                     UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                           __________________

                               No. 91-7010
                           __________________



     MARIE BLACK, Individually and as
     representative of RANDY A. BLACK,
     PAM BLACK GUM, KITTY BLACK, adults,
     and WILLIAM A. BLACK and TAMMY BLACK,
     minors, the sole and only heirs at
     law of ROMIE BLACK,

                                           Plaintiffs-Appellants,

                                 versus

     J. I. CASE COMPANY, INC.,

                                           Defendant-Appellee.

           ______________________________________________

      Appeal from the United States District Court for the
                Northern District of Mississippi
         ______________________________________________

                            May 27, 1994


Before GARWOOD    and    HIGGINBOTHAM,     Circuit   Judges,   SCHWARTZ*,
District Judge.

GARWOOD, Circuit Judge:

     This is a Mississippi diversity case arising from the death of

Romie Black (Decedent) who was killed in an accident involving a

backhoe.       His      successors,   plaintiffs-appellants       herein

(collectively, the Blacks), appeal the judgment on the jury verdict

in favor of defendant-appellee J.I. Case Company, Inc. (Case).        We



*
     District Judge of the Eastern District of Louisiana, sitting
by designation.
affirm.

     This appeal was previously considered by another panel of this

Court which issued an opinion affirming the judgment below.   This

earlier opinion was subsequently withdrawn and vacated.1   Black v.

J.I. Case Co., 973 F.2d 1226, 1227-1231 (5th Cir. 1992).        It

appears likely that the withdrawal was because of a perceived

uncertainty concerning the propriety of reviewing an interlocutory

order denying summary judgment on an appeal following trial on the

merits and final judgment based thereon adverse to the summary

judgment movant.2   We now conclude that this Court will not review

the pretrial denial of a motion for summary judgment where on the

basis of a subsequent full trial on the merits final judgment is

entered adverse to the movant.3



1
     The prior panel thereupon assigned the case to the calendar,
and in due course it was reassigned to this panel.
2
     It seems that the perceived conflict was likely with Satcher
v. Honda Motor Co., 984 F.2d 135 (5th Cir. 1993). In Satcher,
this Court reviewed and reversed the district court's denial of
the defendant's summary judgment motion, after the defendant
received an adverse judgment following trial on the merits. Id.
at 137. However, the original Satcher opinion has also been
vacated and withdrawn, and it has been replaced by Satcher v.
Honda Motor Co., 993 F.2d 56 (5th Cir. 1993). The new Satcher
opinion does not address the issue of whether a denied summary
judgment motion should be reviewed on appeal after a full trial
on the merits.
3
     This decision in no way affects our holdings regarding a
district court's interlocutory determinations that are subject to
immediate review such as its ruling concerning a party's partial
or total immunity from suit. See, e.g., Spann v. Rainey, 987
F.2d 1110 (5th Cir. 1993); Mobil Corp. v. Abeille General Ins.
Co., 984 F.2d 664 (5th Cir. 1993); Williams v. Collins, 728 F.2d
721 (5th Cir. 1984). Nor does it concern our decisions reviewing
denied motions for summary judgment where the district court
granted the opposing party's summary judgment motion. See Ranger
Ins. Co. v. Estate of Mijne, 991 F.2d 240, 241 (5th Cir. 1991).

                                  2
                        Facts and Proceedings Below

      On September 13, 1986, Decedent was killed while operating a

backhoe loaned to him by Case when the machine rolled over and               his

head struck one of the posts which supported the backhoe's canopy.

On   March   26,   1990,   the   Blacks,    as    successors    to   Decedent's

interest, brought this suit against Case.            They subsequently filed

a motion for partial summary judgment as to liability for breach of

an implied warranty of merchantability, failure to warn of latent

defects, failure to instruct the operator on the safe operation of

the machine, and failure to inspect.             Case opposed the motion for

summary judgment, contending that it did not cause the accident,

but rather that the Decedent's death was caused by his operation of

the backhoe on too steep a slope while not wearing a seatbelt.

Case, however, did not submit any summary judgment evidence to

support its position, but rather relied on the Blacks' summary

judgment     evidence    which   included    answers     to    interrogatories

indicating    Case's    anticipated   expert       testimony    at   trial   and

affidavits of Case's employees.            The district court denied the

Blacks' partial summary judgment motion noting that their own

evidence created factual disputes as to each asserted theory, and

that, in any event, the court had the power to deny summary

judgment where it thought "the better course would be to proceed to

trial."

      The case was subsequently fully tried on the merits.               At the

close of all the evidence, the Blacks made a motion for a directed

verdict which the district court denied. The jury thereafter found

for Case.     The Blacks then filed for judgment notwithstanding the

                                      3
verdict (j.n.o.v.) or for a new trial.      These motions were also

denied by the district court.      The Blacks now bring this timely

appeal, arguing that the district court erred in denying their

motion for partial summary judgment, and that it also erred in

several other respects.   We affirm.

                            Discussion

I.   Motion for Summary Judgment

     The Blacks first argue that the district court erred in

denying their motion for partial summary judgment because Case

failed to present any evidence to create a disputed fact issue.

Based on earlier precedent of this Court and other circuits, the

Rules of Federal Civil Procedure, the discretion of district courts

in this area, and other prudential concerns, we agree with the

prior panel's conclusion that this order should not be reviewed.

     This Court has already held that an interlocutory order

denying summary judgment is not to be reviewed where final judgment

adverse to the movant is rendered on the basis of a subsequent full

trial on the merits.   See Wells v. Hico ISD, 736 F.2d 243, 251 n.9

(5th Cir. 1984), cert. dismissed, 106 S.Ct. 11 (1985); Zimzores v.

Veterans Administration, 778 F.2d 264, 267 (5th Cir. 1985).4     In


4
      Only one case, in dicta, has suggested by inference that an
interlocutory order denying summary judgment is reviewable. See
Dickinson v. Auto Center Mfg., Co., 733 F.2d 1092 (5th Cir.
1983). There, this Court rightly held that it could review the
district court's order overruling the appellant's motion for a
directed verdict at the close of the evidence. Id. at 1102; see
FED. R. CIV. P. 50(d). However, in nonbinding dicta, the
Dickinson court noted that "a party may obtain review of
prejudicial adverse interlocutory rulings upon his appeal from
adverse final judgment." Id. This over-broad dicta might imply
that all interlocutory ordersSQincluding denials of motions for
summary judgmentSQmay be reviewed on appeal. However, the

                                   4
Wells,    the   defendants-appellants   suffered   an    adverse   judgment

entered on the jury's verdict following full trial on the merits,

and prior to trial the district court had denied their motion for

summary judgment on the question whether the plaintiffs-appellees

had a property interest in their teaching positions.          736 F.2d at

251. We held that the district court's rulings denying the summary

judgment motions could not be reviewed because, "Once trial began,

the summary judgment motions effectively became moot."         Id. at 251

n.9.     Similarly, in Zimzores, we declined to review the denial of

the    plaintiff-appellant's   motion    for   summary    judgment   which

contended that there existed no factual dispute as to liability.

We noted that "it is particularly difficult to understand how the

ends either of justice or of orderly procedure would be furthered

were we to hold that the plaintiff is entitled to summary judgment

when the facts adduced at the full trial on the merits adequately

support the findings and judgment for the defendants." 778 F.2d at

267.   By reaffirming our rule announced in these cases that orders

denying summary judgment motions will not be reviewed in such

circumstances, we remain in harmony with the overwhelming majority

of other circuits which have considered the issue.          See Bottineau

Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064,

1068-69 n.5 (8th Cir. 1992); Lum v. City of Honolulu, 963 F.2d

1167, 1170 & n.1 (9th Cir.), cert. denied, 113 S.Ct. 659 (1992);



decision does not discuss any other interlocutory rulings. Such
an unexplained generalization is nonbinding in the face of this
Court's specific holdings to the contrary. See, e.g., Nicor
Supply Ships Associates v. General Motors, 876 F.2d 501, 506 (5th
Cir. 1989).

                                   5
Summit Petroleum v. Ingersoll-Rand, 909 F.2d 862, 865 n.4 (6th Cir.

1990); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990);

Locricchio v. Legal Services Corp., 833 F.2d 1352, 1359 (9th Cir.

1987); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 & n.14

(Fed. Cir. 1986), cert. dismissed, 107 S.Ct. 1262 (1987); Boyles

Galvanizing & Plating Co. v. Hartford Accident & Indemnity Co., 372

F.2d 310, 312 (10th Cir. 1967).5


5
     One circuit has decided a case that could be read as
supporting a dual system for evaluating denied motions for
summary judgment in such circumstances. See Holley v. Northrop
Worldwide Aircraft Services, Inc., 835 F.2d 1375, 1378 & n.7
(11th Cir. 1988). Under this dichotomy, if the motion were
denied on "factual" grounds (e.g., no evidence as to an element
required under governing law), then the order should not be
reviewable. However, if the motion were denied on "legal"
grounds (e.g., the elements that must be proven under governing
law), then that determination should be reviewable. The first
problem with fashioning this dichotomy is that the Wells court
refused to review a summary judgment motion that was at least
arguably based on "legal" groundsSQwhether the plaintiffs had a
property interest in their teaching positions. 736 F.2d at 251
n.9. Second, even if this issue had not already been foreclosed
in this Circuit, another difficulty with such a system is
distinguishing between "factual" and "legal" issues. All summary
judgments are rulings of law in the sense that they may not rest
on the resolution of disputed facts. We recognize this by our de
novo standard of reviewing summary judgments. See, e.g., Green
v. Touro Infirmary, 992 F.2d 537, 538-39 (5th Cir. 1993); Moore
v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir. 1993); Davis v.
Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir. 1991).
Moreover, our ability to distinguish such "factual" and "legal"
issues will be hampered in instances (which are by no means rare)
where the district court gives no, or only very generalized,
reasons for denying the motion. In any event, such a dual
approach would require us to craft a new jurisprudence based on a
series of dubious distinctions between law and fact. And, such
an effortSQadded to the tasks of already overburdened courts of
appealSQwould benefit only those summary judgment movants who
failed to properly move for judgment as a matter of law at the
trial on the merits. FED. R. CIV. P. 50. If such motions are
properly made, the denied motion for summary judgment need not be
reviewed, because the "legal" issues determined by the district
court are freely reviewable, and the case may be reversed and
rendered on that basis. See, e.g., Knowlton v. Greenwood ISD,
957 F.2d 1172, 1177-78 (5th Cir. 1992); Cotton Bros. Baking Co.

                                   6
       Furthermore, the rule reaffirmed today is in keeping with

Federal Rules of Civil Procedure 50(a) and (b), and our related

jurisprudence.      We have long recognized that where a party has a

judgment rendered against him based on an adverse jury verdict,

judgment may not be rendered for him on appeal (and j.n.o.v. in his

favor may not be granted) unless that party has moved for a

directed verdict in the district court.           See, e.g., Hinojosa v.

City of Terrell, 834 F.2d 1223, 1228 (5th Cir. 1988), cert. denied,

110 S.Ct. 80 (1989); McConney v. City of Houston, 863 F.2d 1180,

1186-88 (5th Cir. 1989); see also Johnson v. New York, N.H. & H.R.,

Co., 73 S.Ct. 125, 128 (1952).         However, reviewing on appeal a

pretrial denial of a motion for summary judgment would circumvent

this rule by allowing us to reverse and render even when no motion

for directed verdict and motion for j.n.o.v. had been made at

trial.     If such motions have been made, their denial can be

reviewed on appeal and there is no good reason to also review the

pretrial denial of the same party's motion for summary judgment.

       To review pretrial denials of summary judgment motions would

also     diminish   the   discretion   of   the    district   court,   in

contravention of our jurisprudence and that of the Supreme Court.

The Supreme Court has recognized that, even in the absence of a

factual dispute, a district court has the power to "deny summary

judgment in a case where there is reason to believe that the better

course would be to proceed to a full trial."         Anderson v. Liberty



v. Indus. Risk Insurers, 941 F.2d 380, 390-91 (5th Cir. 1991),
cert. denied, 112 S.Ct. 2276 (1992); Nesmith v. Alford, 318 F.2d
110, 118 (5th Cir. 1963), cert. denied, 84 S.Ct. 489 (1964).

                                   7
Lobby, Inc., 106 S.Ct. 2505, 2513 (1986). We, too, have recognized

that (except in cases of qualified or absolute immunity) a district

court "has the discretion to deny a [motion for summary judgment]

even if the movant otherwise successfully carries its burden of

proof if the judge has doubt as to the wisdom of terminating the

case before a full trial."   Veillon v. Exploration Services, 876

F.2d 1197, 1200 (5th Cir. 1989); see also Marcus v. St. Paul Fire

& Marine Ins., 651 F.2d 379, 382 (5th Cir. 1981).    If we were to

review denied motions for summary judgment, the district court

would no longer have this discretion.

     Finally, prudential concerns argue against reviewing such

motions.   To review the pretrial denial of a motion for summary

judgment, we would have to review two different sets of evidence:

the "evidence" before the district court at pretrial when it denied

the motion, and the evidence presented at trial.    Of course, the

"evidence" presented at pretrial may well be different from the

evidence presented at trial. It makes no sense whatever to reverse

a judgment on the verdict where the trial evidence was sufficient

merely because at summary judgment it was not.6     As we noted in


6
     This seems to be the Blacks' motivation in asking us to
review their denied summary judgment motion. They made a motion
for directed verdict and j.n.o.v., so any points of error
concerning the district court's decisions regarding the
applicable law or insufficient trial evidence are freely
reviewable. See Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969).
It makes no difference whether we review the district court's
"legal" decisions under the rubric of the denied summary judgment
or the directed verdict motion. See Hamilton v. Grocers Supply
Co., 986 F.2d 97, 98 (5th Cir. 1993) (noting that "[t]he standard
of review for a directed verdict is the same as that for review
of a summary judgment"). Rather, the Blacks obviously hope that
we will reverse based on the embryonic facts that existed before
trial, as opposed to the fleshed-out facts developed at trial.

                                8
Woods v. Robb, 171 F.2d 539 (5th Cir. 1948):    "The saving of time

and expense is the purpose to be attained by a summary judgment in

a proper case.   When in due course the final trial is had on the

merits it becomes the best test of the rights of the movant.     If he

wins on trial he has his judgment.   If he loses on a fair trial it

shows that he ought not to have any judgment."     Id. at 541.    For

all of these reasons, we are firmly convinced that the better

course is to decline to review the district court's denial of

motions for summary judgment when the case comes to us on the

movant's appeal following adverse judgment after full trial on the

merits.

II.   Remaining Issues

      The Blacks argue that the district court also erred by:     (1)

refusing to grant their motion for directed verdict; (2) allowing

Case to amend the pretrial order to allege that the accident was

caused by the sole negligence of Decedent; (3) refusing to allow

testimony regarding the position of the backhoe's boom at the time

of the accident; (4) instructing the jury regarding Decedent's

misuse of the backhoe; and (5) refusing to allow the jury to

consider awarding punitive damages. Having reviewed the record and

briefs, we conclude that the prior panel opinion correctly disposed

of and adequately addresses all these issues, none of which are of

a precedential nature or otherwise appropriate for publication.

      We would merely add that as to the first issue, the Blacks, in

support of their contention that the district court should have

granted their motion for directed verdict because of insufficient

evidence, point to the recent Mississippi Supreme Court decision in

                                 9
Sperry-New Holland v. Prestage, 617 So.2d 248 (Miss. 1993).                           The

Sperry    court     adopted      a    "risk-utility"         analysis    for     products

liability cases.           Id.       at 256.       The district court here, in

accordance      with    our   precedent,          used   a   "consumer-expectations"

analysis     in    trying     the      Blacks'       products       liability     theory.

Consistent with this analysis, Case relied, in part, on the "open

and obvious" defense.         The Blacks argue that this defense does not

exist under the "risk-utility" analysis.                     As noted by the Sperry

court, such a defense is now "simply a factor to consider in

determining whether a product is unreasonably dangerous."                          Id. at

256 n.4.     However, what has not changed is the Blacks' burden to

prove    under     a    products      liability      theory     that    the     defective

condition caused the physical harm to the ultimate user or consumer

of the product.         Id. at 253.      Here, the evidence was not such as to

require the jury to find that the defective condition was a cause

of Decedent's injuries.7              Therefore, the change in analysis does

not establish that the district court erred in denying the Blacks'

motion for directed verdict.

     As    to     the   second       issue   concerning       the    district     court's

allowing Case to amend the pretrial order on the first day of

trial, the Blacks claim that they were unfairly surprised because

the amendment added a new defense.8                  However, the district court


7
     The Blacks, in a separate point of error, argue that Case
should be foreclosed from arguing that Decedent was the sole
proximate cause of his death. We disagree for the reasons stated
in the prior opinion.
8
     This alleged new defense is that Case would seek to show
that Decedent was the sole proximate cause of his death instead
of a proximate cause. This did not affect the Blacks' calculus

                                             10
offered the Blacks a continuance which they declined.       Where a

party claims unfair surprise "the granting of a continuance is a

more appropriate remedy than exclusion of the evidence."     FED. R.

EVID. 403 advisory committee's note.   If the Blacks were prejudiced

by unfair surprise, the district court's offer of a continuance

rectified any error that might have occurred.    See F & S Offshore,

Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104, 1108 (5th Cir.

1981) (holding that the district court did not abuse its discretion

in admitting new evidence where the complaining party "failed to

urge a motion for continuance in response to what they now contend

is unfair surprise").

                            Conclusion

     Accordingly, the judgment of the district court is

                                                          AFFIRMED.




of the types of evidence they would have to refute, and it did
not interject a new issue into the proceeding. We also note that
this Court has stated it has "limited reversible error from
unfair surprise to situations where a completely new issue is
suddenly raised or a previously unidentified expert witness is
suddenly called to testify." F & S Offshore, 662 F.2d at 1108
(citing Shelak v. White Motor Co., 581 F.2d 1155 (5th Cir.
1078)). Neither of these conditions obtain here. We need not
determine whether in special circumstances we might go beyond the
categories mentioned in F & S Offshore, for here there is
certainly no strong showing of unfairness or prejudice.

                                11
