                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                       In the                                    August 4, 2004
  United States Court of Appeals                            Charles R. Fulbruge III
             for the Fifth Circuit                                  Clerk

               ___________________

                   m 03-40776
                 Summary Calendar
               ___________________


             ALL FREIGHT SYSTEMS,

                                             Plaintiff,

                   KEN POWERS,

                                      Intervenor Plaintiff-Appellant,


                      VERSUS

            CASSANDRA JAMES, ET AL.,

                                             Defendants,

CHARLES JOHNSON; WILLAMETTE INDUSTRIES, INC.,

                                             Defendants-
                                             Intervenor Defendants-
                                             Appellees.

               ___________________

     Appeal from the United States District Court
          for the Eastern District of Texas
                  m 4:00-CV-437
               ___________________
Before SMITH, DEMOSS, and STEWART,                               At the jury trial, Johnson’s vision was
  Circuit Judges.                                            brought into question by the plaintiffs. Rec-
                                                             ords from Johnson’s DOT examinations from
JERRY E. SMITH, Circuit Judge.*                              1980 through 1998 showed that his vision
                                                             was 20/20 throughout this period. Further-
   All Freight Systems, which was Ken Pow-                   more, six weeks after the accident, he received
ers’s employer, sued Cassandra James, Charles                another DOT physical examination that did not
Johnson, and Willamette Industries (“Willam-                 show a need for corrective lenses. Dr.
ette”); Powers intervened as plaintiff. The suit             Karanges, who performed a court-ordered in-
resulted from a car accident in which James hit              dependent DOT physical examination on John-
a pool of standing water while driving under                 son, found that Johnson had 20/30 vision in his
drizzly and foggy conditions.                                left eye and 20/40 vision in his right eye.
                                                             Karanges also testified that Johnson had an
    James’s van hydroplaned, slid into the me-               overall visual acuity of 20/25 using both eyes,
dian, and rolled over several times, eventually              although this is not determinative of Johnson’s
resting on its side in the middle of northbound              ability to satisfy DOT requirement for
traffic. James was assisted out of her car,                  commercial drivers.
which was left with its black undercarriage
facing south. Troy Johnston, a witness, testi-                   Plaintiffs requested, but did not receive, a
fied that there was a hill preceding the place               negligence per se jury instruction regarding
where the van had settled. Because of this,                  Johnson’s alleged failure to meet vision stan-
Johnston ran to the south to attempt to                      dards for commercial drivers. Plaintiffs did
prevent oncoming traffic from running into the               not object to the refusal to instruct, nor did
van.                                                         they move for judgment as a matter of law
                                                             (“j.m.l.”) at the close of the evidence or before
   The area were the van lay was dark, so                    submission of the case to the jury.
approaching drivers could not see it. Johnson,
a driver for Willamette, approached the ob-                      Plaintiffs state that the district court failed
struction caused by the van and was unable to                in its gate-keeping function by allowing Kar-
avoid impact. Freddy Walden, another wit-                    anges to testify concerning Johnson’s vision.
ness, testified that from his vantage point he               Plaintiffs also contend that the failure to give
saw nothing that Johnson could have done to                  the negligence per se instruction is plain error.
avoid the wreck. After the collision, John-                  Next, plaintiffs allege that trial counsel was ill,
son’s truck went across the median and came                  and this was the reason for the failure to object
to rest blocking southbound traffic. Immedi-                 to the lack of an instruction. Furthermore,
ately, Powers collided with Johnson’s trailer,               plaintiffs believe that attorney misconduct
injuring Powers.                                             prejudiced the proceedings, so they are entitled
                                                             to a new trial. Finding no error, we affirm.

                                                                                   I.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                                Evidentiary questions are reviewed for
termined that this opinion should not be published and       abuse of discretion. Graef v. Chem. Leaman
is not precedent except under the limited circum-            Corp., 106 F.3d 112, 116 (5th Cir. 1997).
stances set forth in 5TH CIR. R. 47.5.4.

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Even if a court improperly admits evidence,               record, it was reasonably calculated to and
the judgment must be affirmed unless the rul-             probably did cause the rendition of an improp-
ing affects substantial rights of the complaining         er verdict. Reinhart v. Young, 906 S.W.2d
party. Bocanegra v. Vicmar Servs., Inc., 320              471, 473 (Tex. 1995).
F.3d 581, 584 (5th Cir.), cert. denied, 124 S.
Ct. 180 (2003).                                               Negligence per se is a concept whereby a
                                                          legislatively imposed standard of conduct is
   Consequently, plaintiffs’ argument that                adopted by the civil courts as defining the con-
Karanges was improperly allowed to provide                duct of a reasonable and prudent person.
testimony regarding Johnson’s vision is with-             Carter v. William Sommerville & Son, Inc.,
out merit. The district court was in a better             584 S.W.2d 274, 278 (Tex. 1979). For negli-
position to decide the admissibility of testi-            gence per se, there must be (1) a violation of
mony concerning Johnson’s ability to meet the             a legislative enactment, (2) that is unexcused.
requirements of a commercial driver. More-                Parrott v. Garcia, 436 S.W.2d, 897 (Tex.
over, the ruling did not substantially affect             1969). Negligence per se provides only a way
plaintiffs’ rights.                                       of proving duty and breach of duty, and causa-
                                                          tion and damages must still be established. Id.
                        II.
   Plaintiffs allege that it was plain error not to          Thus, the plaintiff must still prove proxi-
include a negligence per se instruction in the            mate causation, El Chico Corp. v. Poole, 732
jury charge. There are three requirements to              S.W.2d 306, 313 (Tex. 1987), which includes
challenge jury instructions. First, the appellant         the elements of cause in fact and foreseeability,
must show that viewed as a whole, the charge              Exxon v. Quinn, 726 S.W.2d 17, 21 (Tex.
creates “substantial and ineradicable doubt               1987). To be a cause-in-fact of the accident,
whether the jury has been properly guided in              a potential tortfeasor’s acts or omissions must
its deliberations.”       Taita Chem. Co. v.              have been substantial factors in causing the ac-
Westlake Styrene, LP, 351 F.3d 663, 667 (5th              cident. N. Am. Van Lines, Inc. v. Emmons, 50
Cir. 2003). Second, even if there is error, we            S.W.3d 103, 114 (Tex. App.SSBeaumont
will not reverse if the error “could not have             2001, pet. denied). Specifically, the acts or
affected the outcome of the case.” Id. Third,             omissions must be factors without which the
the appellant must show that the proffered                accident would not have occurred. Id. The
instruction correctly stated the law. Id. Per-            resolution of conflicting evidence as to proxi-
fection is not required if the instructions given         mate cause and negligence is a matter for the
were generally correct and any error was                  jury. Meadows & Walker Drilling Co. v. Phil-
harmless. Id.                                             lips, 417 F.2d 378, 383 (5th Cir. 1969).

    This standard provides the district court                 The substantive law of Texas defines an
with great latitude. Id. In reviewing instruc-            unavoidable accident as “an event not proxi-
tions, we consider whether the jury was misled            mately caused by the negligence of any party
in any way and whether it understood the                  to it.” Reinhart, 906 S.W.2d at 472. Simi-
issues. Dixon v. Int’l Harvester Co., 754 F.2d            larly, the purpose of the sudden emergency
573, 588 (5th Cir. 1985). Error in the charge             doctrine instruction is to ensure that the jury
is reversible only if, in the light of the entire         will understand that it does “not necessarily


                                                      3
have to find that one of the other parties to the         impaired. The circumstances of the accident
suit was to blame for the occurrence com-                 illustrate that the road conditions, coupled
plained of.” Yarborough v. Berner, 467                    with the position of James’s van following her
S.W.2d 188, 192 (Tex. 1971).                              initial accident with the median, rendered a sit-
                                                          uation that falls into the category of an un-
   The instruction is most often used to in-              avoidable accident or sudden emergency. This
quire about the causal effect of some physical            situation demonstrates that Johnson’s allegedly
connection or circumstance such as fog, snow,             impaired vision was not a substantial factor in
sleet, wet or slick pavement, or obstruction of           the occurrences that caused Powers eventually
view. Reinhart, 906 S.W.2d at 472. Regard-                to hit Johnson’s tractor-trailer.
ing the sudden emergency defense, “by the
term emergency as used in this charge, is                    The matter of Johnson’s vision was prop-
meant a condition arising suddenly and unex-              erly decided by the jury in light of the conflict-
pectedly and not proximately caused by any                ing evidence presented by each side. Specifi-
negligent act or omission of the person in                cally, defendants presented evidence that the
question and which calls for immediate action             causal effect of drizzle and fog, combined with
on his part and without time for deliberation.”           the sudden emergency of James’s obstructing
Goolsbee v. Tex. & New Orleans R.R., 243                  van, led to the accident, while the plaintiff’s
S.W.2d 386, 388 (Tex. 1951).                              argued that Johnson’s vision was the cause.
                                                          Accordingly, the jury was properly left to
    The mere fact that the legislature adopts a           determine the issue.
criminal statute does not mean that this court
must accept it as a standard for civil liability.                                 III.
Carter v. William Sommerville & Son, Inc.,                    Plaintiffs contend they should not have to
584 S.W.2d 574, 278 (Tex. 1979). The                      suffer for their counsel’s error in failing to ob-
threshold questions in every negligence per se            ject to the jury instruction. Where a party fails
case are whether the plaintiff belongs to the             to make timely objections to the proposed in-
class that the statute was intended to protect            structions and questions, the plain error stan-
and whether his injury is of a type that the              dard of review applies. J.C. Motor Lines, Inc.
statute was designed to prevent. Perry v. S.N.,           v. Trailways Bus Sys., Inc., 689 F.2d 599, 602
973 S.W.2d 301, 305 (Tex. 1998). Then, the                (5th Cir. 1982); Fredonia Broadcasting Corp.
court must determine whether it is appropriate            v. RCA Corp., 481 S.W.2d 781, 796 (5th Cir.
to impose tort liability for violation of the stat-       1973); FED. R. CIV. P. 51.
ute. Id. An indirect relationship between vio-
lation of a statute and the plaintiff’s ultimate              One may not complain of a jury instruction
injury is a factor against imposing tort liability.       “unless that party objects thereto, stating dis-
Id. at 309.                                               tinctly the matter objected to and the grounds
                                                          of the objection.” Taita Chem. Co., 351 F.3d
    In light of the conflicting testimony, the            at 667. Furthermore, submission of an alter-
failure to include a negligence per se instruc-           native instruction does not necessarily preserve
tion did not ultimately affect the outcome of             error for appeal. Id. One may not sit by with-
the case. The jury was not misled in any way,             out objection to rulings or instructions, and
so its understanding of the issues was not                then after verdict and judgment, and when it is


                                                      4
too late for the court to change its rulings or          for counsel’s failure to object instruction is
charge, come forward with objections on ap-              unavailing. Therefore, we review for plain
peal. Meadows & Walker Drilling Co. v.                   error the refusal to include a negligence per se
Phillips Petroleum Co., 417 F.2d 378, 381                instruction. As noted above, the lack of a jury
(5th Cir. 1969).                                         instruction regarding negligence per se did not
                                                         result in a miscarriage of justice.
   Even if the challenger proves the instruc-
tions misguided the jury, we reverse only if the            A negligence per se jury instruction still
erroneous instruction affected the outcome of            would have left the jury to determine whether
the case. Thomas v. Tex. Dep’t of Crim.                  Johnson’s controversial vision or the emer-
Justice, 297 F.3d 361, 365 (5th Cir. 2002).              gency situation in which he was presented on
To meet this standard, a party must show “(1)            the morning of the accident was the cause of
that an error occurred; (2) that the error was           the collision. Accordingly, because plaintiffs’
plain, which means clear or obvious; (3) the             counsel was given fair opportunity to object
plain error must affect substantial rights; and          and on plain error review there was evidence
(4) not correcting the error would ‘seriously            to support the verdict, there is no reversible
affect the fairness, integrity, or public                error.
reputation of judicial proceedings.” Taita
Chem. Co., 351 F.3d at 668. Litigants are                                      IV.
held to a difficult standard of error                        Plaintiffs admonish that, under the plain
preservation for good reason. Id. It requires            error standard, they are entitled to a post-
that objections be made for a possible remedy            verdict j.m.l. A claimant who bears the burden
at the trial court level, saving judicial                of proof and believes he is entitled to j.m.l. is
resources. Id.                                           required to move for j.m.l. before the case is
                                                         submitted to the jury. Flintco, 143 F.3d at
    Reversal based on plain error is “not a run          968; FED. R. CIV. P. 50(a). Failing to move
of the mill remedy.” Highlands Ins. Co. v.               for j.m.l. at the close of the evidence and
Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032            before submission to the jury results in waiver
(5th Cir. 1994). On plain error review, “the             of the right to renew the motion under rule 50
question before this Court is there was any              (b). Id.; 9A CHARLES A. WRIGHT & ARTHUR
evidence to support the jury verdict.” United            R. M ILLER , FEDERAL P RACTICE AND
States ex rel. Wallace v. Flintco, Inc., 143             PROCEDURE § 2536 (2d ed. 1995). If a party
F.3d 955, 963 (5th Cir. 1998). If any evidence           fails to move for j.m.l. under rule 50(a) on an
supports the verdict, the verdict will be upheld.        issue at the conclusion of all the evidence, that
Id. Therefore, so long as the court gives                party waives its right to file a renewed post-
counsel a fair opportunity to object, we will            verdict rule 50(b) motion and its right to chal-
listen to un-objected to rulings only in those           lenge the sufficiency of the evidence on that
handful of cases that can meet the exacting              issue on appeal. Flowers v. Regional Physi-
requirements of plain error. Highlands Ins.              cian Sys., 247 F.3d 229, 238 (5th Cir. 2001).
Co., 27 F.3d at 1032.
                                                            A lawyer who never moves for j.m.l. must
   Plaintiffs’ argument that trial counsel was ill       realize that a subsequent motion for j.m.l. can
and that Powers should not be forced to pay              be granted only if plain error can be estab-


                                                     5
lished. Flintco, 143 F.3d at 963. The purpose            dence by a party in which an attorney is impli-
of rule 50(a)’s requirement that a motion for            cated, will constitute a fraud on the court. Id.
j.m.l. specify the law and the facts on which            Less serious conduct, such as non-disclosure
the moving party relies “is to assure the re-            to the court of facts allegedly pertinent to the
sponding party an opportunity to cure any de-            matter before it, will not ordinarily rise to the
ficiency in that party’s proof that may have             level of fraud on the court. Id. at 154 (citing
been overlooked until called to the party’s at-          First Nat’l Bank v. Lustig, 96 F.3d 1554, 1573
tention by a late motion for judgment. Id.               (5th Cir. 1996)).
Therefore, we will reverse only if the judgment
complained of results in a manifest miscarriage             The trial court is in a superior position to
of justice. Id.                                          gauge the prejudicial impact of counsel’s con-
                                                         duct. Anheuser-Busch, Inc. v. Natural Bever-
   Consequently, because plaintiffs failed to            age Distribs., 69 F.3d 337, 346 (9th Cir.
move for j.m.l. at the close of the evidence,            1995). A new trial is warranted on the ground
our review of the denial of their subsequent             of attorney misconduct during the trial where
motion for post-verdict j.m.l. is limited to plain       the “flavor of misconduct sufficiently perme-
error. Counsel’s failure to seek j.m.l. limited          ates an entire proceeding to provide conviction
defense counsel’s opportunity to become                  that the jury was influenced by passion and
aware of any possible shortcomings in the                prejudice in reaching its verdict.” Id.
evidence they had presented. Furthermore, on
plain error review there was sufficient evi-                 Review of the denial of a new trial is more
dence to support the verdict. Therefore, j.m.l.          limited than where one is granted. DP Solu-
after the case had been submitted to the jury            tions, Inc. v. Rollins, Inc., 353 F.3d 421 431
was properly denied.                                     (5th Cir. 2003). Our standard of review in this
                                                         situation is “more deferential than our review
                       V.                                of the denial of a motion for [j.m.l.].” Id. To
    Plaintiffs requested a new trial by urging           warrant a new trial, improper comments by
that opposing counsel’s alleged misconduct at            counsel must impair substantial rights and cast
trial caused the jury to be influenced by pas-           doubt on the verdict. Bufford v. Rowan Co.,
sion and prejudice. Courts possess the inher-            994 F.2d 155, 157 (5th Cir. 1993). The con-
ent power “to vacate their own judgments on              duct must be such as gravely to impair the
proof that a fraud has been perpetrated upon             jury’s calm and dispassionate consideration of
the court.” Fierro v. Johnson, 197 F.3d 147,             the case. Dixon v. Int’l Harvester Co., 754
152 (5th Cir. 1999) (citing Chambers v. Nas-             F.2d 573, 586 (5th Cir. 1985).
co, Inc., 501 U.S. 32, 44 (1991)). To establish
fraud on the court, it is necessary to show an               Plaintiffs rely on Anheuser-Busch and Buf-
unconscionable plan or scheme designed to in-            ford as illustrative of cases where attorney
fluence the court improperly in its discretion.          misconduct resulted in the necessity for a new
Id.                                                      trial. These cases, however, are distinguish-
                                                         able from the case at bar. In Anheuser-Busch,
   Generally speaking, only the most egre-               69 F.3d at 350, plaintiff repeatedly lied to de-
gious misconduct, such as bribery of a judge             fendant and the court throughout discovery,
or members of a jury, or the fabrication of evi-         opposition to discovery motions, the trial, and


                                                     6
evidentiary hearings concerning the existence
of documents. In addition, plaintiff’s counsel
repeatedly and impermissibly elicited testimony
regarding matters previously ruled inad-
missible. Id. at 346. This misconduct was
found to have sufficiently prejudiced the jury.
Id.

   Next, in Bufford, 994 F.2d at 157, defense
counsel claimed that plaintiff’s counsel, in his
opening statement and consistently over the
course of the proceedings, had sought to pro-
secute fraudulent claims. In addition, the trial
judge, in the presence of the jury, had threat-
ened plaintiff’s counsel with jail. Id. This
combination led to an unacceptable risk of a
tainted verdict. Id. at 159.

   In contrast, in this case, defendants’ coun-
sel’s actions did not rise to the level of egre-
gious conduct necessary to constitute fraud on
the court. Specifically, plaintiffs cite testimony
in which defendants’ counsel mentions a police
report, recounts the fact that plaintiffs’ experts
were being paid, notes that plaintiffs had also
brought suit against James, and states that
Powers had become unhappy with the doctors
whom his lawyer helped him to find. These
actions by counsel do not illustrate an
unconscionable plan or scheme. Defendants’
counsel’s actions can be seen as zealous advo-
cacy but did not rise to the level of impairing
the consideration of the case by the jury.
Therefore, a new trial was not warranted.

   AFFIRMED.




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