IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 01-30342

___________________

DIANE CARR, Plaintiff-Appellant,

versus

WAL-MART STORES INC; ET AL

Defendants,

WAL-MART STORES, INC.,

Defendant-Appellee.

___________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

__________________________________________

November 14, 2002

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The opinion of the court issued on September 12, 2002, 304 F.3d 507, is withdrawn and the

following is substituted.

DIANE Carr (“Carr”) appeals the trial court’s denial of her motion for new trial, following

a jury verdict finding in favor of Wal-Mart Stores, Inc. (“Wal-Mart”) on Carr’s negligence claim. For

the reasons stated herein, we affirm in part, reverse in part, and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND2

On the morning of March 20, 1997, Carr was shopping at a Wal-Mart in Jenna, Louisiana.

While walking along an aisle, she was struck on the left side of her head by two attached plastic trash

containers, which had fallen from the top shelf. At the time of the accident, on an aisle immediately

adjacent to the aisle where Carr was struck, three Wal-Mart employees were inst alling a shelf on the

center piece that divides the two aisles. One week after the accident, Carr sought treatment from her

orthopedic surgeon, Robert Po (“Po”), complaining of injury to her right knee. After two months

of treatment, she underwent total knee replacement surgery.

Thereafter, Carr brought an action against Wal-Mart for negligence, asserting that the falling

co nt ainers exacerbated her pre-existing knee injury. The parties consented to a trial by jury

conducted by a magistrate judge. At the conclusion of trial, the magistrate judge submitted a verdict

form to the jury containing the following interrogatories:

1. Do you find by a preponderance of the evid ence that the defendant,

Wal-Mart Stores, Inc. was negligent in causing the accident? YES___

NO__

If your answer is “yes,” proceed to question number 2. If your answer

is “no,” please sign the verdict form and return to the courtroom.

2. Do you find that Wal-Mart Stores, Inc.’s negligence caused injury to

[Carr]? YES___ NO ____

Although the membe rs o f t he jury answered “NO” to question No.1, they nonetheless went on to

answer “NO” to question No.2 as well. When the jury returned the forms, the magistrate judge stated

“obviously there’s also an irregularity in that the jury answered question No.2 even though it should

not have been answered, but that has caused no harm and is not an in consistent verdict

. ” Neither

party objected to the cour t ’s determination. Following the judgment in favor of Wal-Mart, Carr3

moved for a new trial, contending that the verdict was agai nst t he weight of the evidence. In her

motion, Carr only challenged the jury’s answer to interrogatory No.1. Carr contends that she only

disputed the answer to question No.1 because she interpreted the magistrate judge’s comment that

the verdict was not inconsistent to mean that the answer to question No.2 flowed logically from the

answer to question No.1, and thus, a successful challenge to the jury verdict on question No.1 would

eliminate the basis for the jury’s answer to question No.2.

In his ruling on Carr’s motion, the magistrate judge stated that “[t]he direct and circumstantial

evidence in the c ase was overwhelming that the Wal-Mart employee more probably than not was

shaking the shelf and caused the [trash containers] to fall onto Ms. Carr’s head.” Thus, he concluded

that “the jury verdict finding that Wal-Mart.

. . was not negligent in causing the accident was contrary

t o the great weight of the evidence and [was] erroneous.” N onetheless, the mag istrate judge

determined that Carr was not entitled to a new trial. Specifically, he found that, “while the jury was

not required, and in fact should not have answered [interrogatory No.2], the fact that it did answer

it reflects its unanimous belief as to the proper response to the question.” T he judge stated that “[i]t

is unnecessary to require a new trial in this case where it is obvious that the unanimous jury has

considered the issues and has found the evidence as to causation lacking.”

Carr filed a motion for reconsideration, arguing that the jury’s response to i nterrogatory No.2

was compelled by its response to i nterrogatory No.1. The magistrate judge denied the motion, and

this appeal follows.

STANDARD OF REVIEW

In this circuit, it is well-settled that the “judge has a duty to attempt to reconci l e a j ury 's

apparently inconsistent responses to special interrogatories.” U nited States v. $9,041,598.68 (Nine4

Million Forty One Thousand Five Hundred Ninety Eight Dollars and Sixty Eight Cents)

, 163 F.3d

238, 249 (5th Cir. 1998). We grant considerable latitude to the trial court when interpreting special

interrogatories since it is in a better position “to analyze the jury's intention[s] and thus is charged,

in the first instance, with the obligation of giving effect to those intentions in light of the surrounding

circumstances.” Id. (citation omitted). Thus, this Court reviews a trial court’s treatment of special

interrogatories only for abuse of discretion. S ee P & L Contractors, Inc. v. Am. Norit Co., Inc.

, 5

F.3d 133, 138 (5th Cir. 1993).

"We will reverse the trial court's denial of a motion for new trial only when there is a clear

showing of an abuse of discretion.” Hiltgen v. Sumrall , 47 F.3d 695, 703 (5th Cir. 1995) (quoting

Dawsey v. Olin Corp.

, 782 F.2d 1254, 1261 (5th Cir.1986)). A trial court “should not grant a new

trial on evidentiary grounds unless the verdict is against the great weight of the evidence.” Whitehead

v. Food Max of Miss., Inc.

, 163 F.3d 265, 269 (5th Cir. 1998) (internal quotati on marks and citation

omitted). "[i]f the trial judge is not satisfied with the verdict of a jury, he has the right--and indeed

the duty --to set the verdict aside and order a new trial." Smith v. Transworld Drilling Co.

, 773 F.2d

610, 613 (5th Cir. 1985) (citation omitted).

DISCUSSION

I. Negligence claim

A merchant’s duty to protect customers from injury caused by falling merchandise is set forth

in Louisiana Revised Statute Annotated § 9.2800.6(A). The statute provides, in germane part, that

A merchant owes a duty to persons who use his premises to exercise reasonable care

to keep his aisles, passageways, and floors in a reasonably safe condition. This duty

includes a reasonable effort to keep the premises free of any hazardous conditions

which reasonably might give rise to damage.1 The magistrate judge improperly concluded that Smith was inapplicable to the present case

because “there was no evidence of a premise hazard” or that anything was wrong with the shelf or

the store itself. Instead, he applied the “traditional negligence analysis” set forth in L ittleton v.

Wal-Mart Stores, Inc.

, 747 So. 2d 701 (La. App. 1999). Under this analysis, in order to recover on

an action against a merchant, the customer who is injured from falling merchandise must show that

5 LA. REV. STAT. ANN. § 9.2800.6(A) (West 1997).

Louisiana courts have held that this duty “encompasses the responsibility on the part of store

employees to place the merchandise safely on the shelf in such a manner that the merchandise will not

fall.” M annina v. Wal-Mart Stores, Inc.

, 757 So. 2d 98, 102 (La. App. 2000) (citation omitted). In

order to prevail in a “falling merchandise” case against Wal-Mart, Carr was required to prove: (1) she

did not cause the merchandise to fall; (2) another customer in the aisle at the time the accident

occurred did not cause the merchandise to fall; and (3) the merchant’s negligence was the cause of

the accident. Carr must have shown that “either a store employee or another customer placed the

merchandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a

precarious position that eventually, it [fell].” D avis v. Wal-Mart Stores, Inc.

, 774 So. 2d 84, 90 (La.

2000) . An “unreasonably dangerous” condition on Wal-Mart’s premises is shown only if Carr has

negated the first two possibilities and demonstrated the last. I d. (citing Smith v. Toys ""R"" Us, Inc.

,

754 So. 2d 209, 212 (La. 1999)).

In Smith

, the plaint iff was alone in an aisle when a large toy fe ll fro m t he top shelf. She

sustained wrist injuries and, as a result, she brought a falling merchandise cause of action against the

merchant. 754 So. 2d at 210-11. Applying the three elements necessary to sustain a falling

merchandis e claim, and relying solely on the plaintiff’s testimony, the district court found that the

plaint iff demonstrated that her injuries were caused by the negligence of the merchant, even in

absence of a direct explanation as to why the merchandise fell. 1 Id. at 215.a “hazardous condition or defect existed, which caused injury.” I d. at 703. It is well-settled that in

diversity ca s es, a district court will “seek guidance by looking to the precedents established by

inte rmediat e state appellate courts” only when the state supreme court has not decided an issue.

Howe ex rel. Howe v. Scottsdale I ns. Co. , 204 F.3d 624, 628 (5th Cir. 2000). Otherwise, “[it is]

bound to apply the law as interpreted by the state's highest court.” H arken Exploration Co. v. Sphere

Drake Ins. PLC

, 261 F.3d 466, 471 (5th Cir. 2001) (internal quotati on marks and citations omitted).

Because the Supreme Court of Louisiana has already decided t he appropriate burden in “falling

merchandise” cases, the magistrate judge incorrectly relied upon state appellate court case law.

6 In its memorandum ruling, the magistrate judge found t hat the jury’s “No” response to

i nterrogatory No.1 was against the weight of the evidence. Specifically, he found that “[w]hile the

employee did not directly push the merchandise over onto [Carr]

. . . the direct and circumstantial

evidence in [this] case is overwhelming that the Wa l-Mart employee more probably than not . . .

caused the garbage cans to fall onto Carr’s head.” We agree.

Applying Smith to the instant case demonstrates that the jury’s verdict was erroneous. First,

Wal-Mart has not presented any evidence refuting Carr’s testimony t h at she did not cause the

accident. Second, Carr testified t hat t here were no other customers in the area at the time the

accident occurred. Further, Jesse Berry (“Berry”), a Wal-Mart employee, who was installing the shelf

around the time the accident occurred, testified that when he heard the trash containers fall, he ran

to the aisle where Carr was struck, and did not see anyone other then Carr in the area. Lastly, the

evidence clearly establishes that a Wal-Mart employee caused the containers to be in such a

precarious position that they ultimately fell.

During trial, Berry a dmit t ed that the trash containers fell on Carr. In addition, at oral

argument, Wal-Mart conceded that there is no dispute that the containers fell off the shelf and struck

Carr. Furthermore, Berry testified that, although it is was possible that the installation of the shelf

caused the co nt ainers t o fall, he did not recall shaking the center piece while installing the shelf.7

However, Berry conceded that when the accident took place, he believed that the containers fell as

a result of his installation of the shelf. Carr’s trial counsel then asked Berry, “[o]ther than what you

were doing, was there anything else happening that you could see or hear to that shelf that you could

say, that’s what caused the garbage can to fall”? Berry responded “[n]o, sir.” In addition, Terry

Knapp, a Wal-Mart assistant manager, who was supervising the installation on the shelf, stated that

it was possible that Berry shook the shelf causing the garbage containers to fall and that he did not

know whether the containers were secure on the shelf at the time Carr was struck.

The evidence presented at trial strongly indicates that Carr has proven the elements necessary

to sustain a “falling merchandise” cause of action. Carr submitted evidence that (1) she did not cause

the containers to fall, (2) there were no other customers in the area, and (3) a Wal-Mart employee

caused the merchandise to be in an unstable position which resulted in it eventually falling. Further,

Wal-Mart has not pointed to any concrete evidence contradicting Carr’s assertions. Thus, t he

magistrate judge properly found that the jury’s det ermination that Wal-Mart was not negligent in

causing the accident was against the great weight of the evidence.

II. Inconsistent Jury Instructions

The Seventh Amendment “fashions [a] federal policy favoring jury decisions of disputed fact

questions.” A tlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. , 369 U.S. 355, 360 (1962)

(internal quotati on marks and cita t ion omitted). Thus, the courts “must attempt to reconcile the

jury’s findings, by exegesis if necessary.” Ellis v. Weasler Eng’g, Inc. , 258 F.3d 326, 343 (5th Cir.

2001) (citing Gallick v. Baltimore & O.R. Co. , 372 U.S. 108, 119 (1963)). If the answers to the

interrogatories seem to conflict, “[the court is] obligated to reconcile the answers, if possible, in order

to validate the jury’s verdict.” W hite v. Grinfas

, 809 F.2d 1157, 1161 (5th Cir. 1987). W hen8

reconciling conflicts, it must be determined whether “the answers may fairly be said to represent a

logical and probable decision on the relevant issues as submitted.” Id. (citation omitted).

In the instant case, the court so actively reconstructed the jury verdict so as to move beyond

merely “validating the jury’s v erdict.” A f ter the jury rendered its verdict, the magistrate judge

commented that “obviously there’s

. . . an irregularity in that the jury answered question No.2 even

though it should not have been answered, but

. . . has caused no harm and is not an i n consistent

verdict .” (emphasis added). However, in ruling on Carr’s motion for new trial, the magistrate judge

remarked that the jury answered “No” to i nterrogatory No.2 “apparently finding that any negligence

of Wal-Mart did not cause injury to the plaintiff.” T he judge explained that “even though the jury’s

finding that Wal-Mart was not negligent [was] against the great weight of the evidence, the jury went

on to find that any negligence of Wal-Mart did not cause injury to the plaintiff.” Accordingly, the

judge concluded that “it [was] unnecessary to require a new trial in this case where it is obvious that

the unanimous jury has consi d ered the issues and has found the evidence as to causation lacking.”

After the court made its ruling, Carr filed a motion for reconsideration. The magistrate judge denied

the motion.

On appeal, Carr maintains, as she did in her motion for reconsideration, that in considering

her motion for new trial, the trial court adopted an interpretation of the jury’s verdict that created a

literal inconsistency. Wal-Mart notes that the magistrate judge’s “constitutional mandate to create

consistency requires that we look beyond the face of the interrogatories to the court’s instruction’s

as well.” Alverez v. J. Ray McDermott & Co., Inc. , 674 F.2d 1037, 1040 (5th Cir. 1982) (citation

omitted). The instructions given by the magistrate judge provided, in relevant part:

Plaint iff bears the burden of proving both the existence of an injury and the cause and9

effect relationship between the accident and the injury. You should answer this

question by deciding whether Plaint iff would probably not have suffered the claimed

injuries in the absence of the Defendant’s conduct. If . . . Plaintiff probably would not

ha ve suffered the claimed injuries in the absence of Defendant’s conduct then you

must conclude Defendant’s conduct did play a part in Plaintiff’s injury and you may

proceed to the next element.

Wal-Mart argues that these instructions made clear that the jury’s obligation was to determine

whether Carr’s injuries were caused by Wal-Mart’s conduct; that is, whether her injuries were caused

by the accident. Thus, Wal-Mart maintains that it is probable that the jury’s response to interrogatory

No.2 was not merely a reiteration of its response to i nterrogatory No.1, but rather, a distinct finding

that Carr’s knee injury was not caused by the accident. Therefore, it asserts that the magistrate judge

properly applied the jury’s answer to i nterrogatory No .2 t o give effect to the jury’s ultimate

conclusion that Wal-Mart did not cause Carr’s injuries. We disagree.

Although we disagree with Wal-Mart’s assertion, we acknowledge the “district court[‘s] wide

discretion in deciding whether the jury’s answers to the court’s questions are cl ear.” R ichard v.

Firestone Tire & Rubber Co.

, 853 F.2d 1258, 1260 (5th Cir. 1988); see White v. Grinfas

, 809 F.2d

1157 (5th Cir. 1987). In accord with that discretion, there is a longstanding principle that a judge has

a duty to harmonize inconsistent jury responses. See Gallick v. Baltimore & Ohio R. Co.

, 372 U.S.

108, 119 (1962). In this case, however, the district court’s findings fell outside of that wide scope of

discretion as defined by our Circuit precedent.

In a case procedurally similar to this one, we addressed the effect that answers to

interrogatories, given in viol at io n o f the court's expressed instructions, have on the verdict. S ee

White

, 809 F.2d 1157 (5th Cir. 1987). In White

, t he district court submitted nineteen interrogatories

to the jury. I d. at 1161. The inst ructions following interrogatory No.3 stated “[i]f you have10

answered ‘we do not’ to special i nterrogatory No.3, then do not answer any of the following special

issues.” I d. at 1162. The jury answered “No” to interrogatory No.3, but nonetheless, continued to

answer the remaining interrogatories. Id. at 1161. On appeal, this Court held:

Because all the questions subsequent to question 3 were predicated on an affirmative

response to that question, the subsequent answers had to conflict with the answer to

question 3, regardless of whether they were also in conflict with each other.

***

To effectuate best the intent of the jury, we hold that if the district court has correctly

found that the jury's answer to a question that was supposed to termi n ate further

inquiry is clear and disposes of the legal issues, on review we must ignore the jury's

necessarily conflicting answers to any other questions. The subsequent questions are

by definition irrelevant in these circumstances, and cannot be us e d to impeach the

jury's clear verdict.

Id.

We find that White is persuasive in the instant case. Similar to the situation in White

, the jury

was instructed that “[i]f [its] answer [to i nterrogatory number 1] is ‘yes,’ proceed to [interrogatory ]

number 2. If your answer is ‘no,’ please sign the verdict form and return to the courtroom.” The jury

answered “NO” to i nterrogatory No.1, and proceeded to answer “NO” to i nterrogatory No.2 as well.

Noting that there was an irregularity in t he verdict in that the jury answered interrogatory No.2 in

violation of the instructions given, the magistrate judge, nonetheless, accepted the jury’s response to

i nterrogatory No.1 as dispositive of the negligence issue, and determined that the jury’s additional

response to i nterrogatory No.2 was harmless. However, in ruling on Carr’s motion for new trial, the

trial court sua sponte adopted the jury’s response to interrogatory No.2 and used i t as a basi s for

denying Carr’s motion. By concluding that the jury gave an erroneous answer to question No. 1 but

that the same jury gave a reasoned answer to question No. 2 in violation of their charge, the judge

did not “effectuate the best intent of the jury,” consistent with White

, but rather used the unnecessary11

answer to impeach the foundation of Carr’s motion for a new trial. The additional response to

question No. 2 was hardly harmless.

The Supreme Court held in Gallick v. Baltimore & Ohio R. Co. that when the jury answers

interrogatories inconsistently, the judge has a duty under the Seventh Amendment to "harmonize" or

"reconcile" them. 372 U.S. 108, 119 (1962). We have concluded that a district court does not abuse

its discretion in reconciling verdicts containing answers to interrogatories that the jury was instructed

not to answer, when it either disregards the superfluous answers in their entirety, or resubmits the

interrogatories to the jury. S ee Richard

, 853 F.2d at 1260 ; Knowlton v. Greenwoo d Independent

School Dist.

, 957 F.2d 1172, 1179 (5th Cir. 1992); see also Floyd v. Laws

, 929 F.2d 1390, 1397 (9th

Cir. 1991) (holdi ng t hat “special findings issued in violation of the trial court's express[ed]

instructions do not constitute legitimate or viable findings of fact. The trial court must therefore

dismiss them as surplusage, as a matter of law.”); Kavanaugh v. Greenlee Tool Co.

, 944 F.2d 7, 10

(1st Cir. 1991) (upholding a district court’s decision to disregard interrogatories answered as a result

of the jury’s failure to comply with the court’s written instructions).

Here, however, for the purposes of Carr’s motion, the trial court actually gave effect to the

jury’s answer to i nterrogatory No.2, which, pursuant to White

, necessarily conflicted with its

response to i nterrogatory No.1. There is no dispute that the jury was instructed to answer question

No. 1 but answered question No. 2 in violation of the jury instructions. Yet, the judge found that the

jury response to question No. 1 was erroneous and that the response to questi on No. 2 was

reasonable. In this context, the judge’s findings do not “fairly

... represent a logical and probable

decision on the relevant issues as submitted.” White , 809 F.2d at 1161.

Furthermore, we are not persuaded by the trial court’s conclusion that “[i]t is unnecessary to12

require a new trial in this case where it is obvious that the unanimous jury has considered the issues

and has found the evidence as to causation lacking.” In the present case, the jury form instructed the

jury to refrain from answering i nterrogatory No.2 if it found that Wal-Mart was not negligent under

interrogatory No.1. In such a case, there is no way to tell whether the jury actually deliberated the

causation question, or whether its answer to the causation question was logically compelled from its

answer to the negligence question. The district court's determination that the jury actually deliberated

the issue of causation amounts to nothing more than pure speculation. There were no notes from the

jury concerning the instruction, nor any polling of the jury, which would shed light on this question.

Thus, it ap pears t hat the magistrate judge decided the causation question according to his own

assessment of the evidence, which is tantamount to a bench trial in violation of Carr’s right under the

Seventh Amendment to a trial by jury. The Federal Rules of Civil Procedure provide that “[t]he right

of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of

the United States shall be preserved to the parties inviolate.” FED R. CIV. P. 38(a). "Maintenance

of the jury as a fact- finding body is of such importance and occupies so firm a place in our history

and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with

the utmost care." J ennings v. McCormick

, 154 F.3d 542, 545 (5t h Cir. 1998) (citation omitted).

Because it is questionable whether the jury actually deliberated the causation issue, and since the

magistrate judge’s acceptance of the jury’s response to i nterrogatory No.2 conflicts with our decision

in White

, we conclude that the trial court abused its discretion in ut ilizing the jury’s response to the

causation i nterrogatory as grounds for denying Carr’s motion for new trial. We, therefore, reverse

the court’s ruling.

CONCLUSION13

For the reasons stated herein, we AFFIRM in part, REVERSE in part, and REMAND for a

new trial.

AFFIRMED in part, REVERSED in part, and REMANDED.2 In my view, the jury’s answer to i nterrogatory no . 2 was necessary. See s upra at 3-4

(discussion of causation of accident versus causation of injury).

3 The magistrate judge concluded that the jury’s response to i nterrogatory No. 1 “was contrary

to the great weight of the evidence and [was] erroneous.” The majority makes much of the fact that

the judge found the jury’s answer to be “erroneous”; however, the magistrate judge’s precise legal

holding was that, in the judge’s view, the jury’s verd i ct was not supported by the evidence. For

purposes of this dissent, I assume without deciding that the magistrate judge properly set aside the

jury’s answer as “against the great weight of the evidence.”

14 EMILIO M. GARZA, Circuit Judge, dissenting:

This case requires us to determine whether the magistrate judge, who tried this “falling

merchandise” case, abused his discretion when he gave effect to the jury’s response to i nterrogatory

No. 2 after determining that the jury’s response to i nterrogatory No. 1 was “against the great weight

of the evidence.” More specifically, this case asks us to decide whether a trial court should disregard

“unnecessary” jury responses 2 that are consistent with bo th the jury’s verdict and the trial court’s

view of the evidence simply because one of the jury’s answers was found to be “erroneous.” 3 The

majority concludes that the magistrate judge “did not ‘effectuate the best intent of the jury’” as our

precedent requires, and thus abused his wide scope of discretion. Maj. Op. at 10. Because I believe

the majority misconstrues our precedent on this issue, I respectfully dissent.

The majority cites our opinion in White v. Grinfas to support its reasoning. 809 F.2d 1157

(5th Cir. 1987). In W

h ite , t he jury was instructed that if it answered “No” to question 3 on the

verdict form, it should not answer any o f t he remaining sixteen questions. Although the jury

answered “No” to question 3, it failed to follow the court’s instructions and went on to answer five

more question s

. Unfortunately, two of the jury’s unnecessary answers were arguably inconsistent

with one a no t her. The losing party at trial then attempted to impeach the jury’s otherwise clear

verdict by relying on the potential inconsistency between the jury’s unnecessary re sponses. On15

appeal, we affirmed the trial court’s entry of judgment based on the jury’s d ispo sit ive finding on

question 3. In doing so, we held that “if the [trial judge] has correctly found that the jury’s answer

to a question that was supposed to terminate further inquiry is clear and disposes of the legal issues,

on review we must ignore the jury’s necessarily conflicting answers to any other questions.” I d.

, 809

F.2d at 1161.

White , however, is the converse of this case. The majority reads W hite to mean that

unnecessary jury answers cannot be used if the court has already found the jury’s answer to a

necessary i nterrogatory to be agains t t he weight of the evidence. The specifics of W hite are not

applicable to this case, ho wever. Rather than stating a broad rule for interpreting irregular jury

verdicts, White holds only the converse: that is, that a jury’s unnecessary responses cannot be used

to impeach that jury’s otherwise clear verdict. W hite

, 809 F.2d at 1161. W hite does not address the

instant situation—where the jury’s necessary response is clear but found to be unsupported by the

evidence and the jury’s “unnecessary” response is also clear, supports the jury’s verdict, and, most

importantly, does not conflict with the court’s view of the evidence.

The error in the majority’s analysis is evident when one considers the purpose of the White

rule—“[t]o effectuate best the intent of the jury.” I d. Although the majority rec ites this exact

language, it seemingly fails to recognize that the Supreme Court has long since held that “[w]here

there is a view of the case that makes the jury’s answers to special interrogatories consistent, they

must be resolved that way.” A tlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd

, 369 U.S. 355,

364 (1962); see also Ellis v. Weasler Eng’g Inc.

, 258 F.3d 326 (5th Cir. 2001) (“We are required

under the Seventh Amendment to make a concerted effort to reconcile apparent inconsistencies in

answers to special verdicts if at all possible .”) (citing Atlantic & Gulf Stevedores

, 369 U.S. at 364)4 As a justification for her failure to object to the irregularity of t he jury’s answers, Carr

concedes that the jury’s negative answers to interrogatories Nos. 1 and 2 were consistent with each

other. Nonetheless, the majority concludes that the answers to interrogat o ries Nos. 1 and 2 were

necessarily inconsistent based on our reasoning in White

. In W hite

, we stated that the jury’s answers

to five additional questions were inconsistent with the jury’s negative response to question 3 because

the subsequent questions were predicated on an affirmative response to questions 3. W hite

, 809 F.2d

at 1161 (“Because all t he questions subsequent to question 3 were predicated on an affirmative

response to that question, the subsequent answers had to conflict with the answer to questi on 3 .

16 (emphasis added); Richards v. Firestone Tire & Rubber Co. , 853 F.2d 1258, 1260 (5th Cir. 1988)

(“Courts are obligated to reconcile a jury’s answers when possible.”). The principle guiding all of

these cases is simple—where possible, we must interpret a jury’s answers in such a way as to best

fulfill the intent of the jury. To set aside a jury’s clear resolution of disputed questions of fact because

of a harmless irregularity in the way they answered special int errogatories would run afoul of the

federal policy favoring jury verdicts set forth in the Seventh Amendment. A tlantic & Gulf Stevedores

,

369 U.S. at 364 (“For to search for one possible view of the case which will make the jury’s finding

inconsistent results in a collision with the Seventh Amendment.”).

Here, two issues were hotly cont est ed before the jury—whether Wal-Mart’s negligence

caused the accident (i.e. the falling of the trash cans) and whether Wal-Mart’s negligence caused the

knee injury for which Carr sought damages. Both issues were submitted to the jury with no objection

from the parties. The operative word in interrogatory No. 2 is the word “injury”—whether WalMart’s “negligence caused injury to [Carr]?” The jury said, “No,” and there was ample evidence to

support the jury’s ve rdict. Neither party objected to question 2 and neither party objected to the

jury’s answer. The jury’s decision to answer both questions did not, as the majority suggests, create

an inconsistency requiring the magistrate judge to disregard the jury’s answer to interrogatory No.

2. 4 When answering interrogatory No. 2, the jury made a finding separate and distinct from its finding. . .”). Unlike the questions following the terminating question in W hite

, however, i nterrogatory No.

2 does not necessarily presume an affirmative response to interrogatory No. 1.

5 One reason why the majority refuses to give effect to the jury’s answer to i nterrogatory No.

2 is its belief that “there is no way to tell whether the jury actually deliberated the causation question

[regarding Carr’s inju ry], or whether its answer to the causation question was logically compelled

from its answer to the negligence question.” Again, I believe the majority has overstepped its bounds.

Specifically, the majority fails to accord the proper respect to the interpretation of the jury’s answers

given by the trial judge. It is the trial judge, and not the appellate court, “who has observed the jury

during the trial [and] prepared the questions and explained them to the jury.” Richard v. Firestone

Tire & Rubber Co.

, 853 F.2d 1258, 1260 (5th Cir. 1988). As a result, it is the trial judge, and not

the appellate court, who is in the best position to evaluate whether the jury’s answers reflect

confusion and uncertainty or a clear resolution of disputed fact issues.

17 on i nterrogatory No. 1. No matter whether Wal-Mart’s negligence caused the accident, its negligence

did not cause any exacerbation to Carr’s pre-existing knee injury—so said the jury. 5

In sum, I believe the magistrate judge acted within his sound discretion when he gave effect

to the jury’s response to i nterrogatory No. 2, even after he set aside the jury’s answer to i nterrogatory

No.1. Accordingly, I would affirm the magistrate judge’s denial of Carr’s motion for a new trial.