Jones, et al v. NL Industries Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 06-61117
Summary Calendar
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TAMIKO JONES,
INDIVIDUALLY;
SHAKERIAL JONES,
MINOR, BY AND THROUGH HER MOTHER AND LEGAL GUARDIAN, TAMIKO JONES;
GLADYS MAE TERRY,
INDIVIDUALLY;
ANGELA TERRY; SEKUILLA TERRY; AND QUASHAN TERRY,
MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, GLADYS MAE TERRY;
ARRY DAVIS,
INDIVIDUALLY;
MARVIN DAVIS; TYRONE DAVIS; JARVIS DAVIS;
FREDRICK DAVIS; AND TYNISE HUDSON,
MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, ARRY DAVIS;
SHERRY WRAGG,
INDIVIDUALLY;
ARSENIO WRAGG; CHARLES WRAGG; KEUNDRA WRAGG; AND TIMOTHY WRAGG,
MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, SHERRY WRAGG;
MARTHA LOTT,
INDIVIDUALLY;
SANTEARIS LOTT,
MINOR, BY AND THROUGH HIS MOTHER AND LEGAL GUARDIAN, MARTHA LOTT;
JOHN DOES 1-10,
Plaintiffs-Appellants,
VERSUS
NL INDUSTRIES, INC.,
FORMERLY KNOWN AS NATIONAL LEAD COMPANY, FORMERLY KNOWN AS DUTCH BOY PAINTS;
JERRY PURNELL; JOHN DOE 1-10,

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Defendants-Appellees.

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_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
m 4:03-CV-229
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
A jury found in favor of defendants NL
Industries, Inc., and Jerry Purnell in this suit
brought on behalf of fourteen minor children
allegedly injured by lead-based paint. The
district court denied plaintiffs’ motion for new
trial. Finding no abuse of discretion, we af-
firm.
I.
In moving for a new trial, plaintiffs claimed
the jury instructions were merely abstract
statements of law and did not tie sufficiently to
the facts of the case and that the court should
have used their proposed instructions on
proximate cause. Those proposed instructions
explained plaintiffs’ burden to prove proximate
causation and stated the following:
The defendants, NL Industries, has pled
affirmatively that the actual proximate
causes of the plaintiffs’ lead poisoning, if
any, was one or more of the following:
1. Lead based paint at 600 Dewey
Street not connected with NL Industries;
2. The soil at 600 Dewey Street;
3. Lead sources at multiple other resi-
dences;
4. Lead sources at a day care center;
5. Plaintiffs’ alleged extensive family
histories of mental retardation;
6. Learning disabilities; and,
7. Behavioral problems.
Just as the plaintiffs have the burden of
proving their case by a preponderance of
the evidence, in order for you to find any of
these things to be a probable cause, NL In-
dustries must prove by a preponderance of
the evidence that the thing which it argues
is a proximate cause is, in fact, a probable
cause of plaintiffs’ injuries, if any.
The court rejected the proffered instruction at
trial and in its denial of a motion for new trial
because, among other things, it did not state
the law correctly. In addition to appealing the
denial of a new trial, plaintiffs appeal the re-
fusal to permit them to tell the jury that the
minor children had guardians who had been
appointed to protect their interests and oversee
any money awarded to them.
II.
We review challenged jury instructions for
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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abuse of discretion. Fiber Sys. Int’l, Inc. v.
Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006).
“Where a party argues on appeal that the dis-
trict court erred in refusing to give a proffered
jury instruction, that party must ‘show as a
threshold matter that the proposed instruction
correctly stated the law.’” Russell v. Plano
Bank & Trust, 130 F.3d 715, 719 (5th Cir.
1997) (quoting FDIC v. Mijalis, 15 F.3d
1314, 1318 (5th Cir. 1994)). Once that
threshold is met, “the challenger must demon-
strate that the charge [given] creates substan-
tial doubt as to whether the jury was properly
guided in its deliberations. Second, even if the
jury instructions were erroneous, we will not
reverse if we determine, based upon the entire
record, that the challenged instruction could
not have affected the outcome of the case.”
Green v. Adm’rs of the Tulane Educ. Fund,
284 F.3d 642, 659 (5th Cir. 2002) (internal
citations omitted).
A.
The proposed instruction does not properly
state the law: It places the burden on defen-
dants to prove alternative causes in fact, to use
those alternate causes to negate proximate
causation. The proposed instruction stated,
“NL Industries must prove by a preponderance
of the evidence that the thing which it argues
is a proximate cause is, in fact, a probable
cause of plaintiffs’ injuries . . . .”
The Mississippi Supreme Court has square-
ly rejected this proposition and, instead, places
the burden on the plaintiff to disprove other
possible causes in fact, not on the defendant to
establish them:
Where plaintiff in a negligence action has
only presented proof that the actual cause
was one of a number of possibilities, to en-
able an inference to be drawn that any par-
ticular cause is probable, the other causes
must be eliminated. Thus, when the evi-
dence shows that it is just as likely that ac-
cident might have occurred from causes
other than defendant’s negligence, the in-
ference that his negligence was the proxi-
mate cause may not be drawn.
Miss. Valley Gas Co. v. Estate of Walker, 725
So. 2d 139, 145-46 (Miss. 1998) (internal
quotation omitted).
We reached the same conclusion in the sim-
ilar context of intervening causes under Texas
tort law. In E.I. du Pont de Nemours & Co. v.
McCain, 414 F.2d 369, 374-75 (5th Cir.
1969), the plaintiff posited that “the trial court
should have instructed the jury that intervening
cause is an ‘affirmative defense’ to plaintiffs’
negligence claim.” Id. at 374. We rejected
that argument: “‘The theory of new and
independent cause is not an affirmative de-
fense; it is but an element to be considered by
the jury in determining the existence or non-
existence of proximate cause.’” Id. (quoting
Dallas Ry. & Terminal Co. v. Bailey, 250
S.W.2d 379, 383 (Tex. 1952)). Because
plaintiffs’ proposed instruction incorrectly
places the burden on defendants to prove alter-
nate causes, it does not properly state the law,
and the district court did not abuse its discre-
tion in declining to give it.
B.
Plaintiffs’ other complaintSSthat the juryin-
structions were too abstract and not tied to the
facts at trialSSalso fails. Though we look to
state law to determine the content and sub-
stance of jury instructions, their form is a pro-
cedural question determined by federal law.
Reyes v. Wyeth Labs., 498 F.2d 1264, 1289

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(5th Cir. 1974).1 Plaintiffs’ argument that
Mississippi law requires that instructions in-
corporate facts from the case is irrelevant, be-
cause we must apply federal standards.
Plaintiffs direct us to United States v. Lew-
is, 592 F.2d 1282, 1286 (5th Cir. 1979), and
United States v. Gunter, 876 F.2d 1113, 1119
(5th Cir. 1989), to argue that the federal rules
require specific instructions that relate the law
to the facts of the case. Neither of these cases,
however, announces a per se rule to that ef-
fect.2 An instruction does not always have to
include the facts a plaintiff requests.3 Because
there is no per se rule that instructions contain
details from the case, and because plaintiffs
point to no specific deficiencies in the instruc-
tions, there is no abuse of discretion.
III.
In three paragraphs at the end of their brief,
plaintiffs assert that the district court erred in
refusing to allow them to tell the jury that the
minor children had guardians to oversee any
award. Plaintiffs do not cite the standard to
review this evidentiary decision, any support-
ing authorities for their position, or any refer-
ences to the record. Though they assert that
the “record is replete with instances of Defense
counsel attacking the character, the behavior,
and/or the parental qualities of the mothers of
the minor children,” plaintiffs cite no instances
in the record establishing that claim.
Because the plaintiffs offer only a skeletal
recitation of an argument “without citing sup-
porting authorities or references to the rec-
ord,” this claim is “considered abandoned on
appeal. Notice pleading does not suffice for
appellate briefs.” United States v. Ballard,
779 F.2d 287, 295 (5th Cir. 1986) (internal
citations omitted).
AFFIRMED.
1 See also 9A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2555 (2d ed. 2007) (“Both with re-
gard to the manner and method of instructing the
jury, federal courts follow their own rules, regard-
less of the forum state’s practice and legislation.”).
2 Lewis decided whether an entire proposed in-
struction should have been given, not whether ab-
stract instructions should have instead included
facts of the case. Lewis, 592 F.2d at 1286 (“There
was a sufficient evidentiary foundation to present
the issue and to warrant an instruction concerning
authority and apparent authority to endorse. Cer-
tainly, the issue of good faith should have been
submitted.”). Similarly, Gunter involved “omitting
[a] requested jury instructions on a defense of good
faith.” Gunter, 876 F.2d at 1119.
3 United States v. Stone, 960 F.2d 426, 433
(5th Cir. 1992) (“Because the elements of agree-
ment and intentSSas well as the legal defenses
based on lack of agreementSSwere substantially
covered in the charge given to the jury, a theory of
the defense that merely recounted the facts without
those elements was not required.”) (citing United
States v. Lance, 853 F.2d 1177, 1184-85 (5th Cir.
1988); United States v. Barham, 595 F.2d 231,
244-45 (5th Cir. 1979)).

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