     Case: 09-51060 Document: 00511321993 Page: 1 Date Filed: 12/15/2010




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

                                                 FILED
                                                                         December 15, 2010

                                       No. 09-51060                         Lyle W. Cayce
                                                                                 Clerk



LEAR SIEGLER SERVICES,

                                           Plaintiff – Appellee

v.

ENSIL INTERNATIONAL CORPORATION


                                           Defendant – Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:05-CV-679


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
       This is an appeal from a judgment rendered against Ensil International
Corporation (“Ensil”), a vendor for government repair contracts on avionics
equipment, for breach of contract concerning eight sophisticated combined
interrogating transponder (CIT) units. The jury found Ensil liable and awarded
approximately a half million dollars in damages incurred by appellee Lear



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-51060 Document: 00511321993 Page: 2 Date Filed: 12/15/2010



                                  No. 09-51060

Siegler Services to have further repairs made by another concern. Ensil raises
only the issues whether sufficient evidence supported the verdict; whether
Supply Discrepancy Reports (SDRs) sent by the South Koreans who complained
about the units were properly admitted; and whether the court, after deciding
to grant a partial new trial for alleged defective repairs of 67 other units Ensil
handled, was also obliged to extend the new trial to these units. Finding no
error or abuse of discretion in these rulings, we affirm.
      Ensil contends the evidence is legally insufficient to support a finding of
defective warranty repairs because Lear failed to prove that defects later
discovered in the eight CIT units had existed when they left Ensil's control. The
Boeing test for granting judgment as a matter of law requires us to review the
evidence supporting the judgment in the light most favorable to the verdict and
authorizes reversal only if no reasonable jury could have found for the appellee.
Boeing Co. v Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc), overruled
on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336 (5th
Cir. 1997) (en banc). As the district court noted in its response to a post-
judgment motion urging the same point, the jury could have credited the
technical testimony from IEI, the facility that performed the later repairs, that
the defects it found in the CITs could not have been caused by the end users (the
South Korean Air Force). Likewise, a reasonable jury could conclude that the
absence of an Ensil sticker or seal on the units or any other "documentation
evidencing inspection, testing or repairs, suggests that Ensil had not made any
repairs at any time." The appellee's evidence also rebutted Ensil's claim that
exposure to electrostatic discharge by the end users caused the CIT units'
defects. Ensil may disagree with the quality of this evidence, but it is sufficient
to support the verdict.
      As to the court's admission of the SDRs with abundant limiting
instructions that the SDRs proved only the existence of complaints about these

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                                  No. 09-51060

units and not that the units were defective, the appellate review standard is
abuse of discretion. Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir.
1993).   This court will not reverse unless the district court erred in the
admission of evidence and the error affected a substantial right of a party. Id.
Contrary to Ensil's view, we must assume that the jury followed the court's
limiting instructions, which directed their attention to the non-hearsay matter
evidenced by the filing of the reports. No error occurred.
      Last, the court's denial of a new trial as to these eight CIT units, after it
granted a new trial (and ultimately judgment as a matter of law) regarding the
other 67 non-CIT units, is also reviewed for abuse of discretion. Shows v.
Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). Federal Rule of Civil
Procedure 59(a) specifically authorizes the grant of a partial new trial. Although
it seems intuitive that the jury would be influenced by hearing of a larger
number of alleged contract breaches by Ensil than should have gone to trial, it
is not evident how much the evidence of the non-CIT units tainted the liability
case concerning the units now at issue. Indeed, there seems to have been little
overlap in the evidence, and the court instructed the jury not to consider its
verdict answers on the other repair contracts when it considered the issues
pertaining to the eight CIT units. Ensil has pointed to no piece of evidence,
argument, or testimony that, when admitted on the 67 other contracts, spilled
over or prejudiced its position on the units now at issue. We cannot hold that
the trial court abused its discretion because of a mere suspicion.
      For these reasons, the judgment is AFFIRMED.




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