*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this opinion should not be published and is not precedent except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

For the Fifth Circuit

No. 96-30420

MAC SALES INC., ET AL,

Plaintiffs,

KENNETH P. CHOINA, SR.,

Plaintiff-Appellant,

VERSUS

E. I. DUPONT DE NEMOURS, AND COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(89-CV-4571-N)

July 7, 1997

Before REYNALDO G. GARZA, EMILIO M. GARZA, and DeMOSS, Circuit

Judges.

DeMOSS, Circuit Judge:*

Plaintiff Kenneth Choina sued defendant E.I. duPont de Nemours

& Co. (“DuPont”) for breach of contract. The district court

granted judgment as a matter of law in favor of DuPont after the
2

first trial. We reversed that judgment and remanded the case in

Mac Sales, Inc. v. E.I. du Pont de Nemours & Co., 24 F.3d 747 (5th

Cir. 1994). The jury in the second trial found for Choina,

awarding damages of $11.3 million. The district court, however,

determined that Choina’s marketing expert perjured himself. The

district court, pursuant to Federal Rule of Civil Procedure

60(b)(6), vacated the judgment and ordered a new trial. Choina

obtained a favorable jury verdict in the third trial, but the jury

awarded him only $176,000. 

Choina appeals, arguing that the district court erred in (1)

setting aside the second trial, (2) sanctioning him because of his

marketing expert’s conduct, and (3) lowering his damages for

failure to mitigate. Finding no reversible error, we affirm the

judgment of the district court.

BACKGROUND

Choina claims that DuPont breached its agreement giving him

the exclusive right to market a flame resistant fabric manufactured

by DuPont. Specifically, Choina contends that DuPont’s improper

requirement that he use only approved fabric cutters raised his

costs so high that he could not sell the clothes for a profit. 

The first jury trial took place in April 1993, with the

district court granting judgment as a matter of law in favor of

DuPont. Choina appealed and a panel of our Court reversed, sending
3

the case back for trial. See Mac Sales, Inc. v. E.I. du Pont de

Nemours & Co., 24 F.3d 747 (5th Cir. 1994).

At the second trial, in June 1995, marketing expert Randolph

Trappey testified for Choina. Trappey conducted a market survey

which determined that almost the entire market for Choina’s clothes

existed at a cost of less than the $40 per outfit Choina had to

charge if he used DuPont’s approved cutters. Exactly how the

survey was conducted and how Trappey described the survey to the

jury is the main issue in this case. 

Trappey testified at trial that he interviewed 500 companies

for his survey. This was done by selecting 500 companies which

bought fire resistant clothes. He and his research assistant then

phoned the safety director at each company, described the clothes

and asked how much the company would be willing to pay for such a

product. Trappey failed to inform the jury that, of the 500

companies called, he was only able to complete interviews with 100.

As Trappey explained after the trial, the act of calling a company,

regardless of whether the company answered his questions, was

referred to by Trappey as an “interview.” Trappey referred to

those complete questionnaires as “completed interviews.”

During the second trial, Trappey emphasized to the jury that

he interviewed 500 companies in coming to his conclusions about

Choina’s losses. For example, he said, “I might also add that we

interviewed in excess of 500 -- we pulled more than 500 people from
 

1 Federal Rules of Civil Procedure provides that “[o]n motion

and upon such terms as are just, the court may relieve a party . .

. from a final judgment . . . for (6) any other reason justifying

relief from the operation of the judgment.”

 

2 The district court stated that:

Mr. Trappey’s testimony today highlights the

misrepresentation upon which the jury relied. The

evidence that Mr. Trappey falsified his data and his

report and that he perjured himself is clear and

convincing.

4

our ‘barrel’ when we talked to them.” Trappey later said “I think

the final number came out to in excess of 580 people actually

interviewed throughout the United States.” 

In support of his claim that 500 people had been interviewed,

Trappey produced data sheets showing 500 separate phone calls.

During cross-examination, DuPont’s counsel showed that of the 36

pages of data sheets, all but nine pages were duplicates. Thus,

the data sheets showed only 100 completed interviews.

The jury in the second trial found for Choina and awarded

damages of $11.3 million. Following the second jury trial, DuPont

filed a motion under Federal Rule of Civil Procedure 60(b)(6)1 to

set aside the verdict on the ground that Trappey falsified his data

and perjured himself at trial. The district court required Choina

to turn over Trappey’s data and allowed DuPont to depose Raoul

Rosha, Trappey’s research assistant. After a hearing, the district

court granted DuPont’s motion to set aside the verdict. The

district court found clear and convincing evidence that Trappey

falsified his data and perjured himself at trial.2
While his methodology may have been correct, he

misrepresented his methodology to the jury. While this

fraud was not committed with the complicity of Plaintiff

or his Counsel, the court nevertheless concludes that

Plaintiff has prevailed in this case because of Mr.

Trappey’s fraudulent testimony.

That not only is the Defendant injured in this event, but

the entire judicial system and the Court suffers as a

result.

The Court will not allow a verdict founded upon

unmitigated fraud to stand.

Mr. Trappey’s testimony provided the entire basis for the

jury’s award. Without Mr. Trappey, there was no evidence

of a market for Plaintiff’s product. There is no basis

for Dr. Wood’s testimony.

This case is extraordinary, in that the sole evidence

supporting a multi-million dollar verdict is the clearly

fraudulent testimony of an expert witness who supplied

Defense counsel with fraudulent documents that prevented

Defendant from fully presenting its case.

Allowing this verdict to stand would cause substantial

injustice. The Court will not sit idly by and allow Mr.

Trappey to visit this injustice on the Defendant or the

Court. Accordingly, pursuant to Rule 60(b)(6), the Court

grants Defendant’s motion and the judgment entered in

accordance with the jury’s answers be set aside.

5

A third jury trial was held in March 1996. Trappey refused to

testify in that trial unless he was granted immunity. Choina used

a different marketing expert in this trial and DuPont also used a

marketing expert. The jury again found for plaintiff, but awarded

only $176,000.

Choina filed a timely notice of appeal.
 

3 Rosha testified that Trappey asked him how many surveys he

had done, to which he responded:

I said, “Well, yes, I remember it was around a hundred.”

And he said, ‘Well, I told the court 600.’

So -- I mean I -- I didn’t know what -- I mean I was

silent.

6

DISCUSSION

Rule 60(b)(6) Motion

“We employ an abuse of discretion standard in our review of

the district court's denial of Appellant's Rule 60(b)(6) motion.”

Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th Cir. 1993). Choina

argues that the district court abused its discretion in granting

the Rule 60(b)(6) motion for two reasons: (1) Trappey did not

perjure himself while testifying, and (2) because DuPont made the

strategic choice of attacking Trappey’s credibility and sending the

case to the jury, rather than seeking a recess or continuance, it

is not entitled to this extraordinary remedy.

Choina contends that Trappey did not lie. He may not have

been as clear as he could have about the difference between

interviews and completed interviews, but he did not commit perjury.

He contends that marketing research textbooks support his

interview/completed interview distinction. Choina argues that the

only evidence that Trappey lied comes from Rosha, his assistant,

who is only a graduate student.3 This evidence, he maintains, is
And then he said, “No. What I really meant was that I

know you did a hundred, but when I said 600, what I meant

was 600 people was [sic] contacted. So did -- did you --

didn’t you contact 600?”

So I told him that “Well, I couldn’t exactly say 600,

but, yes a lot of people were contacted.”

But, I mean, again as a -- I was surprised, because the

market research people whom you contact are not -- I mean

they are not part of -- they don’t constitute anything.

Its the same that responds.

7

insufficient to support a finding of perjury. Any confusion from

his testimony is because of a “testimonial mishap,” not perjury.

See Bronston v. United States, 409 U.S. 352, 358 (1973) (discussing

distinction between testimonial mishap and perjury).

Choina argues that even if Trappey committed perjury, the

verdict should not have been reversed. He contends that DuPont

became aware of the printout error before Trappey testified. Yet,

rather than seek a continuance to try and obtain the correct data,

DuPont chose to ambush Trappey with the mistake, trying to make him

look like a liar in front of the jury. Choina asserts that only

after this strategy backfired to the tune of $11.3 million did

DuPont claim that the verdict should be set aside. Choina

maintains that Rule 60(b)(6) is inappropriate where a party made a

“voluntary, deliberate, free, untrammeled choice.” Ackermann v.

United States, 304 U.S. 193, 198-201 (1950). Choina argues that

DuPont took a gamble and lost. A verdict should not be set aside

after a party makes a deliberate, although ultimately unsuccessful,
8

choice. 

We agree with DuPont that the district court’s grant of the

Rule 60(b)(6) motion should be affirmed. The district court’s

perjury finding is a factfinding, which we review only for clear

error. See Accura Systems, Inc. v. Watkins Motor Lines, Inc., 98

F.3d 874, 876 (5th Cir. 1996). There is ample evidence to support

the district court’s finding of perjury. First, only nine of the

36 pages of data Trappey gave were original, while the rest were

duplications. Second, Trappey testified that the data sheets

represented information obtained from over 500 respondents. Only

after being confronted did be correct himself and say only 100

interviews were completed. Third, Trappey never explained to the

jury the difference between interviews and completed interviews.

This shows that he intended the jury to think he received data from

over 500 companies. Finally, Trappey’s comments to Rosha indicate

that he knew he misled the jury when he said he performed over 500

interviews. 

It is likely that Trappey is correct in distinguishing between

interviews and completed interviews. That is not the issue,

though. What matters is that Trappey intentionally misled the

jury, leading it to think that he had actually received information

from 500 people, when he had only received information from 100

people. The district court determined that Trappey intentionally

misled the jury regarding the number of interviews conducted. The
 

4 Rule 60(b)(3) allows relief from judgments when there is

fraud by a party. Wright and Miller have noted that Rule 60(b)(6)

provides similar relief when, as in the instant case, the fraud is

not by a party but by a third-party witness. WRIGHT & MILLER § 2864

at 353 n.8.

9

district court observed the second trial, as well as the Rule 60(b)

hearing, and was in a better position to determine the credibility

of the witnesses and the harmful effect of Trappey’s testimony.

After reviewing the record, we cannot say that the district court’s

finding of perjury was clearly erroneous. 

Choina argues that the district court erred in granting Rule

60(b) relief because DuPont failed to seek a continuance after

learning of Trappey’s perjury. We disagree. Rule 60(b)(6) motions

are appropriate to remedy fraud by a third-party witness.4 11

WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 2864 at 352-53 (1995)

(“WRIGHT & MILLER”). The Supreme Court has stated that Rule 60(b)(6)

relief is appropriate only in extraordinary circumstances.

Ackermann, 304 U.S. at 199; see also Batts v. Tow-Motor Forklift,

Co., 66 F.3d 743, 747 (5th Cir. 1995), cert. denied, 116 S. Ct.

1851 (1996). We have said that the district court’s Rule 60(b)(6)

powers do not provide relief when a party could have, but did not,

present evidence at trial. See Government Financial Services v.

Peyton Place, Inc., 62 F.3d 767, 774 (5th Cir. 1995) (“[W]e have

expressly held that a district court's equitable powers under

section (b)(6) do not extend to considering evidence that could

have been presented at trial.” ); United States v. 329.73 Acres of
10

Land, 695 F.2d 922, 926 (5th Cir. 1983) (“This clause of the Rule

provides a grand reservoir of equitable power to do justice in a

particular case, but that well is not tapped by a request to

present evidence that could have been discovered and presented at

trial through the exercise of due diligence.”) (internal quotation

omitted); WRIGHT & MILLER § 2864 at 370 (Rule 60(b)(6) motion should

be denied when “the movant made a fair and deliberate choice at

some earlier time not to move for relief.”). 

After reviewing the record, we are convinced that DuPont took

appropriate steps after learning of Trappey’s perjury. DuPont

learned that the computer printout contained duplications only

hours before Trappey testified. Rather than seeking a continuance,

DuPont chose to vigorously cross-examine Trappey on the duplications. Given the circumstances of this case, we cannot say that

DuPont waived its right to Rule 60(b)(6) relief by not seeking a

continuance and instead cross-examining Trappey about his perjury.

DuPont’s choice to try and expose the perjury and hope the jury

disbelieved the witness is not the complete failure to present

evidence of which the Peyton Place Court spoke. Peyton Place, 62

F.3d at 774.

Sanctions 

The district court sanctioned Choina by (1) tolling prejudgment interest between the second and third trials and (2)
11

awarding DuPont reasonable costs incurred because of Choina’s new

marketing expert. Choina argues that the prejudgment interest

tolling was inappropriate because it gave DuPont a windfall.

During the time between the two trials, DuPont kept the money it

ultimately paid Choina, earning interest the whole time. Any

increase in prejudgment interest because of the delay did not harm

DuPont, because the interest was money it would not have earned but

for the delay. Choina contends that the award of costs is improper

because it is not justified under 28 U.S.C. § 1920 (the costs

statute) or Rule 54. 

A district court has inherent power “to manage [its] own

affairs so as to achieve the orderly and expeditious disposition of

cases.” Natural Gas Pipeline Co. v. Energy Gathering, Inc., 2 F.3d

1397, 1406 (5th Cir. 1993) (quoting Link v. Wabash R. Co., 370 U.S.

626, 630 (1962)), cert. denied, 510 U.S. 1073 (1994). We have

recognized that district courts’ inherent power “is not a broad

reservoir of power, . . . but a limited source. . . .” NASCO, Inc.

v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir.

1990), quoted with approval and aff’d, 501 U.S. 32, 42 (1991).

Nonetheless, we are persuaded that the district court did not abuse

its discretion in sanctioning Choina under its inherent power by

tolling the running of pre-judgment interest and awarding DuPont

its costs incurred because of Choina’s new marketing expert. 
12

Mitigation of Damages

In its charge in the third trial, the district court asked the

jury whether Choina failed to mitigate his damages. The jury

answered in the affirmative, lowering the verdict by 10%. Choina

argues that the district court erred in including an instruction

and interrogatory on mitigation, because there is no evidence in

the record of failure to mitigate. 

Choina also complains that the district court erred in using

a comparative fault method of determining mitigation. Specifically

the district court inquired as to “what percentage [did the jury]

find that the damages . . . were caused by the plaintiff’s failure

to mitigate his damages. . . .” The proper inquiry, Choina

contends, is by what dollar amount he failed to mitigate. Choina

cites no law for this proposition.

When reviewing jury instructions, we examine whether the

charge as a whole creates substantial doubt as to whether the jury

has been properly guided in its deliberations. See Davis v.

Avondale Indus., Inc., 975 F.2d 169, 174-75 (5th Cir. 1992). After

reviewing the record, we have no such doubt. DuPont presented

evidence of Choina’s failure to mitigate damages, and under

Louisiana law contract damages are to be reduced for failure to

mitigate. See Stanley v. Guy, 442 So.2d 579, 581 (La. Ct. App.

1983). 

Likewise, the district court did not err in using a percentage
13

rather than a dollar amount in its failure to mitigate

interrogatory. Under Louisiana law, failure to mitigate is the

equivalent of comparative fault. See Thibaut v. Thibaut, 607 So.2d

587, 614 (La. Ct. App. 1992) (Gonzales, J., concurring) (“Mitigation of damages is the functional equivalent of comparative fault

within the framework of a damage claim for breach of contract.”).

Therefore, a percentage decrease in recovery is not inappropriate.

Additionally, once the jury has found damages, there is no

real difference between asking that the jury find a specific dollar

amount as opposed to a percentage of a known amount. After the

jury had determined that damages were $140,000, its finding that

the damages resulting from failure to mitigate were 10% of $140,000

was the same as the jury finding that the damages resulting from

the failure to mitigate were $14,000. The only difference is who

performs the mathematical calculation, the judge or the jury. 

CONCLUSION

After reviewing the record and briefs, we are convinced that

the district court committed no reversible error. Accordingly, the

judgment of the district court is AFFIRMED.