* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-30080

Summary Calendar

 

WAYMON E. FREEMAN,

Plaintiff-Appellant,

versus

RANDY L. HICKMAN; NATIONAL UNION

FIRE INSURANCE COMPANY OF 

PITTSBURGH, PA; WAL-MART STORES, INC.,

Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

(94-CV-531)

________________________________________________

August 29, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

Plaintiff-appellant Waymon Freeman (plaintiff) filed this suit

in Louisiana state court for damages arising out of an automobile

accident. Following removal to the district court below, a jury

awarded plaintiff $5,000 in general damages and $5,000 for past

medical expenses. Judgment was entered accordingly. On appeal,
2

the plaintiff challenges the adequacy of this verdict.

Facts and Proceedings Below

On September 8, 1993, defendant-appellee Randy L. Hickman

(Hickman), an employee of defendant-appellee Wal-Mart Stores, Inc.

(Wal-Mart), ran a red light and collided with the plaintiff’s

vehicle. Plaintiff filed suit in Louisiana state court, and the

case was removed shortly thereafter because complete diversity

existed between the parties.

At the ensuing jury trial, the defendants stipulated that

Hickman, a Wal-Mart regional personnel manager acting within the

course and scope of his employment at the time, was at fault for

the accident. It was also stipulated that Wal-Mart and Hickman, as

an employee of Wal-Mart, were insured by defendant-appellee

National Union Fire Insurance Co. of Pittsburgh, Pennsylvania.

Plaintiff testified that he was wearing his seat belt at the

time of the accident, but that the impact of the collision threw

him to the passenger side of his vehicle; he also testified that he

struck his knee on the steering column in the course of being

thrown across his vehicle.

Hickman testified that, immediately following the accident, he

approached the plaintiff as the plaintiff was exiting his vehicle,

apologized and acknowledged his fault for the accident, and asked

the plaintiff if he were “okay.” Plaintiff responded that he was.
3

Hickman further testified that the plaintiff then proceeded to

wrap a winch cable——attached to plaintiff’s vehicle——around a pole

and attempt to pull his (plaintiff’s) collapsed fender away from

the tire; during this process, the plaintiff never complained of

nor exhibited any injuries. Plaintiff did not go to the emergency

room or otherwise seek medical attention on the day of the

accident.

Plaintiff testified that, upon returning home on the day of

the accident, his knee had started to swell, his neck and shoulder

were causing considerable pain, and he had a headache. He saw a

doctor for the first time two days after the accident, and did not

at that time complain about his knee. X-rays taken of the

plaintiff’s shoulder during this first visit to the doctor revealed

no fracture or dislocation; however, the doctor did find “some mild

A-C joint degenerative changes.” 

Following his second doctor’s visit, at which time he again

made no mention of his knee, plaintiff hired an attorney.

Subsequently, on October 4, 1993, nearly a month after the

accident, plaintiff went to see Dr. John E. Cobb (Cobb), an

orthopaedic surgeon. At this time, plaintiff complained of his

knee to Dr. Cobb. Following a week and one half of physical

therapy and an MRI, Dr. Cobb performed arthroscopic surgery on

plaintiff’s knee to repair a torn medial meniscus. Plaintiff

thereafter underwent two months of physical therapy for his knee.

At the time of trial, plaintiff had not seen Dr. Cobb
1 The jury responded “$5000.00" to the special issue on the

verdict form which asked:

“What amount do you find will adequately compensate the

plaintiff for the damage sustained by him as a result of

his injury from date of accident [] to this date?”

4

regarding his knee in ten months, and had not visited Dr. Cobb

concerning his neck in fifteen months. Dr. Cobb testified that

plaintiff had given no indication that he wanted to pursue

additional surgery to his knee or any surgery to his neck at the

time of trial, nor was there any evidence that such surgery would

be necessary. Dr. Cobb also conceded that the pain in plaintiff’s

neck stemmed from a degenerative condition predating the accident.

The plaintiff maintains that this condition was aggravated by the

accident. 

Finally, Dr. Cobb testified that the restrictions on

plaintiff’s activities as a result of his neck problem constituted

a “common sense” approach to what he could and could not do——“a

voluntary restriction program, just learn to live with it, learn

what not to do and what to, that he can do without aggravating it.”

Testimony was given that the plaintiff continued to hunt, fish, and

spend time in his “camp” since the accident.

At the conclusion of trial, the jury rendered a verdict that

the plaintiff had incurred damages as a result of Hickman’s

negligence. The jury awarded the plaintiff $5,000 in general

damages1 and $5,000.00 in past medical expenses. The jury awarded

the plaintiff “0" for future damages and future medical expenses.
2 In Scottish Heritable Trust, the party challenging on appeal

the sufficiency of the evidence moved for judgment as a matter of

law “prior to the conclusion of all evidence” and also objected to

the proposed jury charge. Id. at 610-11 (emphasis added). We held

that sufficed.

5

Counsel for the plaintiff did not move for judgment as a

matter of law at any time during trial. Furthermore, plaintiff’s

counsel did not file a motion for a new trial, and opted not to

seek a judgment notwithstanding the verdict in the trial court. 

Discussion

The framework within which we are to review the plaintiff’s

claims on appeal depends on whether or not the plaintiff has

properly preserved the issue of sufficiency of the evidence. If

the plaintiff failed to preserve this issue, then we review the

record in this case for any evidence supporting the jury’s award of

$5,000 in general damages and $5,000 in past medical expenses. See

Fed. R. Civ. P. 50; see also Great Plains Equipment, Inc. v. Koch

Gathering Systems, Inc., 45 F.3d 962, 968 (5th Cir. 1995) (“Where

a party has failed to preserve the issue of sufficiency of the

evidence for appellate review by moving for judgment as a matter of

law (formerly directed verdict) in the trial court, our inquiry is

limited to whether there was any evidence to support the jury’s

verdict, irrespective of its sufficiency”); Scottish Heritable

Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 & n.9 (5th

Cir. 1996); Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 397 n.2

(5th Cir. 1995).2
In the present case, the defendants submitted proposed joint

jury instructions to which plaintiff’s counsel agreed. In agreeing

to these instructions, the plaintiff asked only that three

“additional” instructions be included with those proposed by the

defendant. And, of these three “additional” instructions, only one

was not included verbatim in the defendants’ proposed joint

instructions. However, even if we were to view these three

additional jury instructions as objections to the defendants’

proposed joint instructions——and relevant to the issue of

evidentiary sufficiency——these objections further neither of the

above purposes of Fed. R. Civ. P. 50(b). Both the defendants’

proposed joint instructions and the plaintiff’s objections

(additional instructions) were submitted to the court before

trial——prior to the presentation of any evidence. Thus, there was

no (evidentiary) sufficiency issue for the court to “re-examine” in

light of these objections, or to which the “opposing party” might

thereby be alerted.

Thereafter, during the week prior to trial, plaintiff caused

to be filed yet again (a verbatim copy of) an instruction which had

previously been filed with both the proposed joint instructions and

the plaintiff’s “objections” (additional instructions). The filing

of this instruction brought the plaintiff no closer to fulfilling

the purposes of Rule 50(b). There is no indication in the record

that the plaintiff objected to the jury charge or otherwise raised

any issue regarding the sufficiency of the evidence subsequent to

the pre-trial filing of this instruction.

3 In Polanco, the party challenging on appeal the sufficiency of

the evidence did move for judgment as a matter of law during trial,

but failed to renew its motion at the close of all the evidence.

78 F.3d at 975. We held in Polanco that the “failure to raise

another motion for judgment as a matter of law is not detrimental

to the City’s insufficient evidence claims” as “[o]ur precedent

makes clear that a strictly mechanical application of rule 50(b) is

not required when the court reserves its ruling and the defendant

has given notice of insufficiency.” Id. (emphasis added).

6

If we were to determine, however, that the plaintiff has not

waived his right to challenge the sufficiency of the evidence, then

our task is to analyze the sufficiency of the evidence supporting

the verdict. See Polanco v. City of Austin, Texas, 78 F.3d 968,

974 (5th Cir. 1996).3 In Polanco, we observed that:
4 Testimony from an expert witness, Dr. Clifton Shepherd

(Shepherd), was presented that the plaintiff’s actions following

the accident and preceding his first visit with Dr. Cobb suggested

7

“The standard for evaluating the sufficiency of evidence

is whether the evidence has such quality that reasonable

and fair-minded persons would reach the same conclusion.

The Fifth Circuit has explained the standard as follows:

‘We will reject a verdict in those instances when,

despite considering all the evidence in the light and

with all reasonable inference most favorable to the

verdict, we find no evidence of such quality and weight

that reasonable and fair-minded men in the exercise of

impartial discretion could arrive at the same

conclusion.’” Id. at 974 (citation omitted).

We need not determine which standard of review is appropriate

in the present case, however, as our conclusion is the same

regardless of which of these standards we employ. Even if we

examine the sufficiency of the evidence supporting the verdict, we

find that the evidence adduced at trial was of such quality and

weight that reasonable and fair-minded men in the exercise of

impartial discretion could arrive at the same verdict. 

Evidence was presented demonstrating that, immediately

following the accident, the plaintiff stated to Hickman that he was

“okay” and set to work pulling his damaged fender away from his

tire with a winch. Evidence was also adduced that the plaintiff’s

first visit to a doctor occurred two days following the accident,

and that the plaintiff did not complain of pain in his knee during

either of his first two visits to the doctor. Only after hiring an

attorney did the plaintiff visit a doctor and complain of his

knee.4 Aside from the medical expenses relating to the plaintiff’s
that the plaintiff’s knee problems were unrelated to the accident.

Dr. Cobb acknowledged that this was “one of the conclusions you

could make.” Dr. Cobb testified that the plaintiff “certainly had

significant wear in the knee before the accident.”

5 It appears from the record that the plaintiff’s first two

visits to the doctor (prior to seeing Dr. Cobb) related to his

shoulder, neck, and back, and that he saw Dr. Cobb an additional

four times pertaining to his shoulder and neck.

6 Plaintiff contends that future surgery will result in “future

pain and suffering and mental anguish.”

8

knee, the plaintiff incurred medical expenses relating to his neck

and shoulder.5 Evidence was presented, however, that the pain in

the plaintiff’s neck stemmed from a degenerative condition

predating the accident. After viewing this evidence in the light

and with all reasonable inferences most favorable to the verdict,

we will not disturb the jury’s award of $5,000 for general damages

(from the date of the accident to the return of the verdict) and

$5,000 in past medical expenses.

Turning to the plaintiff’s claim that the verdict was

inadequate in that it made no award for future damages and future

medical expenses, we find evidence of such quality and weight that

reasonable and fair-minded men in the exercise of impartial

discretion could arrive at the same conclusion. The plaintiff’s

claim pertaining to future damages and medical expenses hinges

entirely on the necessity of future surgery.

6 Dr. Cobb testified

that he and the plaintiff had last discussed the plaintiff’s neck

problem approximately fifteen months prior to trial, and that, as

of that time, no surgery had been scheduled. Additionally, Dr.
9

Cobb testified that, in the fifteen months following that final

discussion of the plaintiff’s neck problem, plaintiff had not

requested additional treatment to his neck nor indicated that he

wanted to undergo surgery. Dr. Spencer testified that the

plaintiff would not benefit from the surgery to his neck that the

plaintiff and Dr. Cobb had discussed at some point in his earlier

visits.

Regarding the alleged necessity of future surgery to the

plaintiff’s knee, Dr. Cobb testified that he had not seen the

plaintiff regarding the knee or anything else in the ten months

preceding trial. And, at the time of the plaintiff’s final visit,

Dr. Cobb testified that he was not recommending surgery to the

plaintiff’s knee. Furthermore, Dr. Cobb testified that no surgery

had been scheduled for the plaintiff’s knee, nor had the plaintiff

requested such surgery. Dr. Cobb testified that surgery would only

be considered if the plaintiff were to determine that he had such

pain in his knee that “he just doesn’t want to put up with it.”

Moreover, Dr. Cobb testified that, even if additional surgery were

performed on the plaintiff’s knee, the “primary” purpose of such

surgery would be to correct a condition predating the accident:

“Q: And would you agree that the surgery which you have

discussed with regard to the knee, the additional surgery

would be related primarily to those problems, that is,

the degeneration of the cartilage on the bone?

A: That’s right. It’s to address the arthritis, the

wear problems that exist in the medial compartment.

Q: And that existed there before the accident?
10

A: It did, yes.”

Finally, Dr. Shepherd testified that he examined the

plaintiff’s knee following the arthroscopic surgery and found no

tenderness, no swelling, no bruising, a normal temperature, normal

ligaments, and a smooth and full range of motion.

Conclusion

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.