                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                          F I L E D
                                   In the                                  July 23, 2007
               United States Court of Appeals                       Charles R. Fulbruge III
                          for the Fifth Circuit                             Clerk
                              _______________

                                m 06-61117
                              Summary Calendar
                              _______________

                               TAMIKO JONES,
                                INDIVIDUALLY;
                             SHAKERIAL JONES,
     MINOR, BY AND THROUGH HER MOTHER AND LEGAL GUARDIAN, TAMIKO JONES;
                            GLADYS MAE TERRY,
                                INDIVIDUALLY;
           ANGELA TERRY; SEKUILLA TERRY; AND QUASHAN TERRY,
  MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, GLADYS MAE TERRY;
                                ARRY DAVIS,
                                INDIVIDUALLY;
                MARVIN DAVIS; TYRONE DAVIS; JARVIS DAVIS;
                  FREDRICK DAVIS; AND TYNISE HUDSON,
     MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, ARRY DAVIS;
                              SHERRY WRAGG,
                                INDIVIDUALLY;
ARSENIO WRAGG; CHARLES WRAGG; KEUNDRA WRAGG; AND TIMOTHY WRAGG,
  MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, SHERRY WRAGG;
                               MARTHA LOTT,
                                INDIVIDUALLY;
                              SANTEARIS LOTT,
      MINOR, BY AND THROUGH HIS MOTHER AND LEGAL GUARDIAN, MARTHA LOTT;
                              JOHN DOES 1-10,

                                                 Plaintiffs-Appellants,

                                  VERSUS

                            NL INDUSTRIES, INC.,
FORMERLY KNOWN AS NATIONAL LEAD COMPANY, FORMERLY KNOWN AS DUTCH BOY PAINTS;
                      JERRY PURNELL; JOHN DOE 1-10,
    Defendants-Appellees.




2
                                     _________________________

                             Appeal from the United States District Court
                               for the Northern District of Mississippi
                                          m 4:03-CV-229
                                ______________________________


Before SMITH, WIENER, and OWEN,                                   2. The soil at 600 Dewey Street;
  Circuit Judges.
                                                                 3. Lead sources at multiple other resi-
PER CURIAM:*                                                 dences;

    A jury found in favor of defendants NL                        4. Lead sources at a day care center;
Industries, Inc., and Jerry Purnell in this suit
brought on behalf of fourteen minor children                      5. Plaintiffs’ alleged extensive family
allegedly injured by lead-based paint. The                   histories of mental retardation;
district court denied plaintiffs’ motion for new
trial. Finding no abuse of discretion, we af-                     6. Learning disabilities; and,
firm.
                                                                  7. Behavioral problems.
                        I.
   In moving for a new trial, plaintiffs claimed                  Just as the plaintiffs have the burden of
the jury instructions were merely abstract                   proving their case by a preponderance of
statements of law and did not tie sufficiently to            the evidence, in order for you to find any of
the facts of the case and that the court should              these things to be a probable cause, NL In-
have used their proposed instructions on                     dustries must prove by a preponderance of
proximate cause. Those proposed instructions                 the evidence that the thing which it argues
explained plaintiffs’ burden to prove proximate              is a proximate cause is, in fact, a probable
causation and stated the following:                          cause of plaintiffs’ injuries, if any.

     The defendants, NL Industries, has pled              The court rejected the proffered instruction at
   affirmatively that the actual proximate                trial and in its denial of a motion for new trial
   causes of the plaintiffs’ lead poisoning, if           because, among other things, it did not state
   any, was one or more of the following:                 the law correctly. In addition to appealing the
                                                          denial of a new trial, plaintiffs appeal the re-
       1. Lead based paint at 600 Dewey                   fusal to permit them to tell the jury that the
   Street not connected with NL Industries;               minor children had guardians who had been
                                                          appointed to protect their interests and oversee
                                                          any money awarded to them.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published                            II.
and is not precedent except under the limited cir-           We review challenged jury instructions for
cumstances set forth in 5TH CIR. R. 47.5.4.

                                                      3
abuse of discretion. Fiber Sys. Int’l, Inc. v.             ticular cause is probable, the other causes
Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006).               must be eliminated. Thus, when the evi-
“Where a party argues on appeal that the dis-              dence shows that it is just as likely that ac-
trict court erred in refusing to give a proffered          cident might have occurred from causes
jury instruction, that party must ‘show as a               other than defendant’s negligence, the in-
threshold matter that the proposed instruction             ference that his negligence was the proxi-
correctly stated the law.’” Russell v. Plano               mate cause may not be drawn.
Bank & Trust, 130 F.3d 715, 719 (5th Cir.
1997) (quoting FDIC v. Mijalis, 15 F.3d                 Miss. Valley Gas Co. v. Estate of Walker, 725
1314, 1318 (5th Cir. 1994)). Once that                  So. 2d 139, 145-46 (Miss. 1998) (internal
threshold is met, “the challenger must demon-           quotation omitted).
strate that the charge [given] creates substan-
tial doubt as to whether the jury was properly              We reached the same conclusion in the sim-
guided in its deliberations. Second, even if the        ilar context of intervening causes under Texas
jury instructions were erroneous, we will not           tort law. In E.I. du Pont de Nemours & Co. v.
reverse if we determine, based upon the entire          McCain, 414 F.2d 369, 374-75 (5th Cir.
record, that the challenged instruction could           1969), the plaintiff posited that “the trial court
not have affected the outcome of the case.”             should have instructed the jury that intervening
Green v. Adm’rs of the Tulane Educ. Fund,               cause is an ‘affirmative defense’ to plaintiffs’
284 F.3d 642, 659 (5th Cir. 2002) (internal             negligence claim.” Id. at 374. We rejected
citations omitted).                                     that argument: “‘The theory of new and
                                                        independent cause is not an affirmative de-
                        A.                              fense; it is but an element to be considered by
   The proposed instruction does not properly           the jury in determining the existence or non-
state the law: It places the burden on defen-           existence of proximate cause.’” Id. (quoting
dants to prove alternative causes in fact, to use       Dallas Ry. & Terminal Co. v. Bailey, 250
those alternate causes to negate proximate              S.W.2d 379, 383 (Tex. 1952)). Because
causation. The proposed instruction stated,             plaintiffs’ proposed instruction incorrectly
“NL Industries must prove by a preponderance            places the burden on defendants to prove alter-
of the evidence that the thing which it argues          nate causes, it does not properly state the law,
is a proximate cause is, in fact, a probable            and the district court did not abuse its discre-
cause of plaintiffs’ injuries . . . .”                  tion in declining to give it.

    The Mississippi Supreme Court has square-                                  B.
ly rejected this proposition and, instead, places          Plaintiffs’ other complaintSSthat the juryin-
the burden on the plaintiff to disprove other           structions were too abstract and not tied to the
possible causes in fact, not on the defendant to        facts at trialSSalso fails. Though we look to
establish them:                                         state law to determine the content and sub-
                                                        stance of jury instructions, their form is a pro-
   Where plaintiff in a negligence action has           cedural question determined by federal law.
   only presented proof that the actual cause           Reyes v. Wyeth Labs., 498 F.2d 1264, 1289
   was one of a number of possibilities, to en-
   able an inference to be drawn that any par-


                                                    4
(5th Cir. 1974).1 Plaintiffs’ argument that                  details from the case, and because plaintiffs
Mississippi law requires that instructions in-               point to no specific deficiencies in the instruc-
corporate facts from the case is irrelevant, be-             tions, there is no abuse of discretion.
cause we must apply federal standards.
                                                                                     III.
    Plaintiffs direct us to United States v. Lew-                In three paragraphs at the end of their brief,
is, 592 F.2d 1282, 1286 (5th Cir. 1979), and                 plaintiffs assert that the district court erred in
United States v. Gunter, 876 F.2d 1113, 1119                 refusing to allow them to tell the jury that the
(5th Cir. 1989), to argue that the federal rules             minor children had guardians to oversee any
require specific instructions that relate the law            award. Plaintiffs do not cite the standard to
to the facts of the case. Neither of these cases,            review this evidentiary decision, any support-
however, announces a per se rule to that ef-                 ing authorities for their position, or any refer-
fect.2 An instruction does not always have to                ences to the record. Though they assert that
include the facts a plaintiff requests.3 Because             the “record is replete with instances of Defense
there is no per se rule that instructions contain            counsel attacking the character, the behavior,
                                                             and/or the parental qualities of the mothers of
                                                             the minor children,” plaintiffs cite no instances
   1
      See also 9A CHARLES ALAN WRIGHT &                      in the record establishing that claim.
ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2555 (2d ed. 2007) (“Both with re-                  Because the plaintiffs offer only a skeletal
gard to the manner and method of instructing the             recitation of an argument “without citing sup-
jury, federal courts follow their own rules, regard-         porting authorities or references to the rec-
less of the forum state’s practice and legislation.”).       ord,” this claim is “considered abandoned on
   2                                                         appeal. Notice pleading does not suffice for
      Lewis decided whether an entire proposed in-
                                                             appellate briefs.” United States v. Ballard,
struction should have been given, not whether ab-
stract instructions should have instead included             779 F.2d 287, 295 (5th Cir. 1986) (internal
facts of the case. Lewis, 592 F.2d at 1286 (“There           citations omitted).
was a sufficient evidentiary foundation to present
the issue and to warrant an instruction concerning              AFFIRMED.
authority and apparent authority to endorse. Cer-
tainly, the issue of good faith should have been
submitted.”). Similarly, Gunter involved “omitting
[a] requested jury instructions on a defense of good
faith.” Gunter, 876 F.2d at 1119.
   3
     United States v. Stone, 960 F.2d 426, 433
(5th Cir. 1992) (“Because the elements of agree-
ment and intentSSas well as the legal defenses
based on lack of agreementSSwere substantially
covered in the charge given to the jury, a theory of
the defense that merely recounted the facts without
those elements was not required.”) (citing United
States v. Lance, 853 F.2d 1177, 1184-85 (5th Cir.
1988); United States v. Barham, 595 F.2d 231,
244-45 (5th Cir. 1979)).

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