REVISED FEBRUARY 10, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60328

Summary Calendar

BETTYE BARNES,

Plaintiff–Appellant,

v.

BTN, INCORPORATED, doing business as Boomtown Casino,

Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:12-CV-34

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff Bettye Barnes appeals the district court’s entry of judgment as 

a matter of law in favor of Defendant Boomtown Casino on her premises 

liability claim. For the reasons set forth below, we dismiss the appeal in part 

and affirm the judgment of the district court. 

* 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

FILED

January 17, 2014

Lyle W. Cayce

Clerk

 

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I

Barnes was a patron at the Boomtown Casino in Biloxi, Mississippi on 

February 6, 2009 through February 7, 2009. In the early morning hours of 

February 7, Barnes and two companions left the Grill Café, a second-floor 

restaurant within the casino, and proceeded to an escalator. They descended 

down that escalator to the first floor. While on the escalator, however, Barnes 

lost her balance and fell backwards, allegedly sustaining serious injuries.

Barnes filed this lawsuit against Boomtown, proceeding pro se, seeking 

compensation for the injuries she allegedly suffered. Her complaint contended

that the reason for her fall was that she “slipped on grease and french fries” 

that she picked up on her shoes from the floor of the Grill Café. The district 

court held a trial on April 15, 2013. Barnes rested her case-in-chief after two 

days and Boomtown moved for judgment as a matter of law under Federal Rule 

of Civil Procedure 50(a)(1). The district court granted this motion on the 

grounds that Barnes had failed to present legally sufficient evidence of 

Boomtown’s negligence. The district court also stated that, in the alternative,

Barnes had failed to present legally sufficient evidence on the elements of

damages and proximate cause. Barnes now appeals this judgment along with 

other rulings of the district court. 

II

At the outset, we note that we construe pro se appellants’ briefs liberally 

and apply less stringent standards to parties proceeding pro se than to parties 

represented by counsel.1 But pro se parties must still brief the issues and 

reasonably comply with the Rules of Appellate Procedure.2 Granting Barnes’s 

1 Yang v. Holder, 664 F.3d 580, 589 (5th Cir. 2011) (citing Grant v. Cuellar, 59 F.3d

523, 524 (5th Cir. 1995)). 

2 Id.

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briefs this permissive construction, Barnes raises five issues on appeal: that 

the district court erred in granting judgment as a matter of law, that the 

district court erred in limiting or excluding certain testimony by Barnes’s lay 

witnesses, that the district court erred in excluding certain medical and 

damages experts, that the district court should have granted Barnes a 

continuance, and finally, that the magistrate judge was impermissibly biased

due to an alleged prior affiliation with the law firm representing the 

defendant.3 We address these arguments in turn.

A

The first two issues raised by Barnes on appeal, that the district court 

erred in granting judgment as a matter of law and in limiting the testimony of 

certain witnesses at trial, cannot be reviewed by this court as Barnes has failed 

to provide this court with a trial transcript as required by Federal Rule of 

Appellate Procedure 10(b). Even though this court granted Barnes an 

additional 15 days, on November 25, 2013, to order a transcript, she 

nevertheless failed to do so. While we construe the briefs of pro se litigants 

leniently, it is within this court’s discretion to dismiss an appeal for failure to 

include a transcript.4 

An inquiry into the appropriateness of a district court’s order granting 

judgment as a matter of law turns on whether there was a legally sufficient 

3 Boomtown alleges that the ruling on the Judgment as a Matter of Law is the only 

issue on appeal as it is the only order listed on the Notice of Appeal. Federal Rule of Appellate 

Procedure 3(c)(1)(B) requires that a notice of appeal must “designate the judgment, order, or 

part thereof being appealed.” However, we generously interpret the scope of the notice of 

appeal of a pro se plaintiff and “require a showing of prejudice to preclude review of issues 

‘fairly inferred’ from the notice and subsequent filings.” Williams v. Henagan, 595 F.3d 610, 

616 (5th Cir. 2010) (per curiam) (quoting Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002)). 

“We consider not only the notice, but also the appellant’s brief, in determining the fairly 

inferred scope of the appeal.” Id. As such, we consider all of these issues properly raised on 

appeal. 

4 RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th Cir. 1995). 

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evidentiary basis for a reasonable jury to find for the opposing party.5 But an 

appellant who “intends to urge on appeal that a finding or conclusion is 

unsupported by the evidence or is contrary to the evidence . . . must include in 

the record a transcript of all evidence relevant to that finding or conclusion.”6

Barnes’s appeal of the district court’s order granting judgment as a 

matter of law simply cannot be resolved without the aid of a trial transcript.7 

It is impossible to divine whether she presented sufficient evidence at trial to

survive a motion for judgment as a matter of law without any record of the 

evidence presented at trial. Additionally, Barnes’s appeal of the district court’s 

exclusion of certain testimony at trial can also not be resolved without the aid 

of a trial transcript. Without a record of the specific testimony that was 

excluded, there is no way to determine whether the exclusion was appropriate 

or proper.8 Therefore, because Barnes has failed to order a trial transcript, her 

appeal as to these issues is dismissed and the scope of our review is limited to 

Barnes’s challenges of rulings by the district court that do not depend on 

having a transcript of the trial proceedings. 

B

Barnes appeals a number of the district court’s pre-trial evidentiary 

rulings. The district court excluded testimony by Barnes’s damages and

medical experts, prohibited the submission of medical records not produced in 

5 Bohnsack v. Varco, L.P., 668 F.3d 262, 272 (5th Cir. 2012). 

6 FED. R. APP. P. 10(b)(2). 

7 Richardson v. Henry, 902 F.2d 414, 415-16 (5th Cir. 1990) (dismissing an appeal of 

the sufficiency of the evidence because the appellant failed to provide a trial transcript); see 

also McNeil v. BMC Software Inc., 306 F. App’x 889, 892-93 (5th Cir. 2009) (“This Court 

cannot conduct meaningful appellate review of a district court’s decision to grant judgment 

as a matter of law without the testimony that would support or refute that determination.”). 

8 Cf. Grant v. McLeod, No. 94-10036, 1994 WL 523792, at *1 (5th Cir. Sept. 12, 1994)

(unpublished) (“[W]ithout the trial transcript, the Court cannot determine whether their 

testimony would have been cumulative and properly excluded.”). 

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discovery, and forbade any of Barnes’s lay witnesses from offering expert

opinions. We note at the outset that pro se plaintiffs are still charged with 

knowing and following the law and the rules of procedure.9

The district court granted Boomtown’s motion to exclude the testimony 

of two damages experts designated by Barnes: Jerry L. Pough and Floyd 

Pough. The Poughs were small-business consultants that Barnes intended to 

testify regarding “[l]oss of wages, present value of damages, medical expenses, 

life care plan, and loss of earning capacity.” The district court granted the 

motion to exclude on two alternative grounds: Barnes failed to comply with 

Rule 26 of the Federal Rules of Civil Procedure and Barnes failed to show that 

“the proffered testimony [was] reliable” under Daubert v. Merrell Dow 

Pharmaceuticals, Inc.10 Barnes did not submit any expert reports or opinions, 

and did not disclose any data, methodology, or reasoning that would 

substantiate or form the basis for the testimony. In fact, the designation of the 

Poughs as experts contained a statement from the Poughs that read, “Pough 

and Associates do not profess to be experts.” The district court’s decision to 

exclude the testimony came six months after the magistrate judge had 

previously warned Barnes that she must comply with Rule 26 of the Federal 

Rules of Civil Procedure and had threatened that “her expert designation may 

be stricken” if she did not comply.

If a party fails to properly and timely designate an expert witness,

Federal Rule of Civil Procedure 37 prohibits the use of that witness to supply 

evidence at trial unless the failure was “substantially justified or harmless.”11 

In reviewing the district court’s ruling, we consider four factors: (1) the 

9 See Teemac v. Henderson, 298 F.3d 452, 457 & n.11 (5th Cir. 2002). 

10 509 U.S. 579 (1993).

11 Brumfield v. Hollins, 551 F.3d 322, 330 (5th Cir. 2008). 

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explanation for the failure to comply with the Rules; (2) the importance of the 

testimony; (3) the potential prejudice in allowing the testimony; and (4) the 

availability of a continuance to cure such prejudice.12 We review a district 

court’s decision to exclude experts not properly designated for an abuse of 

discretion.13 

Under this four-factor test, we conclude that the district court did not 

abuse its discretion in excluding the testimony of the Poughs. Barnes offered 

no explanation at the trial court and does not offer one on appeal as to why she 

failed to comply with Rule 26(a)(2). Barnes has also presented no evidence as 

to why the Poughs testimony would have been important to her case. But even 

if we assume that the Poughs testimony was significant to Barnes’s case for 

proving damages, the exclusion of the testimony did not prejudice Barnes’s 

substantial rights. Even if compliance with Rule 26 were excused, the district 

court’s exclusion of their testimony would still have been justified under 

Daubert. “The party offering the expert must prove by a preponderance of the 

evidence that the proffered testimony satisfies the rule 702 test” by showing 

that it is both “reliable and relevant.”14 Barnes presented no evidence of 

reliability at the district court. Further, the fact that the testimony could have 

been central to proving damages only bolsters our conclusion that the 

testimony needed to be properly grounded and introduced so that Boomtown 

could reasonably respond to it.15 Finally, a continuance would not have solved 

this defect. Barnes was provided with ample opportunity and leeway to comply 

12 Id.; Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996). 

13 United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007). 

14 Mathis v. Exxon Corp., 302 F.3d 448, 459-61 (5th Cir. 2002).

15 Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990) (“We shall assume 

arguendo that expert testimony was significant to Geiserman’s case—so much the more 

reason to be sure its introduction was properly grounded.”). 

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with Rule 26. The magistrate judge had already granted her an extension to 

properly designate her experts. And, as mentioned above, the fact that the 

Poughs denied being experts at all belies any argument that time was the only 

obstacle to the Poughs’ testimony. In sum, Barnes’s failure to designate her 

experts properly is not excused and the district court did not abuse its 

discretion by excluding her experts. 

Barnes also appeals the district court’s exclusion of the expert testimony 

of medical physicians that were not timely or properly designated. Barnes 

listed several physicians in her initial disclosures but did not originally

designate them as experts. In excluding their testimony, the district court 

explained that, “[t]he record before the Court, including Plaintiff’s disclosures, 

does not include statements or summaries of opinions of any of the physicians 

she has listed. These experts were not, and have not been properly designated 

and, as a result, will not be permitted to testify as experts during trial.” Barnes 

purported to designate these physicians as experts in her “Answer to 

Defendant’s Supplement of Experts” simply by listing their names and 

addresses. No expert reports, opinions, resumes, or any other materials 

designating them as experts were filed in the district court. Barnes has made 

no attempt to explain her failure to comply with the Federal Rules, nor has she 

presented any evidence that the proposed testimony would pass muster under 

Daubert. Further this designation occurred five months after the end of the 

discovery window. It was not an abuse of discretion to prevent these physicians 

from testifying as experts.16

16 See Barrett, 95 F.3d at 382 (“Appellants’ repeated dilatory behavior even in the face 

of explicit warnings and the apparent inability of the experts to produce relevant opinions 

within the specified time frame renders hollow any claims of unfair prejudice.”). 

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Barnes assails other of the district court’s pre-trial evidentiary rulings, 

but all are similarly non-persuasive. “Generally, we review a district court’s 

evidentiary rulings for an abuse of discretion.”17 Barnes challenges the district 

court’s ruling that she could not enter certain medical records into evidence. 

The district court’s ruling, however, only prevented Barnes from entering 

medical records not produced in discovery into evidence—and she had 

successfully produced extensive medical records and bills in connection with

her disclosures. The district court also prohibited Barnes or her lay witnesses 

from testifying to the content of these medical records unless such testimony 

was consistent with the Rules of Evidence. Contrary to Barnes’s assertion, 

adherence to the Rules of Evidence does not abridge her First Amendment 

rights. The district court did not abuse its discretion in making either of these 

rulings and Barnes does not point to any specific statements or documents that 

she alleges should have been admitted into evidence.

C

Barnes appeals the district court’s denial of a continuance of the trial 

date. Barnes moved for a continuance alleging health problems and that she 

required more time to respond to Boomtown’s discovery production. The 

district court denied this motion because “[t]he parties [had] been aware of the 

pending trial date for nearly a year.” We review a district court’s denial of a 

motion for a continuance for an abuse of discretion.18 “[T]he movant must show 

that the denial [of the continuance] resulted in specific and compelling or 

serious prejudice” in order to demonstrate an abuse of discretion.19 On appeal, 

17 Anderson v. Siemens Corp., 335 F.3d 466, 471 (5th Cir. 2003). 

18 United States v. Walters, 351 F.3d 159, 170 (5th Cir. 2003). 

19 United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation marks 

omitted). 

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Barnes alleges generally that the denial of the continuance prejudiced her 

because she was not “mentally capable of representing herself” at the time of 

trial. However, Barnes fails to present any specific facts that suggest that she 

was seriously prejudiced by the district court’s denial. Nor does she 

demonstrate with any specificity that she was prejudiced by the failure of 

Boomtown to produce certain discovery information at an earlier time. 

Without more than general allegations of injury, we conclude that the district 

court did not abuse its discretion in denying the continuance. 

D

Finally, Barnes alleges that the magistrate judge assigned to this case 

previously worked for the defense counsel’s law firm and therefore had a 

conflict of interest in participating in this case that prejudiced Barnes. Barnes 

does not present any evidence of this allegation. Further, Barnes never moved 

at the district court level for the magistrate judge to be recused, and this 

argument is waived.20 Finally, even if this allegation were true, prior 

employment at a law firm representing a litigant before the court does not 

create a per se requirement of recusal and evidence of bias must be presented.21 

* * *

For the foregoing reasons, the appeal is DISMISSED IN PART and the 

judgment of the district court is AFFIRMED. 

20 Stephenson v. Paine Webber Jackson & Curtis, Inc., 839 F.2d 1095, 1096 n.3 (5th 

Cir. 1988) (stating that plaintiff waives recusal challenge by not raising it until appeal). 

21 Cf. Patterson v. Mobil Oil Corp., 335 F.3d 476, 482-84 (5th Cir. 2003) (finding that 

a judge did not abuse his discretion when he denied plaintiffs’ motion to recuse himself 

because of previous employment with counsel representing the defendant in earlier 

litigation). 

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