Resendez v. Wal-Mart Stores, Inc. , 180 F. App'x 543 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-20543
LYNDSEY RESENDEZ
Plaintiff-Appellant
versus
WAL-MART STORES, INC.
Defendant-Appellee.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 4:03-cv-1870)
_______________________________________________________
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*1
We affirm for the following reasons:
1. The 2000 amendment to Federal Rule of Evidence 103 instructs that a party does
*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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not need to renew their objection or offer of proof once the court makes a
definitive ruling. Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002).
Since the matter of Wells’ deposition was discussed in detail at the pretrial
hearing, Resendez did not have to make a more particularized offer of proof to
preserve error. However, Wells’ deposition was not excluded because of any
potential prejudicial effect, but rather because he had no knowledge of any fact of
consequence to the determination of this case, i.e., crime statistics particular to
Wal-Mart #285.
2. Federal Rule of Civil Procedure 51 is clear that a party must object to jury
instructions on the record, or else review is limited to plain error. Resendez did
not object to the district court’s response to the jury note. Supplemental
instructions should be responsive to jury questions and allow the jury to
understand the issues presented. United States v. Stevens, 38 F.3d 167, 170 (5th Cir.
1994). The district court’s supplemental instruction did not compel any juror as to
how he or she “should” vote. Thus, there is no error.
3. The denial of a motion for new trial based on insufficiency of the evidence is
reviewed for an abuse of discretion. Polanco v. City of Austin, 78 F.3d 968, 980
(5th Cir. 1996). Both Wal-Mart’s expert and Resendez’s expert analyzed the
“calls for service” and reached different conclusions. Difference of opinion
among experts is the opposite of an absolute absence of evidence supporting the
jury’s verdict. Thus, there is sufficient evidence to support the verdict.
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Affirmed.
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