IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11802

PLAINSCAPITAL BANK, 

 Plaintiff - Appellant 

v.

KELLER INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeals from the United States District Court 

for the Northern District of Texas

USDC No. 4:10-CV-926

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:*

A baby boy sustained massive brain damage from a tainted vaccine. 

Over a decade later, his guardian and trustee sued the school district where he 

was enrolled for discrimination in violation of the Americans with Disabilities 

Act and the Rehabilitation Act. The district court granted judgment as a 

matter of law to the school district after finding that the evidence did not show 

intentional discrimination. We AFFIRM.

 

* 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

August 17, 2018

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

When a tainted vaccine left him with life-altering brain damage at four 

months old, Terrence C. Rideau (known as “T.R.” or “Little T”)1 became a 

qualified individual under the Americans with Disabilities Act (“ADA”) and the 

Rehabilitation Act (“RA”). He suffers from encephalopathy, which is a brain 

disease. He is unable to speak, feed himself, or dress himself; he wears a 

diaper. Along with seizures, he suffers from dystonia, which is a physical 

ailment that causes his muscles to tense and his body to stiffen. 

In 2001, after litigation against the vaccine manufacturer concluded in 

a settlement, T.R. became the beneficiary of a guardianship management trust 

that would provide for his lifelong care. The trust, which was funded by the 

proceeds of the settlement, was established to provide for T.R.’s health, 

education, support, and maintenance. This includes medical treatment, 

therapy, equipment, and caregivers. The trustee and guardian of T.R.’s estate

is the plaintiff, PlainsCapital Bank. 

In 2002, Breggett and Terrence Rideau, T.R.’s mother and father, 

enrolled T.R. at Keller Independent School District (“Keller” or “Keller ISD”). 

Keller had a reputation as having one of the best special education programs 

in the area for disabled children. T.R.’s teacher at Keller was Dan Evans, an 

instructor with a master’s degree in special education and nearly two decades

of experience teaching disabled students. Evans taught a classroom with all 

severely disabled students. The classroom was fairly visible to those on the 

outside because an entire wall of the classroom was glass. Two paraprofessionals worked with Evans in T.R.’s classroom, and other adults 

frequently visited the classroom to provide therapy sessions to individual 

students. T.R. was seven years old when he enrolled at Keller. 

 

1 T.R. was 15 years old when this case was filed in district court in 2010. 

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Initially, the Rideaus trusted Evans, inviting him to attend T.R.’s 

birthday parties and hiring him as T.R.’s babysitter. The record does not 

indicate that the Rideaus complained about Evans’s treatment of T.R. for 

several years. From 2006 through 2010, however, several incidents occurred 

that the Rideaus later alleged were because Evans intentionally mistreated 

T.R. These incidents included T.R.’s first episode of dystonia, multiple knee 

injuries, a head bump, a broken thumb, and an emergency visit to the hospital 

when T.R. was screaming in pain. 

In December 2010, the Rideaus sued Keller, alleging violations of Title 

II of the ADA and Section 504 of the RA. At the 2013 trial, the Rideaus argued 

that T.R. was denied, among other things, the benefits of a safe school 

environment and of physical and occupational therapy. Keller argued that 

there was no evidence of intentional discrimination or deliberate indifference. 

After a two-week trial, the jury returned a verdict in favor of the Rideaus. 

Shortly thereafter, Keller moved to dismiss, arguing that the Rideaus lacked 

standing to sue as T.R.’s next friends because PlainsCapital as his trustee was 

the proper plaintiff. The Rideaus filed a motion, asking the court “to permit 

PlainsCapital to ratify the Rideaus’ actions in prosecuting T.R.’s federal claims 

against [Keller].” The court granted Keller’s motion, denied the Rideaus’ 

motion, and entered judgment in favor of Keller. 

On appeal, we affirmed the dismissal of the Rideaus’ individual mental 

anguish claims, vacated the judgment in Keller’s favor, and reversed the denial 

of PlainsCapital’s motion to ratify. Rideau v. Keller Indep. Sch. Dist., 819 F.3d 

155, 170 (5th Cir. 2016). On remand, the district court almost immediately 

entered a judgment on the jury verdict. Keller then renewed its motion for a 

judgment as a matter of law. In a lengthy opinion, the district court granted 

the motion because of insufficient evidence of deliberate indifference. It 

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alternatively conditionally granted Keller’s motion for a new trial. The 

plaintiff timely appealed. 

DISCUSSION

The standard of review of a ruling on a Rule 50(a) motion for judgment 

as a matter of law (“JMOL”) is de novo. Montano v. Orange Cnty., 842 F.3d 

865, 873 (5th Cir. 2016). We review a JMOL using the same standard as the 

district court, viewing all the evidence and reasonable inferences in the light 

most favorable to the nonmovant. Id. A decision granting the JMOL should 

be affirmed if “a party has been fully heard on an issue and there is no legally 

sufficient evidentiary basis for a reasonable jury to find for that party on that 

issue.” Id. (quoting Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015)). 

There is a legally sufficient evidentiary basis for a jury’s verdict if reasonable, 

fair-minded, and impartial jurors could reach different conclusions. DelanoPyle v. Victoria Cnty., 302 F.3d 567, 572 (5th Cir. 2002).

On appeal, the plaintiff argues that the grant of a JMOL was error 

because there was sufficient evidence that T.R. suffered discrimination based 

on his disability and that Keller was legally responsible. It also argues error 

in the conditional grant of a new trial, an issue we do not address in light of 

our conclusion that there was no error in granting a JMOL. 

We divide our discussion of the plaintiff’s arguments on the JMOL in 

two. First, we discuss the legal theory that went to the jury, namely, that 

Keller’s responses to numerous acts of mistreatment reflected deliberate 

indifference. We then turn to the theory that Keller was vicariously liable for 

the teacher’s intentional acts. The district court had held pretrial that 

vicarious liability was an applicable basis for liability in this case, then over 

objection it refused to give an explicit instruction on that theory to the jury.

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I. Deliberate Indifference

To recover under either Section 504 of the RA or Title II of the ADA on a

claim of disability-based intentional discrimination by a public entity, a

plaintiff must prove: (1) he is a qualified individual with a disability; (2) he is 

being denied the benefits of a public entity’s services, programs, or activities, 

or otherwise suffers intentional discrimination by the entity; and (3) the 

discrimination or denial of benefits was because of his disability. Doe v. 

Columbia-Brazoria Indep. Sch. Dist. by & through Bd. of Trs., 855 F.3d 681, 

690 (5th Cir. 2017). Judicial precedents concerning either Section 504 of the 

RA or Title II of the ADA generally apply to the other. Id. The parties agree 

that T.R. is a qualified individual with a disability. They disagree as to 

whether the factual record supports liability for deliberate indifference.

The following instructions to the jury explained deliberate indifference:

Defendant Keller ISD is not responsible or liable for the 

alleged mistreatment of Little T by Dan Evans or other employees 

of Keller ISD on account of Little T’s disability unless Plaintiffs 

prove by a preponderance of the evidence that: 

First: Little T was intentionally discriminated against 

because of his disability by Dan Evans or other employees of Keller 

ISD by subjecting him to mistreatment in Keller ISD’s programs, 

services, or activities; 

Second: This alleged mistreatment was so severe, pervasive, 

and objectively offensive that it effectively deprived Little T of the 

educational programs, services, or activities provided by Keller 

ISD; 

Third: Defendant Keller ISD had actual knowledge of the 

alleged mistreatment by Dan Evans or other employees of Keller 

ISD because of Little T’s disability; . . . 

Fourth: Defendant Keller ISD acted with deliberate 

indifference to such known mistreatment by Dan Evans or other 

Keller ISD employees.

The third and fourth instruction required Keller to have actual knowledge and 

to be deliberately indifferent. There is no dispute here about the instructions.

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As we have already discussed, our de novo standard of review requires 

that all evidence and any reasonable inferences be viewed in the light most 

favorable to the party whose jury verdict was overturned. Review of a jury 

verdict by an appellate court is to be “especially deferential.” EEOC v. Boh 

Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc) (citation omitted). 

“Judgment as a matter of law is appropriate where there is no legally sufficient 

evidence upon which the jury could find for a party on its claim.” Carmona v. 

Sw. Airlines Co., 604 F.3d 848, 855 (5th Cir. 2010). The evidence is sufficient 

if reasonable, fair-minded, and impartial jurors could reach different 

conclusions. Delano-Pyle, 302 F.3d at 572. 

We now examine the evidence. This is a large record with many 

witnesses. To guide our discussion, we rely on what the plaintiff has argued 

in its appellate briefing to show how it believes the district court erred. The 

plaintiff identifies several incidents that it argues show the district court 

misapplied the deliberate-indifference standard to Keller’s treatment of T.R. 

First, the plaintiff argues that Keller had actual knowledge as of April 

17, 2008, that Evans abusively mistreated T.R. On that day, a meeting 

occurred between Principal Taylor and Rebecca Bruton, who was Evans’s

classroom aide at the time. There, Bruton expressed concerns with how Evans 

treated T.R. In its appellate brief, the plaintiff argues that “[a]cknowledging 

that the administration had actual knowledge of Evans’s abuse then . . . , the 

district court wrongly sidestepped the devastating substance of what the 

administration learned from Ms. Bruton’s notes.” This argument 

mischaracterizes the district court’s opinion by omitting a critical qualifier. 

The district court wrote: “It is undisputed that Keller acquired actual 

knowledge of Evans’s alleged mistreatment of T.R. at this meeting.” (emphasis 

added). The trial transcript does not support the plaintiff’s framing of this 

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issue. In her testimony at trial, Bruton herself admitted she did not think 

Evans “ever acted to intentionally harm any child.” 

Moreover, the plaintiff argues that in this meeting Bruton expressed the 

“devastating substance” of how Evans was abusive towards T.R. Though 

viewing the evidence with great deference to the jury’s verdict, a reasonable 

factfinder could not agree with the plaintiff’s characterization. At trial, Bruton

explained the meeting. On direct examination, she testified Evans “yanked” 

T.R.’s gait belt and “kicked” T.R.’s foot, which caused her to express her 

concerns about Evans with Keller. Under cross examination, though, Bruton 

admitted she did not observe any reaction of pain following the “yank” and that 

by “kicking” she meant that Evans used his foot to move T.R.

Bruton’s concerns were not sufficient to provide Keller with actual 

knowledge that one of its employees was abusing a student. Bruton’s concerns 

also are insufficient to support the jury’s finding of “mistreatment so severe, 

pervasive, and objectively offensive that it effectively deprived Little T of 

education programs, services, or activities provided by Keller.”

The second grouping of evidence the plaintiff wants us to consider 

concerns Keller’s response to hearing Bruton’s descriptions of Evans’s 

treatment of T.R. The plaintiff characterizes the evidence heard by the jury as 

“credible evidence that Keller ISD did absolutely nothing more after writing a 

file memo and giving Evans a ‘slap on the wrist.’” The evidence admitted at 

trial, however, showed that Keller’s response was more than that. Based on 

the April 17 meeting, Principal Taylor understood Bruton to be expressing 

concerns about roughness, not abuse. If indeed Bruton thought Evans’s actions 

were abusive, then she was required to report the abuse to Child Protective 

Services (“CPS”), not just the administration. Bruton testified that she did not 

report any of Evans’s conduct to CPS, and in her meeting with Taylor she did 

not refer to any of Evans’s conduct as abuse. 

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Taylor testified that she understood the report to be that Evans was 

rough with students, which in her nearly four decades of teaching experience 

occurred most often during physical therapy sessions. In responding to a 

report that Evans was “rough” with students, Taylor questioned T.R.’s 

therapist and discussed if Keller was “on target with where [it] need[ed] to be 

with his physical therapy.” She also instructed Evans to be careful in handling 

students. After investigating and concluding that there was no evidence of 

abuse, Taylor made a note in Evans’s file and monitored his classroom more 

closely. At trial, the plaintiff did not impeach Taylor’s testimony in any way

— there was nothing to suggest her recollection was deficient or that her 

testimony was untrue. No reasonable factfinder could conclude that 

questioning T.R.’s therapist, questioning Evans and instructing him not to be 

so rough, documenting what occurred, and then continuing to monitor after 

receiving a report of roughness was deliberate indifference.

Third, the plaintiff has us examine the evidence of what occurred at year 

end, when “the outgoing administration chose to remain silent about the abuse 

in Evans’s classroom.” The plaintiff, though, fails to include a single citation 

to evidence in the record that would have enabled the jury to reach this 

conclusion. We have already found that there was no evidence to support that 

Keller had actual knowledge about abuse occurring in Evans’s classroom. 

Bruton did not consider it abuse. Taylor did not consider it abuse. The jury 

also heard, without any objection from plaintiff, that CPS investigated what 

happened in Evans’s classroom and Evans was pleased that the letter from 

CPS cleared him of any wrongdoing. If abuse did not occur, then a reasonable 

factfinder could not conclude that remaining silent constituted intentional 

discrimination. The evidence fails to show abuse occurred.

Fourth, the plaintiff argues that there was sufficient evidence that Keller 

knew that Evans “routinely dropped” T.R. by failing to follow the protocols for 

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lifting the child, causing injury. By itself, Evans’s failure to follow an internal 

policy requiring two-person lifts is not evidence of intentional discrimination. 

Analogously, violating a school’s administrative requirements is not enough to 

allow damages under Title IX. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 292 (1998). In addition, we agree with the district court’s 

conclusion that Keller did not have actual knowledge or notice that Evans was 

mistreating T.R. The evidence presented to the jury does not support a finding 

that Keller was on notice that Evans was abusive towards T.R.

Beyond what is argued in the plaintiff’s brief, there is evidence about the 

onset of dystonia, multiple knee injuries, a head bump, and a broken thumb.

It is unclear from the record if T.R. was at Keller when he received his first 

knee injury in May 2009. T.R.’s doctors both testified that T.R. had not 

regressed during his time at Keller. In addition, the doctors testified that the 

onset of dystonia was not triggered by physical or sexual abuse: “Dystonia is 

characteristic of brain dysfunction in the parts of the brain that control 

movement. . . . Dystonia is involuntary.” Bruton admitted at trial that, 

although she thought it was disrespectful, Evans’s actions did not physically 

harm T.R.

Furthermore, the record does not support that Keller caused the bump 

or knot on T.R.’s head. The medical records admitted at trial stated that T.R.’s 

injury was likely caused by an insect bite; any other explanation was purely 

speculative. Similarly, the record does not indicate that Evans or Keller was 

responsible for T.R.’s broken thumb. In her investigation, Keller’s principal

was unable to determine what caused the injury even after she “spoke to both 

the paraprofessionals, to the teacher, OT/PT, occupational therapist, physical 

therapist, the nurse, [and] anybody that had been in the classroom.” Finally, 

the record does not indicate that T.R.’s second knee injury was because of 

Evans’s or Keller’s action. None of the medical personnel who evaluated T.R. 

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observed a knee injury. Instead, the record supports that T.R. was constipated, 

received treatment, and recovered before his knee injury was discovered. 

The evidence does not support a factual link between T.R.’s injuries and 

any action or inaction by Keller that qualifies as intentional discrimination. 

For many of the injuries, the record does not show that Keller or any of its 

employees were responsible at all. Applying the same evidentiary standard as 

did the district court, we find no error in the grant of a JMOL insofar as 

evidence of deliberate indifference is concerned.

II. Vicarious Liability2 

Our description of the evidence on deliberate indifference also reveals

there is principally only speculation that Evans himself acted wrongfully. 

Nonetheless, instead of evaluating what fact findings jurors could make, we 

resolve arguments about vicarious liability on the basis of procedural default.

In denying summary judgment before trial, the district court concluded 

that under the ADA and the RA, Keller could be vicariously liable for the

intentionally discriminatory acts of its employees. The court relied on our 

decision in Delano-Pyle, where we held that “under either the ADA or the RA, 

the public entity is liable for the vicarious acts of any of its employees as 

specifically provided by the ADA.” 302 F.3d at 574–75 (emphasis omitted). We 

had also held that “[t]here is no ‘deliberate indifference’ standard applicable to 

public entities for purposes of the ADA or the RA. . . . [T]o receive compensatory 

damages for violations of the Acts, a plaintiff must show intentional 

discrimination.” Id. at 575. Applying both of those propositions, Delano-Pyle 

concluded the county was vicariously liable when a police officer arrested a 

 

2 The plaintiff at times refers to “respondeat superior” liability, but we will use the 

term of the caselaw we discuss, which is “vicarious liability.”

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hearing-disabled man but did not provide any accommodation despite notice 

that the arrestee likely was not understanding oral communication. Id. at 576. 

Neither a policymaker nor an official policy was required; liability could arise 

from an employee’s intentional acts. See id.

Keller has argued that the 2002 Delano-Pyle opinion reached the wrong 

conclusion by failing to apply prior and contrary decisions by the United States 

Supreme Court.3 The persuasiveness of arguments that one of our precedents 

is wrong is usually irrelevant due to this circuit tenet: “It is a well-settled Fifth 

Circuit rule of orderliness that one panel of our court may not overturn another 

panel’s decision, absent an intervening change in the law, such as by a 

statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v. 

Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Keller, though, 

refers us to a decision that after declaring a clear conflict between one of our 

precedents and a Supreme Court opinion predating the precedent, applied the 

Supreme Court’s analysis. Wilson v. Taylor, 658 F.2d 1021, 1034–35 (5th Cir. 

Unit B 1981).4 The Wilson court said the prior panel opinion “did not mention 

 

3 See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (applying Title IX analysis to Title 

II and Section 504 claims and requiring proof of intentional discrimination for damages); 

Davis by Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646–47 (1999) 

(holding that a school district could be liable under Title IX for peer-on-peer harassment if 

the school had actual notice and responded with deliberate indifference); Gebser, 524 U.S. at

277 (requiring proof of actual notice and deliberate indifference before a school district is 

liable under Title IX for a teacher’s sexual harassment of a student).

4 Among the plaintiff’s criticisms of Wilson is that it was issued by a Unit B Fifth 

Circuit panel. We thus describe such panels. Beginning in May 1980, in anticipation of the 

split of the six-state Fifth Circuit that finally occurred on October 1, 1981, all judges and 

cases from the eastern three states (the future 11th Circuit) were assigned to Unit B panels, 

while all the western states’ judges and cases were assigned to Unit A panels. Robert A. 

Ainsworth Jr., Fifth Circuit Court of Appeals Reorganization Act of 1980, 1981 BYU L. REV. 

523, 524 n.6 (1981). Wilson, a Florida case, was submitted to a Unit B panel. A decade later,

this court finally addressed the effect of such opinions: “We now squarely hold that all Unit 

B cases are precedent in the Fifth Circuit.” United States v. Rojas-Martinez, 968 F.2d 415, 

420 n.11 (5th Cir. 1992). Wilson’s precedential value thus is unspoiled by its Unit B origin.

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[the earlier Supreme Court opinion], and we have examined the briefs and 

ascertained that [the Court’s opinion] was not called to the attention of the [] 

panel.” Id. at 1035. This orderliness caveat has not developed much of a 

following in the Fifth Circuit, largely one hopes because its premise of a panel 

and parties who all fail to identify controlling Supreme Court authority is rare. 

Regardless, we will explain why there is no need for us to follow it here.

Relying on Delano-Pyle, PlainsCapital offered a jury instruction that 

would inform jurors of vicarious liability: 

Under the Rehabilitation Act and ADA, a public entity, such 

as Keller ISD, is liable for the vicarious acts of any of its employees. 

This means that Keller ISD is liable for any of its employees’ 

wrongful acts so long as the wrongful act or acts were committed 

in the course of the employees’ employment.

Keller objected and offered alternatives. When the district court finalized the 

instructions, no instruction referring explicitly to vicarious liability was given. 

Plaintiff’s counsel at a hearing made two objections. First, counsel argued that 

Keller could be held vicariously liable under the ADA and RA “and all we need 

to do is show that an employee of Keller ISD discriminated against Little T 

and, thereby, either excluded him from participating in or denied him the 

benefits of a service, activity, or program or, otherwise, discriminated against 

Little T because of his disability.” Second, counsel objected to the requirement 

that the plaintiff needed to show “knowledge of Keller ISD or deliberate 

indifference as those standards only apply to student on student harassment.” 

Both objections were overruled.

On appeal, though, the plaintiff does not argue that the district court 

should have granted an additional or different instruction on vicarious 

liability. Indeed, the plaintiff indicates the jury instructions did present the 

necessary standard to jurors, “the jury made the requisite findings for such 

[vicarious] liability, and judgment should alternatively have been entered on 

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that basis.” The referenced “findings” must be those on the verdict form, where 

jurors answered “yes” to each of the following questions: 

1. Was Little T intentionally discriminated against because 

of his disability by Dan Evans or other employees of Keller ISD by 

subjecting him to mistreatment in Keller ISD’s programs, services, 

or activities?

2. Was the mistreatment so severe, pervasive, and 

objectively offensive that it effectively deprived Little T of 

educational programs, services, or activities provided by Keller 

ISD?

3. Did Keller ISD have actual knowledge of the 

mistreatment by Dan Evans or other employees of Keller ISD 

because of Little T's disability?

4. Did Keller ISD act with deliberate indifference to such 

known mistreatment by Dan Evans or other employees of Keller 

ISD?

5. Did Keller ISD intentionally discriminate against Little 

T because of Little T’s disability by its actions or failure to act in 

response to its knowledge that Dan Evans or other employees of 

Keller ISD were intentionally mistreating Little T because of his 

disability?

In summary, the plaintiff’s argument is that affirmative answers to 

several of these questions that were intended to explain the elements of the 

deliberate indifference standard of liability constitute findings on the separate 

legal standard of vicarious liability. To emphasize the law as it was argued to 

the district court, we repeat part of our earlier quote of plaintiff’s offered but 

rejected instruction on vicarious liability: “Keller ISD is liable for any of its 

employees’ wrongful acts so long as the wrongful act or acts were committed in 

the course of the employees’ employment.” The only relevant employee was 

Evans, and the intentional acts under plaintiff’s theory would have to amount 

to Evans, because of T.R.’s disability, denying the child any benefits of the 

services, programs, or activities of the school. Delano-Pyle, 302 F. 3d at 574.

We start our analysis of this issue with identifying our standard of 

review. To set the stage for the identification, we remind that the jury verdict 

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was in favor of the plaintiff, reflected in jurors’ answers to interrogatories on 

deliberate indifference. After an initial appeal and remand, a JMOL was 

granted because the district court found a lack of evidence of the school 

district’s knowledge of its employee’s possibly abusive conduct. The response 

to the motion for a JMOL was the time for the plaintiff to argue that, regardless 

of the evidence of Keller’s knowledge, there was sufficient evidence to support 

vicarious liability and, further, that affirmative answers were given to correct 

jury interrogatories on that theory. The arguments were not made. Yes, the 

plaintiff argued there was sufficient evidence of Evans’s intentional acts, but 

the district court was never informed of this argument that the jury had 

already decided the issue of vicarious liability. That argument was 

particularly necessary because of the inconsistent argument made during trial 

that it was error not to give an instruction on vicarious liability. 

We characterize this new issue as a legal argument not presented to the 

district court in response to the dispositive motion for a JMOL. We have held 

that plain-error review applies when the movant for a JMOL did not include a 

separate legal issue in its motion and wanted to raise it for the first time on 

appeal. See Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 292 (5th Cir. 

2007). The same rule should apply when the party trying to preserve a verdict 

raises a new legal basis on appeal to set aside the grant of the JMOL.

For plain error, the party seeking reversal must show there was: “(1) 

‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Holmes v. 

Tex. A & M Univ., 145 F.3d 681, 685 (5th Cir. 1998) (quoting Johnson v. United 

States, 520 U.S. 461, 467 (1997)). If those factors are satisfied, then we may 

exercise our discretion to correct an error that undermines the fairness, 

integrity, or public reputation of judicial proceedings. Id. The newly asserted 

error is that sufficient instructions and interrogatories to support vicarious 

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liability were submitted to the jury, and therefore it was error to grant a JMOL 

by considering only the evidence regarding deliberate indifference.

The legal issues that must be decided are at least these: (a) what must 

be included in jury instructions for vicarious liability in this context, (b) did the 

instructions and interrogatories given on deliberate indifference, containing 

additional elements not relevant to vicarious liability, present the vicarious 

liability theory to jurors, and (c) if so, may a jury verdict be upheld on a theory 

not presented to jurors if the elements of that theory are a subset of those in a 

set of interrogatories given to the jury? The factual issue is simply whether 

there is some evidence in the record to support vicarious liability. 

On the key legal issues, plaintiff has provided little briefing. In its 

opening brief, it repeated the factual argument made in district court when 

opposing the JMOL, namely, that Evans’s discriminatory intent was clearly 

established. It did not, though, offer any legal support for the proposition that 

the district court could use that evidence to conclude the jury already had made 

findings on vicarious liability. The plaintiff here also reargues Delano-Pyle

and says the jury interrogatory on Evans’s intent is comparable to what was 

proven about the police officer in that precedent. Yet, there is no citation to 

any caselaw that would allow the district court or this court to use that 

interrogatory to impose liability under a new theory. 

Whatever may be the merits of the argument that some of the findings 

on deliberate indifference should be transformed into findings on vicarious 

liability, plaintiff has given us little argument and no authority to support it. 

Failure to provide meaningful briefing on an issue constitutes a waiver. See 

Malin Int’l Ship Repair & Drydock, Inc. v. Oceanografia, S.A. de C.V., 817 F.3d 

241, 244 n.2 (5th Cir. 2016). This issue was waived.

We need not reach the issue of whether Delano-Pyle is vulnerable to 

arguments about overlooked Supreme Court authority. AFFIRMED.

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