United States Court of Appeals

Fifth Circuit

FILED

July 23, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 06-61117

Summary Calendar

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TAMIKO JONES,

INDIVIDUALLY;

SHAKERIAL JONES,

MINOR, BY AND THROUGH HER MOTHER AND LEGAL GUARDIAN, TAMIKO JONES;

GLADYS MAE TERRY,

INDIVIDUALLY;

ANGELA TERRY; SEKUILLA TERRY; AND QUASHAN TERRY,

MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, GLADYS MAE TERRY;

ARRY DAVIS,

INDIVIDUALLY;

MARVIN DAVIS; TYRONE DAVIS; JARVIS DAVIS;

FREDRICK DAVIS; AND TYNISE HUDSON,

MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, ARRY DAVIS;

SHERRY WRAGG,

INDIVIDUALLY;

ARSENIO WRAGG; CHARLES WRAGG; KEUNDRA WRAGG; AND TIMOTHY WRAGG,

MINORS, BY AND THROUGH THEIR MOTHER AND LEGAL GUARDIAN, SHERRY WRAGG;

MARTHA LOTT,

INDIVIDUALLY;

SANTEARIS LOTT,

MINOR, BY AND THROUGH HIS MOTHER AND LEGAL GUARDIAN, MARTHA LOTT;

JOHN DOES 1-10,

Plaintiffs-Appellants,

VERSUS

NL INDUSTRIES, INC.,

FORMERLY KNOWN AS NATIONAL LEAD COMPANY, FORMERLY KNOWN AS DUTCH BOY PAINTS;

JERRY PURNELL; JOHN DOE 1-10,
2

Defendants-Appellees.
3

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

m 4:03-CV-229

______________________________

Before SMITH, WIENER, and OWEN, 

Circuit Judges. 

PER CURIAM:

*

A jury found in favor of defendants NL

Industries, Inc., and Jerry Purnell in this suit

brought on behalf of fourteen minor children

allegedly injured by lead-based paint. The

district court denied plaintiffs’ motion for new

trial. Finding no abuse of discretion, we affirm.

I.

In moving for a new trial, plaintiffs claimed

the jury instructions were merely abstract

statements oflaw and did not tie sufficiently to

the facts of the case and that the court should

have used their proposed instructions on

proximate cause. Those proposed instructions

explained plaintiffs’ burdento prove proximate

causation and stated the following: 

The defendants, NL Industries, has pled

affirmatively that the actual proximate

causes of the plaintiffs’ lead poisoning, if

any, was one or more of the following:

1. Lead based paint at 600 Dewey

Street not connected with NL Industries;

2. The soil at 600 Dewey Street;

3. Lead sources at multiple other residences;

4. Lead sources at a day care center;

5. Plaintiffs’ alleged extensive family

histories of mental retardation;

6. Learning disabilities; and,

7. Behavioral problems.

Just asthe plaintiffs have the burden of

proving their case by a preponderance of

the evidence, in order for you to find any of

these things to be a probable cause, NL Industries must prove by a preponderance of

the evidence that the thing which it argues

is a proximate cause is, in fact, a probable

cause of plaintiffs’ injuries, if any.

The court rejected the proffered instruction at

trial and in its denial of a motion for new trial

because, among other things, it did not state

the law correctly. In addition to appealing the

denial of a new trial, plaintiffs appeal the refusal to permit them to tell the jury that the

minor children had guardians who had been

appointed to protect theirinterests and oversee

any money awarded to them.

II.

We review challenged jury instructions for

* 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.
4

abuse of discretion. Fiber Sys. Int’l, Inc. v.

Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006).

“Where a party argues on appeal that the district court erred in refusing to give a proffered

jury instruction, that party must ‘show as a

threshold matter that the proposed instruction

correctly stated the law.’” Russell v. Plano

Bank & Trust, 130 F.3d 715, 719 (5th Cir.

1997) (quoting FDIC v. Mijalis, 15 F.3d

1314, 1318 (5th Cir. 1994)). Once that

threshold is met, “the challenger must demonstrate that the charge [given] creates substantial doubt as to whether the jury was properly

guided in its deliberations. Second, even if the

jury instructions were erroneous, we will not

reverse if we determine, based upon the entire

record, that the challenged instruction could

not have affected the outcome of the case.”

Green v. Adm’rs of the Tulane Educ. Fund,

284 F.3d 642, 659 (5th Cir. 2002) (internal

citations omitted).

A.

The proposed instruction does not properly

state the law: It places the burden on defendantsto prove alternative causesin fact, to use

those alternate causes to negate proximate

causation. The proposed instruction stated,

“NLIndustriesmust prove bya preponderance

of the evidence that the thing which it argues

is a proximate cause is, in fact, a probable

cause of plaintiffs’ injuries . . . .”

The MississippiSupremeCourt hassquarely rejected this proposition and, instead, places

the burden on the plaintiff to disprove other

possible causesin fact, not on the defendant to

establish them:

Where plaintiff in a negligence action has

only presented proof that the actual cause

was one of a number of possibilities, to enable an inference to be drawn that any particular cause is probable, the other causes

must be eliminated. Thus, when the evidence shows that it is just as likely that accident might have occurred from causes

other than defendant’s negligence, the inference that his negligence was the proximate cause may not be drawn.

Miss. Valley Gas Co. v. Estate of Walker, 725

So. 2d 139, 145-46 (Miss. 1998) (internal

quotation omitted).

We reached the same conclusion in the similar context of intervening causes under Texas

tort law. In E.I. du Pont de Nemours & Co. v.

McCain, 414 F.2d 369, 374-75 (5th Cir.

1969), the plaintiff posited that “the trial court

should have instructed the jurythat intervening

cause is an ‘affirmative defense’ to plaintiffs’

negligence claim.” Id. at 374. We rejected

that argument: “‘The theory of new and

independent cause is not an affirmative defense; it is but an element to be considered by

the jury in determining the existence or nonexistence of proximate cause.’” Id. (quoting

Dallas Ry. & Terminal Co. v. Bailey, 250

S.W.2d 379, 383 (Tex. 1952)). Because

plaintiffs’ proposed instruction incorrectly

placesthe burden on defendantsto prove alternate causes, it does not properly state the law,

and the district court did not abuse its discretion in declining to give it.

B.

Plaintiffs’ other complaintSSthat the juryinstructions were too abstract and not tied to the

facts at trialSSalso fails. Though we look to

state law to determine the content and substance of jury instructions, their form is a procedural question determined by federal law.

Reyes v. Wyeth Labs., 498 F.2d 1264, 1289
5

(5th Cir. 1974).1 Plaintiffs’ argument that

Mississippi law requires that instructions incorporate facts from the case is irrelevant, because we must apply federal standards. 

Plaintiffs direct us to United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir. 1979), and

United States v. Gunter, 876 F.2d 1113, 1119

(5th Cir. 1989), to argue that the federal rules

require specific instructionsthat relate the law

to the facts of the case. Neither of these cases,

however, announces a per se rule to that effect.2 An instruction does not always have to

include the facts a plaintiff requests.3 Because

there is no perse rule that instructions contain

details from the case, and because plaintiffs

point to no specific deficiencies in the instructions, there is no abuse of discretion.

III.

In three paragraphs at the end of their brief,

plaintiffs assert that the district court erred in

refusing to allow them to tell the jury that the

minor children had guardians to oversee any

award. Plaintiffs do not cite the standard to

review this evidentiary decision, any supporting authorities for their position, or any references to the record. Though they assert that

the “record isreplete with instances ofDefense

counsel attacking the character, the behavior,

and/or the parental qualities of the mothers of

the minor children,” plaintiffs cite no instances

in the record establishing that claim. 

Because the plaintiffs offer only a skeletal

recitation of an argument “without citing supporting authorities or references to the record,” this claim is “considered abandoned on

appeal. Notice pleading does not suffice for

appellate briefs.” United States v. Ballard,

779 F.2d 287, 295 (5th Cir. 1986) (internal

citations omitted).

AFFIRMED.

1

See also 9A CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 2555 (2d ed. 2007) (“Both with regard to the manner and method of instructing the

jury, federal courts follow their own rules, regardless of the forum state’s practice and legislation.”).

2 Lewis decided whether an entire proposed instruction should have been given, not whether abstract instructions should have instead included

facts of the case. Lewis, 592 F.2d at 1286 (“There

was a sufficient evidentiary foundation to present

the issue and to warrant an instruction concerning

authority and apparent authority to endorse. Certainly, the issue of good faith should have been

submitted.”). Similarly, Gunter involved “omitting

[a] requested jury instructions on a defense of good

faith.” Gunter, 876 F.2d at 1119.

3 United States v. Stone, 960 F.2d 426, 433

(5th Cir. 1992) (“Because the elements of agreement and intentSSas well as the legal defenses

based on lack of agreementSSwere substantially

covered in the charge given to the jury, a theory of

the defense that merely recounted the facts without

those elements was not required.”) (citing United

States v. Lance, 853 F.2d 1177, 1184-85 (5th Cir.

1988); United States v. Barham, 595 F.2d 231,

244-45 (5th Cir. 1979)).