Garay v. Missouri Pacific ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 21 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GENARO GARAY; EVA GARAY,
parents and heirs of Nicolas Garay,
deceased; ANN CASE, personal
representative and administrator of
the estate of Nicolas Garay, deceased,
Plaintiffs-Appellants,
v. No. 99-3364
(D.C. No. 96-CV-1127)
MISSOURI PACIFIC RAILROAD (D. Kan.)
COMPANY, a corporation; UNION
PACIFIC RAILROAD COMPANY,
a corporation; TRINITY
INDUSTRIES, INC., individually
and as successor to Pullman-Standard,
Inc.; JOHN DOE CORPORATION,
INC., unknown manufacturers,
Defendants-Appellees,
and
FMC CORPORATION,
Defendant.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRORBY , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiffs appeal from two rulings of the district court following a jury’s
award of damages to plaintiffs on their products liability claim: the grant of
judgment as a matter of law to defendants and the denial of plaintiffs’ subsequent
motion for new trial. Our jurisdiction over this appeal arises from
28 U.S.C. § 1291. Our review of the district court ’s order granting judgment as
a matter of law is de novo. Cadena v. Pacesetter Corp. , 224 F.3d 1203, 1208
(10th Cir. 2000). We review the denial of plaintiffs’ motion for new trial under
a more deferential standard, abuse of discretion. Webb v. ABF Freight Sys., Inc. ,
155 F.3d 1230, 1246 (10th Cir. 1998).
The underlying facts and procedural history are familiar to the parties and
we need not repeat them here. After careful review of the record on appeal in
light of the parties’ arguments, the applicable law, and the standards of review,
we conclude that the district court properly granted judgment as a matter of law
to defendants and that its denial of plaintiffs’ motion for new trial was not an
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abuse of its discretion. Plaintiffs’ arguments to the contrary lack merit. We
decline to review those arguments not presented to the district court . See Smith v.
Rogers Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997). 1
Therefore, for substantially the same reasons as contained in the district
court ’s orders dated August 26, 1999, and October 29, 1999, the judgment of the
United States District Court for the District of Kansas is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
1
These arguments include: 1) invocation of a rebuttable presumption under
Kansas law that warnings will be read and heeded; 2) an assertion that plaintiffs
had no obligation to come forward with certain factual evidence until defendants
presented their case including alternative defenses; and 3) plaintiffs’ contention
that the jury was properly instructed not to speculate in reaching its verdict.
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