Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 927077.
James DAWSON, PlaintiffAppellant,
v.
WALMART STORES, INC., Et. Al., DefendantsAppellees.
Nov. 27, 1992.
Appeal from the United States District Court for the Northern District of Mississippi.
Before JONES, BARKSDALE, Circuit Judges, and JUSTICE,1 District Judge.
JUSTICE, District Judge:
Plaintiff James Dawson, an AfricanAmerican man, asserts that he suffered a back injury in
the store of defendant WalMart Stores, Inc. ["WalMart"] when a rattan display chair in which he
was sitting collapsed. At trial, the district court sustained Dawson's request for a peremptory
instruction regarding WalMart's liability for selling a product in a defective condition, unreasonably
dangerous for its intended use. The only issue submitted to the jury was the amount of damages, if
any, suffered by the plaintiff and caused by the defect ive chair. The jury found for WalMart.
Dawson filed post-trial motions challenging the district court's compliance with the Jury Selection and
Service Act, 28 U.S.C. § 1861, et seq., and demanding judgment notwithstanding the verdict
("JNOV"), or, in the alternative, a new trial on the issue of damages. Both motions were denied by
the district court. 781 F.Supp. 1166. Finding no reversible error, we affirm.
I. Dawson's Motion for JNOV or New Trial.
On January 6, 1988, plaintiff James Dawson, while shopping at WalMart in Clarksdale,
Mississippi, sat in a rattan rocker. As he seated himself, the chair fell apart and collapsed to the
concrete floor. Dawson went to a physician the next day complaining of back pain. He was
examined and released by the physician. Approximately a week after the accident, Dawson was
hospitalized for back pain. Surgery was performed on his back approximately six months after the
1District judge of the Eastern District of Texas, sitting by designation.

incident. Dawson missed work during this time period and has not returned to the job he held at the
time of the incident.
The neurosurgeon who treated Dawson, Jerry Engelberg, M.D., testified that the fall could
have traumatized Dawson's spinal nerves and aggravated a preexisting condition of lumbar spinal
stenosis. Dr. Engelberg could not state with a reasonable degree of medical certainty that the fall was
the cause of Dawson's injury or the cause of an aggravation of a preexisting injury.2 James Galyon,
M.D., the medical expert called by WalMart, reviewed Dawson's medical records and testified that
Dawson had had episodes of back problems beginning in 1967. He further testified that the fall could
not have produced the symptoms experienced by Dawson and noted by Dr. Engelberg at the time of
the surgery. Dr. Galyon also stated that the symptoms were consistent with progressive degenerative
changes which had taken place over a long period of time.
At Dawson's request, the district court instructed the jury that the defendant, WalMart,
offered for sale a chair which was in a defective condition and unreasonably dangerous to the user
or consumer, and that when Dawson was invited to sit in it, the chair fell apart, causing Dawson to
hit his back and neck. The court further instructed the jury that the verdict should be for the plaintiff,
if the jury found from a preponderance of the evidence that the condition of the chair proximately
caused or contributed to the plaintiff's injury. The jury returned a general verdict for WalMart.
Dawson moved for JNOV3 or, alternatively, for a new trial on the issue of damages. In
support of the motions, Dawson argued that (1) the evidence was uncontradicted that Dawson was
injured when the chair collapsed, and (2) the verdict was tainted because three members of the final
jury panel exhibited a close relationship with defense counsel.
2A plaintiff bringing an action under theories of strict liability, breach of warranty, or
negligence bears the burden of proving that the injury was proximately caused by the acts or
omissions of the defendant. Washington v. Armstrong World Industries, Inc., 839 F.2d 1121,
1123 (5th Cir.1988). Plaintiff must prove to a reasonable degree of medical certainty that the
injury was caused by the defendant's act. Bernhardt v. RichardsonMerrell, Inc., 723 F.Supp.
1188, 119092 (N.D.Miss.1988), aff'd, 892 F.2d 440 (5th Cir.1990).
3Rule 50 of the Federal Rules of Civil Procedure, pertaining to motions for directed verdict
and judgment notwithstanding the verdict, was amended, effective December 1, 1991. The new
Rule 50 effected no change in the existing standard, but renamed the motion as one for judgment
as a matter of law. Fed.R.Civ.P. 50(a) advisory committee's note (1991 amendment).

A. The sufficiency of the evidence.
A district court's ruling on a motion for new trial is reviewed for abuse of discretion. Munn
v. Algee, 924 F.2d 568, 577 (5th Cir.), cert. denied, U.S. , 111 S.Ct. 277, 116 L.Ed.2d 229
(1991); Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362 (5th Cir.1980) (citing
Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir.1976)). The abuse of discretion standard
recognizes the deference that is due the trial court's first-hand experience of the witnesses, their
demeanor, and the over-all context of the trial. Conway, 610 F.2d at 362.
The reviewing court gives somewhat greater deference when the district court has denied the
new trial motion, Munn, 924 F.2d at 577; Jones v. WalMart Stores, Inc., 870 F.2d 982, 986 (5th
Cir.1989), and left the jury's determinations undisturbed. Conway, 610 F.2d at 362 (citing Valley
View Cattle Co. v. Iowa Beef Processors, 548 F.2d 1219 (5th Cir.), cert. denied, 434 U.S. 855, 98
S.Ct. 174, 54 L.Ed.2d 126 (1977)). New trials should not be granted on evidentiary grounds unless,
at a minimum, the verdict is against the great weight of the evidence. Id. at 363.
In diversity cases such as this, even though state law determines the type of evidence that
must be produced to support a verdict, the sufficiency or insufficiency of the evidence in relation to
the verdict is governed by a federal standard. Jones, 870 F.2d at 986. The federal standard mandates
that all the evidence must be viewed in a light most favorable to the jury's verdict, and that the verdict
must be affirmed unless the evidence points so strongly and overwhelmingly in favor of one party that
the court believes that reasonable persons could not arrive at a contrary conclusion. Id. at 987.
The issue for the jury in the present case was not one of damages, as Dawson alleges, but of
causation--did Dawson prove by a preponderance of the evidence that the defective condition of the
chair proximately caused or contributed to his injuries? Only if this question was answered in the
affirmative would the jury need to reach the issue of damages. Both parties submitted evidence on
the issue of causation, and, after weighing the conflicting evidence and making credibility
determinations, the jury found for WalMart.4 The fact that there was conflicting testimony regarding
4In support of his argument that a new trial on the issue of damages should have been granted,
Dawson cites numerous cases where the jury found for the plaintiff but awarded inadequate
damages or no damages at all. See, e.g., Evans v. H.C. Watkins Memorial Hospital, Inc., 778

causation and damages is not grounds for granting a new trial. Conway, 610 F.2d at 367. Where the
jury could have reached a number of different conclusions, all of which would have sufficient support
based on the evidence, the jury's findings will be upheld.
B. The Integrity of the Jury Panel.
Dawson asserts that three members of the jury panel had a close relationship with defense
counsel and were therefore unable to render an impartial verdict. However, Dawson's counsel did
not challenge any of the three persons for cause, nor did he use any of his peremptory challenges to
strike them. The trial transcript reveals that Dawson was given a fair opportunity to question each
juror on voir dire and to remove them from the venire, but that he chose to exercise his challenges
on others. When the basis for challenge to a juror is timely shown, the failure to object constitutes
a waiver of the right to attack the composition of the jury. See United States v. Reis, 788 F.2d 54,
59 (1st Cir.1986); United States v. DiazAlbertini, 772 F.2d 654, 657 (10th Cir.1985), cert. denied,
484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987).
We conclude that the verdict for the defendant, WalMart, was supported by the evidence
and that the district court was correct in denying plaintiff's motion for JNOV or new trial.
II. Dawson's Challenge to the Jury Selection.
Dawson's request for a venire composed of persons from the Delta Division of the Northern
District of Mississippi was granted by the district court. Approximately two weeks before the trial,
the court furnished co unsel with a proposed jury list consisting of seventy-five individuals.
Twenty-five persons listed were black. Twenty-two persons were drawn from the list on the day of
trial to compose the venire. Only three of the persons chosen for the venire were black, and one of
the three was excused before coming to court that morning. Persons who were excused were let go
in large part for reasons relating to the hardship of transportation, i.e., the persons selected from the
Delta Division were required to travel to Oxford, Mississippi, which is in the Western Division, for
F.2d 1021 (5th Cir.1985); McKinzie v. Fleming, 588 F.2d 165 (5th Cir.1979); Givens v.
Lederle, 556 F.2d 1341 (5th Cir.1977); Burlingame v. Southwest Drug Stores of Miss., Inc., 203
So.2d 74 (Miss.1967). These cases are inapposite where the jury found for the defendant, as they
did in the present case.

trial.
In a post-trial motion, Dawson challenged compliance with jury selection procedures under
the Jury Selection and Service Act, 28 U.S.C. § 1861, et seq., alleging that the selection of the jury
was tainted by racial and economic discrimination. Dawson did not move to stay the proceedings for
failure to comply with the Act before or during voir dire. Dawson did not challenge any jurors for
cause, nor did he object to defense counsel's peremptory challenge of one of the remaining black
jurors.
28 U.S.C. § 1867(c) provides:
In civil cases, before the voir dire examination begins, or within seven days after the party
discovered or could have discovered, by the exercise of diligence, the grounds thereof,
whichever is earlier, any party may move to stay the proceedings on the ground of substantial
failure to comply with the provisions of this title in selecting the petit jury.
This court has held that section 1867 precludes any statutory challenges to irregularities in
jury selection that are not made before voir dire. United States v. De AlbaConrado, 481 F.2d 1266,
1269 (5th Cir.1973). Moreover, the statute does not contemplate that a new trial could be granted
for a violation of the Act, "since the only remedy provided is a stay in the proceedings until a jury can
be selected in conformity with the statute." Arbuckle Broadcasters, Inc. v. Rockwell International
Corp., 513 F.Supp. 407, 410 (N.D.Tex.1980). Thus, Dawson's post-trial statutory challenge to the
jury selection procedure is foreclosed.
However, "forfeiture of the statutory claim in no way affects the sanctity of a defendant's due
process right to be tried by a jury drawn from a fair cross section of the community." McGinnis v.
M.I. Harris, Inc., 486 F.Supp. 750, 755 (N.D.Tex.1980) (citing United States v. Kennedy, 548 F.2d
608, 61314 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977)). The use
of peremptory challenges to exclude prospective jurors because of race violates the Equal Protection
Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986). This principle applies to civil cases as well as criminal. Edmonson v. Leesville Concrete
Co., Inc., U.S. , , 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991).5
5The District Court noted that, at the time of trial, the Fifth Circuit operated under the holding
that Batson did not apply in civil trials. Edmonson v. Leesville Concrete Co., 895 F.2d 218 (5th

Constitutional objections to the seating of a jury must be made promptly. United States v.
Erwin, 793 F.2d 656, 667 (5th Cir.), cert. denied, 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590
(1986). Dawson did not raise a constitutional challenge to the jury selection procedure in his motion
for new trial or his appellate briefs; nor did he object to the composition of the jury panel at trial.
Even if Dawson had raised this issue before the district court in his motion for new trial and had
asserted it on appeal, a post-trial challenge to the composition of the jury is untimely and therefore
barred. Munn v. Algee, 730 F.Supp. 21, 29 (N.D.Miss.1990), affirmed, 924 F.2d 568 (5th Cir.1991).
See Erwin, 793 F.2d at 667 (Batson challenges should be made before the unselected veniremen are
released).
Accordingly, the judgment of the district court is, in all respects,
AFFIRMED.

Cir.1990) (en banc). The United States Supreme Court reversed this decision after trial in the
present case, but before the District Court rendered its opinion and order on Dawson's post-trial
motions. U.S. , 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). We need not reach the issue
of whether the Supreme Court's decision in Edmonson should be retroactively applied to the case
on appeal, because, as discussed below, we find that Dawson's failure at trial to raise a
constitutional challenge to the jury selection procedure bars any challenge on appeal.