* 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opinion should not be published and is not precedent except under the limited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 30, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30066

Summary Calendar

DORIS WHITE BOLDEN, ET Al.,

Plaintiffs,

versus

NATIONAL RAILROAD PASSENGER CORPORATION, ETC; ET AL.,

Defendants.

*****************************************************************

MARK RAYMOND LAPAPA,

Plaintiff-Appellant,

versus

NATIONAL RAILROAD PASSENGER CORPORATION, doing business as

Amtrak; CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD COMPANY,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:04-CV-1125

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Lapapa argues that the district court erroneously denied his

motion to alter or amend judgment, alternatively for a new trial,
No. 06-30066

-2-

after the jury awarded him $5,577.47. The district court did not

abuse its discretion in denying the motion to alter or amend

judgment after concluding that sufficient evidence supported the

jury’s finding that Lapapa’s injuries pre-existed and were not

exacerbated by the train derailment and may have been caused by

an intervening event. See Weber v. Roadway Exp., Inc., 199 F.3d

270, 275-76 (5th Cir. 2000). For the same reason, the district

court did not abuse its discretion in denying a new trial. See

Young v. City of New Orleans, 751 F.2d 794, 798 (5th Cir. 1985);

Munn v. Algee, 924 F.2d 569, 578 (5th Cir. 1991) (holding that we

will not grant a new trial on damages unless factfinder’s award

is “so inadequate as to shock the judicial conscious and raise an

irresistible inference that passion, prejudice, corruption, or

other improper cause invaded the trial”).

Lapapa contends, independently of and in connection with the

above motions, that the district court erred in admitting

defendants’ evidence of an alleged intervening cause because an

argument of intervening cause is an affirmative defense, which

defendants failed to list in the pre-trial order. The court did

not err because Lapapa did not object during trial and was not

unfairly surprised by the evidence used to establish the defense

— documents listed in the pre-trial exhibit list. See Haught v.

Maceluch, 681 F.2d 291, 305-06 (5th Cir. 1982) (finding implied

consent to try issues beyond the pleadings where party does not

object); Giles v. Gen. Elec. Co., 254 F.3d 474, 491-92 (5th Cir.
No. 06-30066

-3-

2001) (excusing technical non-compliance with Rule 8(c), which

requires party to list affirmative defenses in pre-trial order,

where there is no unfair surprise). 

To the extent Lapapa argues that insufficient evidence

supported the defense, such that no reasonable jury could have

found an intervening cause, we disagree. Lapapa contends that

defendants’ only evidence of the mugging were medical records

stating that he had mentioned a “mugging;” he argues that if he

made this statement, he made it while delusional, and he notes

that he denied on the stand that a mugging had occurred,

explaining that he had cut his hand during an episode in his

apartment. On appeal, he presents new evidence that the incident

relied on by defendants was actually a psychotic episode in his

apartment, after which a New Orleans SWAT team forcibly removed

him from his apartment. We cannot consider this new evidence. 

See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th

Cir. 1999). Given Lapapa’s admitted mental problems and the

evidence actually presented, which included a colloquy hinting

that the “mugging” might have actually been the forcible

extraction by the police, the jury was entitled to weigh the

credibility of the witnesses to find that a mugging, or some

later event that preceded the hospital visit where Lapapa

mentioned a “mugging,” was the intervening cause. See Young, 751

F.2d at 799. 
No. 06-30066

-4-

Accordingly, the jury’s award of damages is AFFIRMED and

Lapapa’s motion to strike portions of appellee’s brief regarding

“mugging” is DENIED.

Lapapa states that, due to Hurricane Katrina, the district

court has not acted on his motion for costs, filed August 2,

2005. This issue is not appropriately on appeal and Lapapa can

pursue that motion in the district court.