Bolden v. Natl RR Psngr Corp, et al

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 30, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30066
Summary Calendar
DORIS WHITE BOLDEN, ET Al.,
Plaintiffs,
versus
NATIONAL RAILROAD PASSENGER CORPORATION, ETC; ET AL.,
Defendants.
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MARK RAYMOND LAPAPA,
Plaintiff-Appellant,
versus
NATIONAL RAILROAD PASSENGER CORPORATION, doing business as
Amtrak; CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD COMPANY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1125
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Lapapa argues that the district court erroneously denied his
motion to alter or amend judgment, alternatively for a new trial,

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No. 06-30066
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after the jury awarded him $5,577.47. The district court did not
abuse its discretion in denying the motion to alter or amend
judgment after concluding that sufficient evidence supported the
jury’s finding that Lapapa’s injuries pre-existed and were not
exacerbated by the train derailment and may have been caused by
an intervening event. See Weber v. Roadway Exp., Inc., 199 F.3d
270, 275-76 (5th Cir. 2000). For the same reason, the district
court did not abuse its discretion in denying a new trial. See
Young v. City of New Orleans, 751 F.2d 794, 798 (5th Cir. 1985);
Munn v. Algee, 924 F.2d 569, 578 (5th Cir. 1991) (holding that we
will not grant a new trial on damages unless factfinder’s award
is “so inadequate as to shock the judicial conscious and raise an
irresistible inference that passion, prejudice, corruption, or
other improper cause invaded the trial”).
Lapapa contends, independently of and in connection with the
above motions, that the district court erred in admitting
defendants’ evidence of an alleged intervening cause because an
argument of intervening cause is an affirmative defense, which
defendants failed to list in the pre-trial order. The court did
not err because Lapapa did not object during trial and was not
unfairly surprised by the evidence used to establish the defense
— documents listed in the pre-trial exhibit list. See Haught v.
Maceluch, 681 F.2d 291, 305-06 (5th Cir. 1982) (finding implied
consent to try issues beyond the pleadings where party does not
object); Giles v. Gen. Elec. Co., 254 F.3d 474, 491-92 (5th Cir.

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No. 06-30066
-3-
2001) (excusing technical non-compliance with Rule 8(c), which
requires party to list affirmative defenses in pre-trial order,
where there is no unfair surprise).
To the extent Lapapa argues that insufficient evidence
supported the defense, such that no reasonable jury could have
found an intervening cause, we disagree. Lapapa contends that
defendants’ only evidence of the mugging were medical records
stating that he had mentioned a “mugging;” he argues that if he
made this statement, he made it while delusional, and he notes
that he denied on the stand that a mugging had occurred,
explaining that he had cut his hand during an episode in his
apartment. On appeal, he presents new evidence that the incident
relied on by defendants was actually a psychotic episode in his
apartment, after which a New Orleans SWAT team forcibly removed
him from his apartment. We cannot consider this new evidence.
See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th
Cir. 1999). Given Lapapa’s admitted mental problems and the
evidence actually presented, which included a colloquy hinting
that the “mugging” might have actually been the forcible
extraction by the police, the jury was entitled to weigh the
credibility of the witnesses to find that a mugging, or some
later event that preceded the hospital visit where Lapapa
mentioned a “mugging,” was the intervening cause. See Young, 751
F.2d at 799.

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No. 06-30066
-4-
Accordingly, the jury’s award of damages is AFFIRMED and
Lapapa’s motion to strike portions of appellee’s brief regarding
“mugging” is DENIED.
Lapapa states that, due to Hurricane Katrina, the district
court has not acted on his motion for costs, filed August 2,
2005. This issue is not appropriately on appeal and Lapapa can
pursue that motion in the district court.

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