IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20293

JOY PIPE, USA, L.P., 

 Plaintiff - Appellant Cross-Appellee

v.

ISMT LIMITED, 

 Defendant - Appellee Cross-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-2153

Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.

PER CURIAM:*

The dispute in this case stems from delivery of nonconforming steel 

bought by Plaintiff-Appellant Joy Pipe USA, L.P. (“Joy Pipe”), manufactured 

in India by Defendant-Appellee ISMT Limited (“ISMT”), and brokered in the 

United States by Fremak Industries (“Fremak”). The steel was marked as 

being of a higher grade than it actually was, and Joy Pipe, not observing any 

error, sent the steel to be transformed into couplings that were in turn sold to 

 

* 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

July 19, 2017

Lyle W. Cayce

Clerk

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others in Joy Pipe’s supply chain. Eventually, these steel couplings were placed 

deep inside two producing wells. These wells failed due to malfunction caused 

by the couplings, leading Joy Pipe to incur substantial costs in mitigation. Joy 

Pipe filed suit against ISMT, and a jury found in favor of Joy Pipe on claims 

for breach of the implied warranties of merchantability and fitness for a 

particular purpose. Nevertheless, the district court declined to adjust the

award amount to include prejudgment interest, post-judgment interest, or 

taxable costs. Joy Pipe appeals on these grounds, and ISMT cross-appeals,

raising other issues. We AFFIRM in part and REMAND in part. 

I. Background

The parties largely agree on the sequence of events culminating in this 

appeal. Plaintiff-Appellant Joy Pipe is a Texas limited liability company 

specializing in the business of selling quality steel couplings for use in oilfield 

drilling operations.1 It purchases the steel for these couplings and ships it to 

its fabricator, Texas Couplings, L.P., for machining. Defendant-Appellee ISMT

is a company registered in India that manufactures tubular steel stock used in 

fabricating steel couplings. Defendant Fremak is a New York corporation that 

distributes steel stock to fabricators. On July 29, 2010, Joy Pipe contracted 

with Fremak to purchase grade P-110 steel coupling stock manufactured by 

ISMT. The steel was shipped directly to Texas Couplings, machined into 

couplings, and sold to customers of Joy Pipe. Joy Pipe’s customers in turn sold 

the couplings to other companies in a supply chain that ended with two well 

owners, Vermilion Resources and NuVista Energy. 

Joy Pipe was notified of a well failure at the Vermilion well in August 

2012, and was notified of another failure at the NuVista Well in March 2013. 

 

1 Couplings are short lengths of pipe or tube with one socket at either end. They allow 

two pipes or tubes to be tightly joined together. 

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After learning of the Vermilion well failure, Joy Pipe, through Texas 

Couplings, investigated the couplings they had supplied to two of Joy Pipe’s 

customers—Welded Tube and Laguna Tubular. In particular, the entities

relied on the conclusions of third-party investigator Acuren Group, Inc. 

(“Acuren”), which identified the cause of the failure as a defective coupling 

manufactured from ISMT stock that was represented to be grade P-110, but 

which in fact displayed a hardness and microstructure typical of a much lower 

grade. The failure at the NuVista well was also alleged to have resulted from 

a failed coupling, prompting Joy Pipe to engage in further mitigation efforts at 

its own expense. In particular, Joy Pipe paid $520,058 to Texas Couplings for 

expenses incurred in locating non-conforming steel, and allowed Welded 

Tube—which incurred losses in repairs, investigation, and removal—to 

withhold $1,779,514.38 on amounts otherwise owed to Joy Pipe. 

Joy Pipe filed suit in federal district court against Fremak and ISMT, 

alleging breach of contract, breach of implied and express warranties, strict 

liability, negligence, and negligent misrepresentation. It sought damages for 

mitigation costs incurred by Joy Pipe, the amount Welded Tube withheld from 

Joy Pipe, the value of the defective steel, loss of business opportunity and lost 

profits, attorneys’ fees, costs, prejudgment interest, and post-judgment 

interest. All parties agreed on the applicability of Texas law. 

On December 8, 2014, the district court dismissed Joy Pipe’s claims for 

strict liability, negligence, and negligent misrepresentation, leaving the breach 

of warranty claims to proceed. The case proceeded to trial in late October and 

early November 2015. After trial, the jury returned a verdict finding that ISMT 

had breached the implied warranty of merchantability and implied warranty 

of fitness for a particular purpose and was liable for damages totaling

$2,299,572.38. Joy Pipe filed a motion to enter judgment and included a 

proposed final judgment providing for prejudgment interest as well as court 

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costs and post-judgment interest, to which ISMT responded. The district court 

then entered two orders, one summarily denying several motions, and the 

other entering final judgment pursuant to the jury verdict, without any 

mention of interest or costs. After denial of its motion to amend the judgment—

along with ISMT’s motion for judgment as a matter of law or for a new trial—

Joy Pipe filed this appeal. ISMT then filed a cross-appeal.

II. Discussion

A. Prejudgment Interest

This court reviews a district court’s ruling on prejudgment interest for 

abuse of discretion. Reyes-Mata v. IBP, Inc., 299 F.3d 504, 507 (5th Cir. 2002)

(per curiam).

1. Legal Standard

“Prejudgment interest is ‘compensation allowed by law as additional 

damages for lost use of the money due as damages during the lapse of time 

between the accrual of the claim and the date of judgment.’” Johnson & 

Higgins of Tex., Inc., v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998)

(quoting Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex. 

1985)). “The Texas Supreme Court has recognized two separate bases for the 

award of prejudgment interest: (1) an enabling statute; and (2) general 

principles of equity.” Int’l Turbine Servs. v. VASP Brazilian Airlines, 278 F.3d 

494, 499 (5th Cir. 2002). Statutory prejudgment interest is available only with 

respect to judgments in wrongful death, personal injury, property damage, and 

condemnation cases. Id. On the other hand, equitable prejudgment interest, 

which focuses on the need to compensate a plaintiff for the defendant’s 

beneficial use of the damage funds between the time the injury occurred and 

the time the judgment was rendered, is available as a matter of course, absent 

exceptional circumstances. See Concorde Limousines, Inc. v. Moloney 

Coachbuilders, Inc., 835 F.2d 541, 549 (5th Cir. 1987); see also Bituminous Cas. 

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Corp. v. Vacuum Tanks, Inc., 75 F.3d 1048, 1057 (5th Cir. 1996); Am. Int’l 

Trading Corp v. Petroleos Mexicanos, 835 F.2d 536, 541 (5th Cir. 1987). 

Although the precise contours of what constitutes an exceptional 

circumstance have not been wholly defined, our cases applying Texas law 

clarify the following rules: (1) exceptional circumstances exist for reducing an 

award of interest, “even to the point of elimination,” only if “the trial court 

cannot address through other means any equitable concerns that favor the 

defendant”; and (2) “[i]f a trial court finds such exceptional circumstances, it 

should explain them.” Concorde Limousines, 835 F.2d at 549 (citing Cavnar, 

696 S.W.2d at 553–54; Matthews v. DeSoto, 721 S.W.2d 286, 287 (Tex. 1986)

(per curiam)).

2. Analysis

ISMT contends that the equity principle underlying prejudgment 

interest does not apply to this case. It argues that an award of prejudgment 

interest is appropriate only when one party wrongfully detains and uses the 

money of someone else, and that here there has been no wrongful detention

because Joy Pipe has allegedly never been out of pocket for any of its losses. 

This is because the money awarded as damages for mitigation efforts pursued 

through Welded Tube was a credit that Welded Tube otherwise owed on a 

floating account, not a lump sum of cash, and ISMT claims that there is no 

evidence that Texas Couplings has yet been paid for its investigatory work. 

According to ISMT, if there was no money wrongfully detained, then there was 

no deprivation of funds upon which Joy Pipe could have been earning 

interest—a situation that qualifies as an exceptional circumstance. 

We conclude that remand is warranted on this issue. Texas law plainly 

requires an equitable award of prejudgment interest to a prevailing plaintiff 

as a matter of course. See, e.g., Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 

1329 (5th Cir. 1994). Although the trial court may exercise discretion to forego 

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such an award in the presence of “exceptional circumstances,” those 

circumstances must be explained. Concorde Limousines, 835 F.2d at 549. 

Failure to provide reasons detailing exceptional circumstances is grounds for 

remand. See Am. Int’l Trading Corp., 835 F.2d at 541 (“Because the trial court 

. . . provided no explanation for its denial of prejudgment interest . . . we 

remand this case for the trial court’s reconsideration of this issue. The trial 

court must determine whether exceptional circumstances warrant a denial of 

prejudgment interest in this case.”); Concorde Limousines, 835 F.2d at 550 

(remanding where the district court failed to explain exceptional 

circumstances justifying denial of prejudgment interest). Here, the district 

court failed to explain the exceptional circumstances justifying its denial of 

prejudgment interest. Thus, under this court’s jurisprudence, the district court 

abused its discretion. See Reyes-Mata, 299 F.3d at 507. We therefore remand 

with instructions to explain the exceptional circumstances, if any, that justify 

denial of prejudgment interest. See Am. Int’l Trading Corp., 835 F.2d at 541. 

B. Post-Judgment Interest

The propriety of a post-judgment interest award is a question of law that 

is reviewed de novo. Celtic Marine Corp. v. James C. Justice Cos., 593 F. App’x 

300, 305 (5th Cir. 2014) (per curiam); see also DP Sols., Inc. v. Rollins, Inc., 353 

F.3d 421, 435 (5th Cir. 2003).

1. Legal Standard

28 U.S.C. § 1961(a) provides that “[i]nterest shall be allowed on any 

money judgment in a civil case recovered in a district court.” “Federal law 

governs postjudgment interest in federal cases, including diversity cases.” 

Tricon Energy Ltd. v. Vinmar Int’l, Ltd., 718 F.3d 448, 456 (5th Cir. 2013). Our 

case law is clear that, given the unequivocal language of § 1961(a), an award 

of post-judgment interest is not discretionary. Id. at 456–57; Meaux Surface 

Prot., Inc. v. Fogleman, 607 F.3d 161, 173 (5th Cir. 2010). 

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2. Analysis

The district court erred in failing to award post-judgment interest. 

Section 1961(a) and the case law interpreting it clarify that district courts are 

required to award post-judgment interest on monetary judgments as a matter 

of course—they do not have discretion to deny it. Meaux, 607 F.3d at 173. Joy 

Pipe recovered a money judgment in a district court, but the district court 

denied recovery of post-judgment interest. Moreover, ISMT does not oppose 

Joy Pipe’s request for post-judgment interest at the federal rate. We therefore

remand with instructions to calculate and include post-judgment interest in 

the damages award at the appropriate, statutorily-specified rate. See Rollins, 

Inc., 353 F.3d at 435–36. 

C. Taxable Costs

This court reviews a district court’s decision to deny an award of costs to 

the prevailing party under Federal Rule of Civil Procedure 54(d) for abuse of 

discretion. See Moore v. CITGO Ref. & Chems. Co., 735 F.3d 309, 319 (5th Cir. 

2013).

1. Legal Standard

Rule 54(d)(1) states that “[u]nless a federal statute, these rules, or a 

court order provides otherwise, costs—other than attorney’s fees—should be 

allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). This court has 

acknowledged that Rule 54(d)(1) “creates ‘a strong presumption’ in favor of 

awarding costs to a prevailing party.” U.S. ex rel. Long v. GSDMIdea City, 

L.L.C., 807 F.3d 125, 128 (5th Cir. 2015). This presumption provides that “a 

district court ‘may neither deny nor reduce a prevailing party’s request for 

cost[s] without first articulating some good reason for doing so.’” Manderson v. 

Chet Morrison Contractors, Inc., 666 F.3d 373, 384 (5th Cir. 2012) (quoting 

Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)); Pacheco v. Mineta, 448 

F.3d 783, 794 (5th Cir. 2006). 

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2. Analysis

Joy Pipe was the prevailing party below, yet the district court neglected 

to award costs in its favor and did not explain its reasons for declining to do so.

Accordingly, we remand the case to the district court with instructions to either 

modify the judgment to include a cost award or provide reasons for not doing 

so, based on the presumption in favor of awarding costs evident in Rule 54(d)(1) 

and in light of this court’s precedent requiring either an award or an 

explanation. See, e.g., Manderson, 666 F.3d at 384.

D. One-Satisfaction Rule

ISMT argues that the district court erred in permitting simultaneous 

recovery under two implied warranty theories—merchantability and fitness 

for a particular purpose—rather than requiring Joy Pipe to elect its remedy 

between these two theories. “Whether to impose the election of remedies 

requirement under Texas law is a question of law that is reviewed de novo.” 

Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 335 (5th Cir. 2008).

1. Legal Standard

The “one-satisfaction rule” stands for the proposition that “a plaintiff 

cannot obtain more than one recovery for the same injury.” Household Credit 

Servs., Inc. v. Driscol, 989 S.W.2d 72, 80 (Tex. App.—El Paso 1998, pet. denied). 

Where a plaintiff advances alternate theories of liability, the one-satisfaction 

rule mandates only one recovery if: (1) there is only one injury; (2) the theories 

of liability are mutually exclusive; or (3) there are no separate damage findings 

based on the alternate theories of liability. Id. Damage awards premised on 

more than one theory do not amount to a double recovery “if the theories of 

liability arise from two separate and distinct injuries, and there has been a 

separate and distinct finding of damages on both theories of liability.” Id. 

(citing Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987)). 

Where the one-satisfaction rule applies, a plaintiff “has a right to a judgment 

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on the theory entitling him to the greatest or most favorable relief.” Boyce Iron 

Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988).

2. Analysis

According to ISMT, a judgment awarding damages on two alternate 

theories can occur only where those theories arise from separate and distinct 

injuries and separate and distinct damages findings are entered on each 

theory. ISMT contends: (1) that Joy Pipe suffered only a single injury—the 

economic loss caused by ISMT—that has been consistently argued in terms of 

alternate theories; and (2) that the jury did not make separate and distinct 

damages findings as to each theory because the elements of damages in the

jury charge do not differ between the theories.

Joy Pipe argues that the jury did award separate and distinct elements 

of damage. This is because in response to the interrogatory regarding breach 

of the implied warranty of merchantability, the jury awarded precisely the 

mitigation costs associated with Texas Couplings, and in response to the 

interrogatory regarding the warranty of fitness for a particular purpose, the 

jury awarded the mitigation costs associated with Welded Tube. 

We conclude that there is no double recovery in this case such as would 

offend the one-satisfaction rule. In reaching this conclusion, we acknowledge

that the injury in this case consists entirely of the mitigation costs associated 

with delivery of the defective steel, that the evidence establishing the course of 

conduct leading to the damages Joy Pipe claims is the same for both implied 

warranty claims, and that the damages questions submitted to the jury were 

the same for each alternate claim. What informs our judgment here, however,

is the recognition that the amounts awarded as to the two implied warranty 

claims were exactly equal to (1) the mitigation costs incurred by, and paid to 

Texas Couplings (equal to the award as to the implied warranty of 

merchantability claim); and (2) the mitigation costs incurred by, and paid to 

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Welded Tube (equal to the award as to the implied warranty of fitness for a 

particular purpose claim).

In other words, Joy Pipe is recovering for two separate and distinct 

amounts that it separately paid to different companies—Texas Couplings and 

Welded Tube—in connection with distinct occurrences creating different losses 

for different parties. Thus, Joy Pipe is not recovering for the same injury twice, 

and the district court did not err in permitting simultaneous recovery under 

both implied warranty theories. Am. Rice, 518 F.3d at 335. 

E. Jury Instructions

ISMT challenges the adequacy of the district court’s jury instructions on 

various grounds. “This court reviews jury instructions for abuse of discretion.”

Garriott v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011). 

1. Legal Standard

A party appealing a district court’s refusal to give a particular 

instruction to the jury must first show that the proposed instruction properly 

stated the law. See Julian v. City of Houston, 314 F.3d 721, 727 (5th Cir. 2002). 

Provided the challenging party succeeds in making this showing, that party 

must then “demonstrate that the charge as a whole creates substantial and 

ineradicable doubt [as to] whether the jury has been properly guided in its 

deliberations.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013)

(quoting Price v. Rosiek Constr. Co., 509 F.3d 704, 708 (5th Cir. 2007) (per 

curiam)). Moreover, even where the challenger proves the instruction 

misguided the jury, this court will reverse only if the erroneous instruction 

affected the outcome of the case. Id.

2. Analysis

ISMT emphasizes three allegedly deficient features of the district court’s 

jury instructions: (1) the district court’s failure to divide the jury charge by 

individual well failure, such that liability for each failure could be determined 

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separately; (2) the district court’s failure to include a specific instruction 

requiring the jury to find that ISMT’s actions actually caused the well failures; 

and (3) the district court’s failure to include an instruction on the new and 

independent cause doctrine. Finally, ISMT argues that even if none of these 

alleged errors is individually sufficient to require a new trial, they 

cumulatively combine to constitute an abuse of discretion. We address each of 

these contentions in turn. 

a. Division of the Jury Charge By Individual Well Failure

ISMT argues that because this case involved two separate well failures 

that allegedly caused separate amounts of damages for each, the jury charge 

should have been structured to permit the jury to separately judge liability and 

damages by well failure. It argues that in situations involving multiple 

injuries, the use of special interrogatories that break out questions of liability 

and damages are preferred. It then argues that there is ample evidence 

relating to causation that would have permitted the jury to find ISMT liable 

for the Vermilion well failure and not liable for the NuVista well failure, and 

that omitting to divide the jury charges accordingly prejudiced the jury’s 

damages determinations. 

Fed R. Civ. P. 49 provides district courts with broad discretion to frame 

written questions to the jury. Cent. Progressive Bank v. Fireman’s Fund Ins., 

658 F.2d 377, 381 (5th Cir. Unit A Oct. 1981) (citing Dreiling v. Gen. Elec. Co., 

511 F.2d 768, 774 (5th Cir. 1975)). 

“In determining the adequacy of the form of special 

interrogatories, we consider ‘(i) whether, when read as a whole and 

in conjunction with the general charge the interrogatories 

adequately presented the contested issues to the jury, . . . (ii) 

whether the submission of the issue to the jury was “fair”, . . . and 

(iii) whether the “ultimate questions of fact” were clearly 

submitted to the jury.’”

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Id. at 381 (alterations in original) (quoting Dreiling, 511 F.2d at 774); see also 

Bosarge v. Cheramie Maine, L.L.C., 675 F. App’x 417, 421 (5th Cir. 2017) (per 

curiam). 

Although in situations involving multiple “separate (and probatively 

uncertain) incidents,” special interrogatories directed to each incident would 

have the practical benefit of facilitating appellate review and are accordingly 

encouraged by this court, there is no authority indicating that this practice is 

mandatory. See McWilliams v. Texaco, Inc., 781 F.2d 514, 516–17 (5th Cir. 

1986); see also Baumstimler v. Rankin, 677 F.2d 1061, 1071–72 & n.15 (5th 

Cir. 1982). 

Here, we conclude that the district court did not abuse its discretion in 

determining not to categorize damages by well failure through use of special 

interrogatories. The interrogatories relating to damages for the implied 

warranty claims accurately and fairly state the elements of the damages 

sought—the costs of nonconforming coupling stock, the costs of mitigation 

efforts by Texas Couplings, and the costs of mitigation efforts by Welded Tube.2

Regardless of which well failure apprised the relevant parties of the need to 

undertake the mitigation efforts for which Joy Pipe now seeks damages, the 

damages sought can all be traced back to delivery of the same nonconforming 

goods. When read as a whole, an inquiry into the relationship between breach 

of the warranties and the damages resulting therefrom is precisely what the 

interrogatories submitted to the jury conveyed. See Cent. Progressive, 658 F.2d 

at 381. While dividing the damages by well failure may have been one way of 

presenting the questions to the jury to maintain consistency with the damages 

 

2 The damages-related interrogatories—virtually identical between the warranty 

theories—ask “[w]hat sum of money, if any, if paid now in cash, would fairly and reasonably 

compensate Joy Pipe for its damages, if any, that resulted from a breach of the implied 

warranty of [merchantability/fitness for a particular purpose] by any of those named below?” 

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discussions in the testimony, we cannot say that the district court’s decision to 

present the issues in another, equally accurate manner constitutes an abuse of 

discretion. Certainly it raises no issue of a substantial or ineradicable doubt as 

to the propriety of the jury’s guidance. Abraham, 708 F.3d at 620.

b. Causation of the Individual Well Failures 

ISMT argues that the jury should have been specifically instructed that 

it was required to find that ISMT caused the two well failures, as opposed to 

finding that ISMT breached the implied warranties and that those breaches 

alone caused Joy Pipe’s damages. In ISMT’s view, this constituted error 

because the well failures were the occurrences that led to the alleged 

consequential damages, and accordingly there could be no damages without 

proof that ISMT’s goods caused the well failures. ISMT claims that if the jury

had been instructed in the preferred manner, it would not have found ISMT 

liable on grounds of an insufficiency of evidence relating to causation. 

In Texas, to recover consequential damages for breach of implied 

warranty of merchantability or fitness for a particular purpose, a plaintiff must 

establish that the seller’s actions constituting a breach proximately caused 

those damages. See TEX. BUS. & COM. CODE § 2.715(b)(2) (noting that 

consequential damages include any “injury to person or property proximately 

resulting from any breach of warranty”); JCW Elecs., Inc. v. Garza, 257 S.W.3d 

701, 706 (Tex. 2008). Proximate cause in Texas has two elements—cause in 

fact (also known as substantial factor) and foreseeability. IHS Cedars 

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)

(citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). Cause in fact 

is established when the problematic act “was a substantial factor in bringing 

about the injuries, and without it, the harm would not have occurred.” Id. at 

799. Moreover, Texas law is clear that in the breach of implied warranty 

context: 

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[T]he question of ‘proximate’ cause turns on whether it was 

reasonable for the buyer to use the goods without such inspection 

as would have revealed the defects. If it was not reasonable for him 

to do so, or if he did in fact discover the defect prior to his use, the 

injury would not proximately result from the breach of warranty.

TEX. BUS. & COM. CODE § 2.715 cmt. 5; see also Signal Oil & Gas Co. v. 

Universal Oil Prods., 572 S.W.2d 320, 329 (Tex. 1978) (noting the relevance of 

a buyer’s negligence to the proximate cause determination in an implied 

warranty context). 

Here, we conclude that the district court did not abuse its discretion in 

framing the causation inquiry for the jury. The jury instructions contained 

detailed language concerning the nuances of proximate causation, 

incorporating all the elements as listed above. Specifically, the jury instruction 

stated: 

“Proximate cause” means a cause that was a substantial factor in 

bringing about losses, and without which cause such losses would 

not have occurred. In order to be a proximate cause, the act or 

omission complained of must be such that a person using ordinary 

care would have foreseen those losses or some similar losses, might 

reasonably result therefrom. 

Although we accept ISMT’s contention that the jury’s consideration of 

proximate cause must include causation for the well failures because they 

created repair costs that Joy Pipe sought to recover, that does not entitle ISMT 

to a jury instruction that explicitly mentions the well failures. The requirement 

is a showing of proximate causation between the breach and the losses 

(damages) resulting therefrom. JCW Elecs., Inc. 257 S.W.3d at 706. To 

accurately state the plaintiff’s burden on causation, the jury instruction need 

only communicate this causal connection. Naturally, where the well failures 

form part of the damages, a general instruction regarding proximate causation 

imports the need for a finding regarding those failures, but a decision not to

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specifically break out that finding cannot constitute an abuse of discretion. Cf. 

FED R. CIV. P. 49 (providing broad discretion to district courts in manner of 

charging the jury).

c. The New and Independent Cause Doctrine 

ISMT maintains that Welded Tube performed a negligent inspection of 

the supply yard containing the couplings manufactured from ISMT steel, 

resulting in a defective coupling making its way into the NuVista well. 

Accordingly, ISMT argues that it should have been permitted to include a jury 

instruction on the “defense” of new and independent cause and its relationship 

to proximate cause. ISMT acknowledges that there is no case establishing that 

the new and independent cause concept has relevance to a UCC breach of 

implied warranty claim, but argues that because a definition of proximate 

causation is required in a breach of warranty case, an instruction involving the 

related concept of a new and independent cause should also be given where 

there is evidence to support it. 

The concept of a “new and independent cause” is directly related to the 

concept of proximate cause, and refers to “the act or omission of a separate and 

independent agency, which destroys the causal connection between the 

negligent act or omission of the defendant and the injury complained of, and 

thereby becomes . . . the immediate cause of such injury.” Biaggi v. Patrizio 

Rest. Inc., 149 S.W.3d 300, 305 n.6 (Tex. App.—Dallas 2004, no pet.) (alteration 

in original) (quoting Young v. Massey, 101 S.W.2d 809, 810 (Tex. 1937)). The 

concept is distinct from the question of the buyer’s own negligence, already 

discussed above as germane to the proximate cause inquiry in a breach of 

warranty case. 

We hold that the district court did not abuse its discretion in refusing to 

instruct the jury regarding the new and independent cause doctrine. ISMT 

concedes that there is no authority suggesting that the concept has application 

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in a breach of warranty context, and a review of the applicable law reveals no 

statute or case to contradict this proposition. Accordingly, we conclude that the 

district court did not abuse its discretion in omitting an instruction relevant to 

the new and independent cause doctrine. Garriott, 661 F.3d at 247.

d. Cumulative Error 

ISMT argues that, notwithstanding their individual significance, the 

various errors it alleges pervaded the jury instructions combine to 

cumulatively constitute an abuse of discretion mandating remand for a new 

trial. 

The cumulative error doctrine applies where “an aggregation of nonreversible errors,” discussed individually, can combine to require reversal.

United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012) (en banc); see 

also United States v. Williams, 264 F.3d 561, 572 (5th Cir. 2001). However, 

“‘[c]umulative error’ justifies reversal only when errors ‘so fatally infect the 

trial that they violate[] the trial’s fundamental fairness,’” Delgado, 672 F.3d at 

344 (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)), and for 

that reason “the possibility of cumulative error is often acknowledged but 

practically never found persuasive.” Derden v. McNeel, 978 F.2d 1453, 1456 

(5th Cir. 1992) (en banc). 

Likewise, here we conclude that the cumulative error doctrine does not 

apply to this case. First, it is not clear that this Circuit’s cumulative error 

doctrine applies outside of a criminal context. Second, assuming arguendo that

the doctrine does have broader applicability, ISMT does not appear to have put 

forth any evidence that the “errors” of which it complains are so numerous and 

so egregious as to “fatally infect” the trial and undermine its “fundamental 

fairness” in violation of due process. See Delgado, 672 F.3d at 344. Thus, the

errors that ISMT alleges do not cumulatively amount to an abuse of discretion.

 Case: 16-20293 Document: 00514079747 Page: 16 Date Filed: 07/19/2017
No. 16-20293

17

III. CONCLUSION

For the foregoing reasons, we AFFIRM as to the amounts awarded on 

each theory of liability and as to the propriety of the district court’s jury 

instructions. We REMAND with instructions for the district court to: (1) 

calculate and award post-judgment interest at the statutorily-specified rate; 

(2) calculate and award prejudgment interest or explain the exceptional 

circumstances that warrant its denial; and (3) award taxable costs or explain 

its reasons for failing to do so. 

 Case: 16-20293 Document: 00514079747 Page: 17 Date Filed: 07/19/2017