In RSBCO v. United States, the Fifth Circuit confronted a charge issue, called “a Casteel problem” in Texas state practice. The question was whether RSBCO established an excuse for late-filed tax returns, and the jury questions were as follows:

The jury answered “yes” to both questions. The problem emerged because the “mitigators” instruction for the second question was correct, but the “impediments” instrution was not. Therefore:

“Given the form’s single yes-or-no question as to mitigators ‘and/or’ impediments, there is no way logically to reconcile the verdict form to contain the improper instruction. Thus, the ‘challenged instruction could [well] have affected the outcome of the case,’ so we must vacate the verdict and remand for a new trial.”

No.  23-30062 (June 13, 2024) (citation omitted).

In an instructive review of a products-liability judgment based on expert testimony and a hotly disputed jury instruction, the Fifth Circuit affirmed in Kim v. American Honda Motor Co.:

Honda attempts to escape this jury verdict by arguing the district court erred in three ways: by admitting Plaintiffs’ experts, denying its JMOL motion, and denying its proposed instruction about the nonliability presumption. But it is incorrect on all fronts. The Plaintiffs’ experts based their opinions on reliable methodologies and provided relevant, helpful testimony. As such, there was sufficient evidence for the jury to find Honda liable for the Kims’ injuries. The district court’s application of the Texas statutory presumption of nonliability was also faithful to the statutory text, the precedent of Texas, and the precedent of this Court.

No. 22-40790 (Nov. 7, 2023).

The quesions in Louisiana Newpack Shrimp Co. v. Longhai Indigo Seafood Partners, Inc. was whether Louisiana Newpack (an importer and seller of seafood) owed $995,188.03 to Longhai (a crabmeat exporter) for three orders of crabmeat.

A properly-instructed jury found that the parties did not have a contract, but did have an enforceable “open account” as recognized by Louisiana law. The district court entered judgent for Longhai, but then amended the judgment under Fed. R. Civ. P. 59 to award it nothing.

The Fifth Circuit reversed, noting that Rule 59(e) requires the movant to “clearly establish … a manifest error of law or fact.’ Noting “conflicting case law” in Louisiana on the question whether an open-account claim requires the existence of a contract, the Fifth Circuit held “that it was not a manifest error of law to allow Lonhai to recover on its open account claim.” No. 22-30653 (Aug. 17, 2023, unpublished) (emphasis in original).

The Fifth Circuit didn’t bite on a last-minute attempt to stop a trial in the Allen Stanford litigation, denying a mandamus petition (with memorable language obviously written by Judge Higginbotham despite the “per curiam” designation):

This case is, at minimum, complex, featuring myriad fact-specific issues litigated over the course of nearly a decade and a half through multiple courts. Halting the litigation’s momentum mere days before trial is set to begin would require indisputable clarity as to its necessity. Here, no such need is evident; assisted by able briefing and a review of the record, we are unpersuaded that either petition reaches the high demands of mandamus, or that the movant has satisfied the similar burden of staying the trial….

The four most powerful words from the lips of a United States District Judge are simply “Call your first witness,” and the veteran presiding judge will so state in a few short days.

In re Toronto-Dominion Bank, No. 22-20648 (Feb. 14, 2023). (It could be debated whether those are in fact a trial judge’s most powerful words–a case could be made for “So ordered” or “Your objection is overruled,” for example.)

“When reviewing for abuse of discretion, we will reverse a district court’s refusal to give a requested jury instruction ‘only if the instruction (1) was a substantially correct statement of law, (2) was not substantially covered in the charge as a whole, and (3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the [party’s] ability to present a given [claim].'” (citations omitted). In HTC Corp. v. Telefonaktiebolaget LM Ericsson, while the panel divided 2-1 about whether a requested instruction was accurate, all three judges agreed that the appellant was not “seriously impaired” at trial by its absence. No. 19-40566 (Aug. 31, 2021).

Echeverry v. Jazz Casino Co. illustrates a deferential review of a jury’s work in a case about a property owner’s control of construction work that caused injury. Procedurally, the case reminds that federal court does not strictly follow Texas’s Casteel approach to sufficiency review of multiple-theory cases: “This court employs a harmless-error ‘gloss,’ meaning that if we are ‘totally satisfied’ or ‘reasonably certain’ based on the focus of the evidence at trial that the jury’s verdict was not based on the theory with insufficient evidence, a new trial is unnecessary.” Substantively, the Court found sufficient evidence supported the verdict on each of the plaintiff’s three “theories of negligent hiring, operational control, and authorization of unsafe work practices.” No. 20-30038 (Jan. 11, 2021).

Taylor-Travis v. Jackson State Univ. applies the Fifth Circuit’s principles for review of alleged charge error, finding no abuse of discretion on a complicated question of causation in a discrimination case. No. 17-60856 (Jan. 6, 2020).

The contract-interpretation question in Gulf Engineering Co. v. Dow Chemical Co. was whether, after giving notice of termination, Dow Chemical was obligated to provide work to Gulf Engineering for another 90 days, or whether Dow had the “right but no contracted-for obligation to continue assigning work to Gulf.”

The Fifth Circuit found that the contract unambiguously meant that Dow had the right but not the obligation to give work to Gulf, and that the trial court thus erred in denying Dow’s summary-judgment motion on that point. The Court further found that the district court “compounded the error” by instructing the jury that it had found the relevant contract term to be ambiguous. Nevertheless, the error was harmless because the trial court also gave an instruction about the contract that substantially agreed with Dow’s reading of it. No. 19-30395 (June 9, 2020).

In re Darden joins the line of cases in which the Fifth Circuit denied a mandamus petition while offering guidance on the issue presented. Darden sought relief from the trial court’s proposed jury charge on a key issue in a wrongful-death case, and the Court held:

Darden has other adequate means to attain the relief he desires. We are satisfied that on these facts, a writ of mandamus would be inappropriate. Nevertheless, we suggest that the following additional question in the verdict form, one for each officer, upon which the jury’s other findings would not be conditioned, would clearly comply with this court’s prior opinion and possibly avoid another appeal regarding these instructions after a verdict.

QUESTION NO. [#]

Do you find from a preponderance of the evidence that [officer’s name] knew or should have known of the existence and extent of Jermaine Darden’s preexisting conditions?

No. 20-10065 (Feb. 7, 2020).

The district court held a jury trial on whether Gilbert Galan had notice of Valero Energy’s (his employer) arbitration program.  Valero called the arbitation program “Dialogue”; the jury charge asked whether “Valero prove[d] by a preponderance of the evidence that it gave unequivocal notice to Gilbert Galan, Jr. of definite changes in employment terms regarding Valero’s Dialogue program[,]” Additionally, an instruction said that the “sole issue in this trial is whether Defendant[] Valero . . . notified plaintiff of the arbitration program and its mandatory nature.” Galan objected that the question did not have the word “arbitration”; “[h]is point is that the jury could have concluded Galan knew about the Dialogue Program as a whole, but not the part of it requiring arbitration.” The Fifth Circuit found no abuse of discretion in denying that request, especially given the instruction accompanying the question. Galan v. Valero Services, Inc., No. 19-400753 (Sept. 23, 2019) (unpublished).

After a five-week trial, three days of deliberation, and an Allen charge, the district court excused Juror No. 7. “[T]he district court found that Juror No. 7 had failed to follow instructions, exhibited a lack of candor during questioning, and had engaged in threatening behavior towards other jurors. Though defendants argue that this juror was removed for reasons that involve the deliberative process, there were sufficient independent reasons for his removal, namely, his lack of candor and his threatening behavior.” The Fifth Circuit followed Circuit precedent that “previously declined to apply the rule used by some circuits that prohibits dismissing a juror unless there is ‘no possibility’ that the failure to deliberate arises from their view of the evidence,” and instead reasons that “when the dismissal is due to a failure to be candid or a refusal to follow instructions, those are grounds that ‘do not implicate the deliberative process.’” United States v. Hodge, No. 17-20720 (Aug. 9, 2019) (applying United States v. Ebron, 683 F.3d 105 (2012)).

The federal system’s more-forgiving approach, to what Texas state practice calls “the Casteel problem,” was on display in Young v. Board of Supervisors of Humphreys County, Mississippi. After a jury trial, Young won a judgment under § 1983 for depriving him of the use of several properties. Among other appeal points, “The Board takes issue with Jury Instruction 4, which told the jury that it could find the Board liable if it found, by a preponderance of the evidence, one of three things: (1) ‘The Board of Supervisors authorized a violation of Mr. Young’s property rights,’ (2) ‘Dickie Stevens had been given the authority by the Board to take the action he took with respect to Mr. Young’s property,’ or (3) ‘The Board ratified Dickie Stevens’ actions after the fact.'” The Fifth Circuit held that as to the second theory, “[e]ven assuming that the court erred in allowing the jury to determine whether Stevens was a policymaker, there was legally sufficient evidence for a reasonable jury to hold the Board liable on a ratification [the third] theory . . . Thus, ‘any injury resulting from the erroneous instruction is
harmless.’“ No. 18-60618 (June 21, 2019).

The losing party in Alonso v. Westcoast Corp., No. 17-30877 (Apr. 8, 2019), contended that it was plain error to submit the below jury question about a contract claim, without also asking whether the plaintiff had itself breached:

The Fifth Circuit held that it was not plain error, noting that earlier in the charge as part of the instructions, the jury had been told that if “one party to a contract substantially breaches the contract, then the breaching party cannot enforce the contract it has breached or demand damages form the other party to the contract.” The Court cited Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 506 (5th Cir. 2012), which allowed a question that “conflated the question of license (an affirmative defense . . . ) with that of infringement (a claim on which [plaintiff] carried the burden),” even though that  question was “not a model of clarity.”

This was a Louisiana case; by way of comparison (background only, given the deferential standard of review in this case), the Texas pattern charge on this point uses questions about both parties’ breach, drawing from Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004).

The Pugas received a substantial judgment in their favor after a jury trial, arising from a collision with a truck controlled by RXC Solutions. The Fifth Circuit substantially affirmed, holding, inter alia:

• Preservation. The defendant’s FRCP 50(b) motion, based on the argument that federal law does not allow courts to hold motor carriers liable for the acts of independent contractors, was not permissible when its 50(a) motion only attacked the sufficiency of the evidence about the driver’s employee status and alleged negligence;
• Jury charge. The district court did not abuse its discretion when it “closely examined the statute, avoided the obvious, overbroad definition of motor carrier, and picked out the correct, limited definition.”
• Expert testimony. The defendant’s objections to the testimony of an accident investigator went to weight rather than admissibility, even though “[i]t did not take into account every possible explanation for the accident, and some measurements were missing.”
• Remittitur. “We measure disproportionality by applying a percentage enhancement to past similar awards. This enhancement is 50% for jury trials.”

Puga v. RCX Solutions, Inc., No. 17-41282 (Feb. 1, 2019).

In Conestoga Trust v. Columbus Life Ins. Co., the Fifth Circuit found that the trial court’s charge erroneously placed the burden of proof on the insured – rather than the insurer – as to an issue about delivery of a grace notice before termination of the policy. The next question was whether this error was sufficiently harmful to require reversal; the insured “claims that the district court’s improper placement of the burden constituted prejudicial error because, given the lack of direct evidence, the burden of proof was likely  outcome-determinative,” while the insurer “concludes that any error concerning the burden of proof is harmless because the record demonstrates that Columbus presented ample evidence that it mailed the Grace Notice.” Acknowledging that a burden-of-proof error does not automatically require reversal, the Court concluded:

“While the misallocation of the burden of proof did not produce an ‘irrational verdict’ here, the evidence—though largely in favor of Columbus—is not so one-sided that Conestoga failed to present a genuine issue of material fact. Given that the jury was incorrectly instructed on the law on the sole issue before it, we are left with ‘a substantial doubt whether the jury was fairly guided in its deliberations.'”

No. 17-50073 (Jan. 3, 2019, unpublished).

In 2018, the Texas Supreme Court and the Fifth Circuit have taken different approaches to an important type of “Casteel” problem, in which a jury question has several legally viable theories, some of which are not supported with adequate evidence.

Federal. After a thorough (and infrequently-seen) summary of how federal law has developed on the “Casteel problem” of commingled liability theories, the Fifth Circuit concluded in Nester v. Textron, Inc., 888 F.3d 151 (5th Cir. 2018): “We will not reverse a verdict simply because the jury might have decided on a ground that was supported by insufficient evidence.” (applying, inter alia, Griffin v. United States, 502 U.S. 46 (1991)).

State. In Benge v. Williams, 548 S.W.3d 466 (Tex. 2018), a medical-malpractice case, the Texas Supreme Court observed: “The jury question in the present case, unlike the one in Casteel, did not include multiple theories, some valid and some invalid. It inquired about a single theory: negligence. But we have twice held that when the question allows a finding of liability based on evidence that cannot support recovery, the same presumption-of-harm rule must be applied.”

(Thanks to Mark Trachtenberg for pointing out this comparison at the recent Advanced Civil Appellate Course!)

Nester v. Textron, Inc. affirmed a judgment for the plaintiff in a products liability case, arising from a gruesome accident involving a golf-cart like utility vehicle. In reviewing challenges to the jury charge, theFifth Circuit  discussed in detail two important issues:

1. PJC Power. A state’s approved pattern jury instructions are presumptively correct, especially when the record shows a lack of harm: “Federal judges often face the workaday dilemma of how much state law to consolidate expressly into the jury charge. . . . The list of conceivable additions goes on. But, as our prior cases indiate, a commonly administered PJC is often an entirely sensible place to draw the line. . . . At the end of the day, Textron asks us to hold that the district court erred by refusing to deviate from a standard Texas instruction. That definition permitted Textron to make its arguments about various tradeoffs to the jury (it did so) and gave those jurors a means to find in Textron’s favor (they balked).”
2. Casteel, federal-style. After a thorough (and infrequently-seen) summary of how federal law has developed on the “Casteel problem” of commingled liability theories, the Court concluded: “We will not reverse a verdict simply because the jury might have decided on a ground that was supported by insufficient evidence.” (applying, inter alia, Griffin v. United States, 502 U.S. 46 (1991)).

No. 16-5115 (April 18, 2018).

The receiver for the Allen Stanford businesses alleged that Stanford Coins and Bullion made fraudulent transfers to Dilllon Gage, a wholesaler of coins and precious metals. The receiver lost at trial and the Fifth Circuit affirmed in Janvey v. Dillon Gage, Inc., No. 15-1121 (May 5, 2017). The Court noted conflicting evidence about SCB’s subjective belief as to its ability to pay all creditors, supported by objective evidence about its saleable inventory at the relevant time. The Court also found no reversible error in a jury charge that did not expressly define “intent,” or in the instructions given on other aspects of a fraudulent transfer claim under Texas law.

Litigation about the intellectual property rights to the name “Communicat-R” (here, applied to a specialized type of whiteboard) led to a jury trial. The Fifth Circuit affirmed, finding no abuse of discretion in this instruction: “Trademarks can be abandoned through non-use. A trademark is abandoned if it is proven by a preponderance of the evidence, that (1) the use of trademark was discontinued; and (2) an intent not to resume such use.” The Court rejected a request for additional language about “excusable nonuse,” finding that it would either be redundant or not entirely accurate in the context of this case. The Court also rejected sufficiency challenges to liability and damages, illustrating the operation of the federal standard for the grant of a new trial. Vetter v. McAtee, No. 15-20575 (March 1, 2017).

Peter Romero, among the multitudes sued for fraudulent transfers by the receiver for Stanford International Bank, argued that limitations had run because the receiver had not sued within a year of when the transfer “was or could reasonably have been discovered by the claimaint.”  The receiver offered detailed proof about the overall timetable of his work, its substantive scope, its geographic scope, and the condition of the relevant documents and electronic records.  An accountant corroborated his account.  This was sufficient information to sustain the jury’s finding in favor of the receiver (on a question using a specific date, unlike the standard Texas PJC submission).  Janvey v. Romero, No. 15-10435 (March 16, 2016).

The issue in United States v. CITGO was whether an “equalization tank” — a holding tank that plays a role in the process for handling oil refinery wastewater — is an “oil-water separator” within the meaning of the regulations implementing the Clean Water Act.  The jury instructions quoted the regulation’s definition of an oil-water separator and then added: “[t]he definition of oil-water separator does not require that [it] have any or all of the ancillary equipment mentioned such as forebays, weirs, grit chambers, and sludge hoppers . . . . An oil-water separator is defined by how it is used.” The Fifth Circuit found an abuse of discretion in that additional sentence and reversed CITGO’s convictions: “This purely functional explanation is not what [the regulation] says, however: it defines an oil-water separator by how it is used and by its constituent parts. . . .  Although the jury was also provided the exact text of Subpart QQQ, the court’s instruction told them what it means and thus undoubtedly affected the verdict. For this harmful error, the Clean Air Act convictions must be reversed.”  No. 14-40128 (Sept. 4, 2015).