause such losses would
      not have occurred. In order to be a proximate cause, the act or
      omission complained of must be such that a person using ordinary
      care would have foreseen those losses or some similar losses, might
      reasonably result therefrom.

      Although we accept ISMT’s contention that the jury’s consideration of
proximate cause must include causation for the well failures because they
created repair costs that Joy Pipe sought to recover, that does not entitle ISMT
to a jury instruction that explicitly mentions the well failures. The requirement
is a showing of proximate causation between the breach and the losses
(damages) resulting therefrom. JCW Elecs., Inc. 257 S.W.3d at 706. To
accurately state the plaintiff’s burden on causation, the jury instruction need
only communicate this causal connection. Naturally, where the well failures
form part of the damages, a general instruction regarding proximate causation
imports the need for a finding regarding those failures, but a decision not to

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                                   No. 16-20293
specifically break out that finding cannot constitute an abuse of discretion. Cf.
FED R. CIV. P. 49 (providing broad discretion to district courts in manner of
charging the jury).
   c. The New and Independent Cause Doctrine
      ISMT maintains that Welded Tube performed a negligent inspection of
the supply yard containing the couplings manufactured from ISMT steel,
resulting in a defective coupling making its way into the NuVista well.
Accordingly, ISMT argues that it should have been permitted to include a jury
instruction on the “defense” of new and independent cause and its relationship
to proximate cause. ISMT acknowledges that there is no case establishing that
the new and independent cause concept has relevance to a UCC breach of
implied warranty claim, but argues that because a definition of proximate
causation is required in a breach of warranty case, an instruction involving the
related concept of a new and independent cause should also be given where
there is evidence to support it.
      The concept of a “new and independent cause” is directly related to the
concept of proximate cause, and refers to “the act or omission of a separate and
independent agency, which destroys the causal connection between the
negligent act or omission of the defendant and the injury complained of, and
thereby becomes . . . the immediate cause of such injury.” Biaggi v. Patrizio
Rest. Inc., 149 S.W.3d 300, 305 n.6 (Tex. App.—Dallas 2004, no pet.) (alteration
in original) (quoting Young v. Massey, 101 S.W.2d 809, 810 (Tex. 1937)). The
concept is distinct from the question of the buyer’s own negligence, already
discussed above as germane to the proximate cause inquiry in a breach of
warranty case.
      We hold that the district court did not abuse its discretion in refusing to
instruct the jury regarding the new and independent cause doctrine. ISMT
concedes that there is no authority suggesting that the concept has application
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                                  No. 16-20293
in a breach of warranty context, and a review of the applicable law reveals no
statute or case to contradict this proposition. Accordingly, we conclude that the
district court did not abuse its discretion in omitting an instruction relevant to
the new and independent cause doctrine. Garriott, 661 F.3d at 247.
   d. Cumulative Error
         ISMT argues that, notwithstanding their individual significance, the
various errors it alleges pervaded the jury instructions combine to
cumulatively constitute an abuse of discretion mandating remand for a new
trial.
         The cumulative error doctrine applies where “an aggregation of non-
reversible errors,” discussed individually, can combine to require reversal.
United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012) (en banc); see
also United States v. Williams, 264 F.3d 561, 572 (5th Cir. 2001). However,
“‘[c]umulative error’ justifies reversal only when errors ‘so fatally infect the
trial that they violate[] the trial’s fundamental fairness,’” Delgado, 672 F.3d at
344 (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)), and for
that reason “the possibility of cumulative error is often acknowledged but
practically never found persuasive.” Derden v. McNeel, 978 F.2d 1453, 1456
(5th Cir. 1992) (en banc).
         Likewise, here we conclude that the cumulative error doctrine does not
apply to this case. First, it is not clear that this Circuit’s cumulative error
doctrine applies outside of a criminal context. Second, assuming arguendo that
the doctrine does have broader applicability, ISMT does not appear to have put
forth any evidence that the “errors” of which it complains are so numerous and
so egregious as to “fatally infect” the trial and undermine its “fundamental
fairness” in violation of due process. See Delgado, 672 F.3d at 344. Thus, the
errors that ISMT alleges do not cumulatively amount to an abuse of discretion.


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                                    No. 16-20293
                               III. CONCLUSION
      For the foregoing reasons, we AFFIRM as to the amounts awarded on
each theory of liability and as to the propriety of the district court’s jury
instructions. We REMAND with instructions for the district court to: (1)
calculate and award post-judgment interest at the statutorily-specified rate;
(2) calculate and award prejudgment interest or explain the exceptional
circumstances that warrant its denial; and (3) award taxable costs or explain
its reasons for failing to do so.




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