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

_______________ 

### T AMIKO 

### J ONES 

### , I NDIVIDUALLY ; 

### S HAKERIAL 

### J ONES 

### , M INOR , BY AND T HROUGH H ER M OTHER AND LEGAL G UARDIAN , T AMIKO J ONES ;



### G LADYS 

### M AE 

### T ERRY 

### , I NDIVIDUALLY ; 

### ANGELA 

### T ERRY 

### ; S EKUILLA 

### T ERRY 

### ; AND 

### Q UASHAN 

### T ERRY 

### , M INORS , BY AND T HROUGH T HEIR M OTHER AND LEGAL G UARDIAN , G LADYS M AE T ERRY ; 

### A RRY 

### D AVIS 

### , I NDIVIDUALLY ; 

### M ARVIN 

### D AVIS 

### ; T YRONE 

### D AVIS 

### ; J ARVIS 

### D AVIS 

### ; FREDRICK 

### D AVIS 

### ; AND 

### T YNISE 

### H UDSON 

### , M INORS , BY AND T HROUGH T HEIR M OTHER AND LEGAL G UARDIAN , ARRY D AVIS ; 

### S HERRY 

### W RAGG 

### , I NDIVIDUALLY ; 

### A RSENIO 

### W RAGG 

### ; C HARLES 

### W RAGG 

### ; K EUNDRA 

### W RAGG 

### ; AND 

### T IMOTHY 

### W RAGG 

### , M INORS , BY AND T HROUGH T HEIR M OTHER AND LEGAL G UARDIAN , S HERRY 

### W RAGG 

### ; M ARTHA 

### L OTT 

### , I NDIVIDUALLY ; 

### S ANTEARIS 

### L OTT 

### , M INOR , BY AND T HROUGH H IS M OTHER AND LEGAL G UARDIAN , M ARTHA L OTT ; 

### J OHN 

### D OES 

### 1-10, Plaintiffs-Appellants 

### ,
VERSUS



### NL I NDUSTRIES 

### , I NC 

### ., F ORMERLY K

NOWN AS N ATIONAL LEAD C OMPANY , F ORMERLY K NOWN AS D UTCH B OY P AINTS ; 

### J ERRY 

### P URNELL 

### ; J OHN 

### D OE 

### 1-10
,2 

### Defendants-Appellees.3 _________________________ Appeal from the United States District Court fo r the Northern District of Mississippi



### m 4:03-CV-229

______________________________

Before S MITH , WIENER , and O WEN , Circuit Judges.

P ER C URIAM : *

A jury f ound in f avor of defendants NL Industries, Inc., and Jerry Purne ll in this suit brought on behalf of fo urteen mino r children allegedly injured by lead-based paint. The district court denied plaint iffs’ mo tion fo r new tri al. Finding no abuse of discretion, we affir m.
I. In mo ving fo r a new tri al, plaint iffs claimed the jury inst ructions were mer e ly abstract statem ents of law and did not tie sufficient ly to the facts of the case and that the court should have used their propo sed instructions on proximate cause. Those proposed instructions explained plaint iffs’ burden to prove proximat e causation and stated the following: The defendants, NL Industries, has pled affirmat ively th at the actual proximate
causes of the plaint iffs’ lead poi soning, if any, was one or more of the following:

1. Lead based paint at 600 Dewey Street not connected wi

th NL Industries; 2. The soil at 600 Dewey Street;

3. Lead sources at mult iple other residences; 4. Lead sources at a day care center;
5. Pl aint iffs’ alleged extensive family hist ories of mental retardation; 6. Learning disabilities; and, 7. Behavioral problems.

Just as the plaint iffs have the burden of proving their case by a preponderan ce of the evidence, in order fo r yo u 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 prof fered inst ruction at tri al and in it s denial of a mo tion for new trial b ecause, amo ng other things, it did not stat e the law correctl

y. In addition to appealing the denial of a new tr ial, plaintiffs appeal the refus a l to permit them to tell the jury th at the mino r children had guardian s who had been appoint ed to protect their int erests and oversee any mo ney awarded to them.

II. We review challenged jury instructions for * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except u nder the limited circumstances set forth in 5 TH C IR . 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 th at the district court erred in refusing to give a prof fered jur y inst ruction, that party must ‘show as a th reshold mat ter th at the proposed inst ruction correctl y stated the law.’” R ussell v. Plano Bank & Trust , 130 F.3d 715, 719 (5th Cir. 1997) (quoting FDIC v. Mijalis , 15 F.3d 1314, 13 1 8 (5th Cir. 1994)). Once that th reshold is met , “t he challenger must demonstrate th at the charge [given] creates substanti al doubt as to whether the jury was properly guided in it s deliberations. Second, even if the jury inst ructions were erroneous, we will not reverse if we determ

ine, based upon the entire record, th at the challenged inst ruction could not have affecte d th e outcom e of the case.” Green v. Adm’rs of the Tulan e Educ. Fund , 284 F

. 3d 642, 659 (5th Cir. 2002) (int ernal cit ations om

it ted).

A. The proposed inst ruction does not properl y state the law: It pl aces the burden on defendants to prove alt ernative causes in fact, to use t hose alt ernate causes to negate proximate causation. The proposed instruction stat ed, “NL Industries must prove by a preponderance of the evide n ce th at the thing which it argues is a proximate cause is, in fact, a probable cause of plaintiffs’ injuries . . . .”

The Mississippi Supreme Court has squarely rejected this proposition and, inst ead, places the burden o n t he pl aint iff t o di sprove other possible causes in fact, not on the defendant to establish them:

Where pl a int iff in a negligence action has only presented proof th at the actual cause was one of a number of possibilit ies, to enable an inference to be drawn th at any particular cause is probable, the other causes must be eliminat ed. Thus, when the evidence shows that it is just as likely th at accident might have occurred from causes other th an defendant’s negligence, the inference th at his negligence was the proximat e cause may not be drawn.

Miss. Valley Gas Co. v. Estate of Walker , 725 So. 2d 139, 14 5-46 (Mi ss. 1998) (internal quotation om

it ted).

We reached the same conclusion in the similar context of int ervening causes under Texas tort law. In E.I. du Pont de Nemours & Co. v. McCain , 414 F.2d 369, 374-75 (5th Ci r
. 1969), the plaint iff posited th at “t he tri al court should have inst ructed the jury th at int ervening
cause is an ‘affirmat iv e defense’ to plaintiffs’
ne g ligence claim.” I

d. at 374. We rejected th at argument: “‘The theory of new and independent cause i s not an affirmative defense; it is but an element to be considered by the jury in determ

ining the existence o r n onexistenc e of proximate cause.’” I d. (quoting Dallas Ry. & Terminal Co. v. Bailey , 250 S.W.2d 379, 383 (Tex. 1952)). Because plaint iffs’ proposed inst ruction inco rrectl y places the burden on defendants to prove alt ernate causes, it does not properl y state the law, and the district court did not abuse its discretion in declining to give it.

B. Pl aint iffs’ other com

pl a int 

### SS th at the jury instructions were too abstract and not tied to the fac ts at tri al 

### S

S also fails. Though we look to state law to d eterm

ine t he content and substance of jury inst ructions, their fo rm is a procedural question determ

ined by federal law

. Reyes v. Wyeth Labs. , 498 F.2d 1264, 12895

(5th Cir. 1974). 1 Pl aint iffs’ a rgum ent that Mississippi law requi

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

Pl aint iffs direct us to United States v. Lew

is , 592 F.2d 1282, 1286 (5th Cir. 1979), and United States v. Gunter , 876 F.2d 1113, 1119 (5th Cir. 1989), to argue th at the federal rules require specific inst ructions th at relate the law to the facts of the case. Neither of these cases, however, announces a per se rule to th at effect. 2 An inst ruction does not always have to include the facts a plaint iff requests. 3 Because there is no per se rule th at inst ructions contain details from the case, and becau s e plaint iffs point to no specific deficiencies in the inst ructions, there is no abuse of discretion.

III. In th ree paragraphs at the end of their brief, plaint iffs assert th at the district court erred in refusing to allow them to tell the jury that the mino r children had guardians to oversee any award. Pl aint iffs do not ci te the standard to review this evidentiary decision, any supporting authorities fo r their position, or any references to the record. Though they assert that the “record is replete wit h inst ances of Defense counsel attacking the character, the behavior, and/or the parental qualities of the mo thers of the mino r children,” plaint iffs cit e no inst ances in t he record establishing that claim.

Be cause the plaintiffs offer only a skeletal recitation of an argument “wit hout cit ing supporting aut horities or references to the record ,” this claim is “co nsidered abandoned on appeal. Notice pleading does not suffice for appellat e briefs.” U

nited States v. Ballard , 779 F.2d 287, 295 (5th Cir. 1986) (int ernal cit ations om

it ted).

AFFIRMED. 1 See als o 9 A C HARLES A LAN W RIGHT & ARTHUR R. M ILLER , F EDERA L P RA CTICE AN D P ROCEDURE § 2555 (2d ed. 2007) (“Both with re
gard to the ma nner and method of instructin g 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. L ewis , 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 o f good faith should have been submitted.”). Similarly, Gunter i nvolved “omitting [a] requested jury instructions on a defense of good faith.” Gunter , 876 F.2d at 1119.

3 United States v. Ston e , 960 F.2d 426, 433 (5th Cir . 1992) (“Because the elements of agreement and intent SS

as well as the legal defenses ba sed on lack of agreement SS were substantially covered in the charge given to the jury, a theory of the defense that mer ely 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)).