Ferguson v. United States ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50952
Summary Calendar
RONNIE L. FERGUSON,
Plaintiff-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-00-CV-482-SS)
_________________________________________________________________
April 30, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
A bench trial having been held on 23 July 2001, following
which the court found that Ronnie Ferguson’s conduct was the sole
proximate cause of the injuries he suffered in a woodworking shop
accident at the Apache Arts & Crafts Center at Fort Hood, Texas,
Ferguson contends: the district court abused its discretion by
excluding Ferguson’s expert (designated almost three months
subsequent to the deadline for designating experts and only three
weeks prior to trial); the findings of fact were clearly erroneous,
*
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this opinion should not be published and is not precedent except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.
see FED. R. CIV. P. 52(a); and Ferguson was not the sole proximate
cause of his injuries.
Exclusion of the expert was not an abuse of discretion. See
Bradley v. United States, 866 F.2d 120, 124 (5th Cir. 1989) (four
factors to consider: importance of witness’ testimony; prejudice to
the United States; possibility of curing prejudice by granting
continuance; and explanation for late designation). On 29 November
2000, Ferguson was given four months to conduct discovery and
designate experts. Not only would the late designation severely
prejudice the United States’ ability to prepare a defense and
properly cross-examine this expert without an opportunity to depose
him, but also Ferguson’s explanation is not believable. Further,
granting a continuance would have only served to defeat the
purposes of the Federal Rules of Civil Procedure. Finally,
Ferguson admitted that his expert’s testimony would corroborate his
own.
A finding of fact is clearly erroneous only when, after
reviewing the entire record, we are left with the definite and
unmistakable conviction that an error has been committed by the
district court. See, e.g., Bejil v. Ethicon, Inc., 269 F.3d 477,
481-82 (5th Cir. 2001); see FED. R. CIV. P. 52(a). Pursuant to this
standard, we cannot conclude that the findings of fact at issue are
clearly erroneous. Ferguson had extensive general woodworking
experience and was qualified to use the shaper (the woodworking
equipment involved in the accident). The negligence finding is
supported by facts showing: Ferguson was fighting the force of
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gravity when using the shaper; and his cutting technique caused his
injury. Nothing in the record demonstrates the court committed
clear error by accepting the United States’ explanation for the
accident over Ferguson’s. See St. Martin v. Mobil Exploration &
Producing U.S., Inc., 224 F.3d 402, 408 (5th Cir. 2000); Glass v.
Petro-Tex Chem. Corp., 757 F.2d 1554, 1559 (5th Cir. 1985).
The court did not err in finding Ferguson’s actions were the
sole proximate cause of his injuries. Kona Tech. Corp. v. Southern
Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000). The court
found: the United States was negligent; but, Ferguson’s failure to
exercise reasonable care was the sole proximate cause of his
injuries. See, e.g., Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d
934, 937 (Tex. 1998) (failure to prove facts sufficient to support
a cause of action warrants a take-nothing judgment); Glenn v.
Prestegord, 456 S.W.2d 901, 903 (Tex. 1970) (to recover, the
defendant’s negligence must be a proximate cause of the injury).
AFFIRMED
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