     Case: 13-30910      Document: 00512606646         Page: 1    Date Filed: 04/24/2014




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

                                                                                  FILED
                                    No.13-30910                               April 24, 2014
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
CHELSEA BROWN,

                                                 Plaintiff - Appellant
v.

WAL-MART LOUISIANA, L. L. C.,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:10-cv-01402


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Chelsea Brown appeals the denial of her motion for a judgment
notwithstanding the verdict (JNOV) after a jury awarded her damages for
injuries she sustained in a slip and fall accident at a Wal-Mart store in
Lafayette, Louisiana. Although the magistrate judge erred in applying the
standards under Federal Rule of Civil Procedure 59 to Brown’s motion, we




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30910
nonetheless AFFIRM the judgment as there is adequate evidence in the record
to support the jury’s verdict under Louisiana law.
                        FACTS AND PROCEDURAL HISTORY
        On July 18, 2009, Chelsea Brown slipped and fell inside a Wal-Mart store
when she encountered a puddle of water caused by a leak in the store’s roof.
(R. 1523). Brown sustained injuries in the fall, including an injury to her right
shoulder. (R. 1523). Brown filed suit against Wal-Mart in Louisiana state court
and Wal-Mart removed to the U.S. District Court for the Western District of
Louisiana based on diversity jurisdiction. (R. 22).                        Before trial, Wal-Mart
admitted liability for the slip and fall but contested the extent of Brown’s
injuries. (R. 1524). The parties consented to having a magistrate judge preside
over a three-day trial on the issue of damages in which both parties presented
expert testimony on the cause and extent of Brown’s injuries.                                  The jury
awarded Brown $1,500.00 for past lost wages; $14,138.39 for past medical
expenses; $0.00 for future medical expenses; and $45,000.00 for past, present
and future pain and suffering. (R. 1524).
        After trial, Brown filed a JNOV motion pursuant to Louisiana Code of
Civil Procedure Article 1811. 1 (R. 1215; 1524). She contended that the jury’s
award was contrary to the evidence because it did not adequately compensate
her for her injuries. She asked the magistrate judge to set aside the verdict
and enter a judgment for the full amount of her damages request. (R. 1216).
        The magistrate judge construed Brown’s state law JNOV motion as a
“Motion to Alter or Amend a Judgment” under Federal Rule of Civil Procedure
59(e), explaining that federal courts exercising diversity jurisdiction must




1Art. 1181 provides, in relevant part: “The motion for a judgment notwithstanding the verdict may be
granted on the issue of liability or on the issue of damages or on both issues.” (L.A. C.C.P. art. 1811(F)).

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                                         No. 13-30910
apply federal procedural rules. 2 (R. 1525). After evaluating the evidence
presented at trial, the magistrate judge found there was sufficient evidence to
support the jury verdict and denied Brown’s motion. Brown appealed to this
Court.
                                STANDARD OF REVIEW
       “When reviewing the disposition of a new trial motion, we normally
reverse the judgment only for an abuse of discretion.” Munn v. Algee, 924 F.2d
568, 575 (5th Cir. 1991).             “However, when the district court’s ruling is
predicated on its view of a question of law, it is subject to de novo review.” Id.
                                        DISCUSSION
       Brown cites Gasperini v. Center for Humanities, 518 U.S. 415, 419 (1996)
for the proposition that Louisiana law should apply to her JNOV motion and
that, accordingly, the magistrate judge erred by applying the standards under
Rule 59. In Fair v. Allen, 669 F.3d 601 (5th Cir. 2012), a case factually similar
to this one, we held that Gasperini requires this Court to apply Louisiana law
to JNOV and new trial motions when exercising diversity jurisdiction. Id. at
604. Accordingly, as we held in Fair, “the [magistrate judge] erred in applying
the federal standard; Louisiana law applies.” Id.
       The error here, as in Fair, makes no difference. Even under Louisiana
law there is adequate evidence in the record to support the jury’s verdict.
When applying Louisiana law, we “consider the record as a whole in the light
most favorable to the defendant in order to determine which injuries a rational
fact finder must have concluded were causally related to the accident.” Revel
v. Snow, 664 So. 2d 655, 659 (La.App. 3 Cir. 1995). “Despite permitting a trial



2 The magistrate judge also considered whether Brown’s motion could be viewed as a “Motion for
Judgment as a Matter of Law” after trial under Fed. R. Civ. P. 50 (b), but found that Brown failed to
first move for judgment as a matter of law at the close of evidence under Fed. R. Civ. P. 50(a). (R.
1525).

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court to review the jury’s credibility determinations, Louisiana gives the jury
high deference.” Fair, 669 F.3d at 605. The Louisiana Supreme Court has held
that “[t]he assessment of ‘quantum,’ or the appropriate amount of damages, by
a jury is a determination of fact that is entitled to great deference on review.”
Trunk v. Med. Ctr. of Louisiana at New Orleans, 885 So. 2d 534, 539 (La. 2004).
A JNOV motion “should be granted only when the evidence points so strongly
in favor of the moving party that reasonable persons could not reach different
conclusions, not merely when there is a preponderance of evidence for the
mover.” Joseph v. Broussard Rice Mill, Inc., 772 So. 2d 94, 99 (La. 2000).
      As the magistrate judge explained, the parties contested both the cause
and the extent of Brown’s injuries and both sides presented expert witness
testimony about the nature of her injuries. (R. 1528). For example, Brown
presented the testimony of Dr. David Wyatt who stated that, in his opinion,
Brown developed a bone spur as a result of the accident, which required
surgery. (R. 1221). Wal-Mart, on the other hand, presented the testimony of
Dr. Stan Foster who stated that in his opinion bone spurs develop over a period
of years, therefore, any bone spur in Brown’s shoulder pre-dated the accident.
(See Appellant’s Excerpt #2–Deposition of Dr. Foster).           Wal-Mart also
presented Dr. Francis Johnston, who was Brown’s original treating physician
after the accident, and he testified that the surgery Brown had on her shoulder
was not medically necessary to remedy the injuries she sustained in the
accident. (See Appellant’s Excerpt #1–Deposition of Dr. Johnston). While
Brown disagrees with the jury’s weighing of the experts’ testimony, Louisiana
law states that “[w]hen testimony of expert witnesses differs, it is within the
trier of fact’s discretion to determine what is the most credible evidence.”
Revel, 664 So. 2d at 659.
      Moreover, during trial Wal-Mart demonstrated that many of the days for
which Brown sought recovery for lost wages included vacation days and time

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                                  No. 13-30910
spent attending doctors’ appointments for medical issues unrelated to the Wal-
Mart accident. (R. 1529). As a result, during trial Brown revised her claim for
past lost wages to exclude recovery for those days. (R. 1886–87). Wal-Mart also
presented photographs of Brown performing physical activities that were
inconsistent with her testimony regarding her physical limitations. (R. 1528).
Based on the evidence in the record, the jury could have reasonably found Wal-
Mart’s evidence to be credible and rationally concluded that Brown was
exaggerating the extent of her injuries. See Lawson v. Mitsubishi Motor Sales
of Am., Inc., 938 So. 2d 35, 52 (La. 2006) (when reviewing a motion to set aside
the verdict under Louisiana law, “the court should not evaluate the credibility
of the witnesses and all reasonable inferences or factual questions should be
resolved in favor of the non-moving party”). Accordingly, there was ample
evidence in the record from which the jury could reasonably conclude that some
of the injuries Brown complained of were not proximately caused by the slip
and fall accident at Wal-Mart. See Guillory v. Lee, 16 So. 3d 1104, 1131 (La.
2009) (“[T]he jury’s verdict should not be set aside if it is supportable by any
fair interpretation of the evidence.”).
                                CONCLUSION
      Because the record contains adequate support for the jury’s verdict
under Louisiana law, we AFFIRM the judgment.




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