UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-21082

__________________

MELVA CAMPBELL, Individually and as the Natural Mother

and Next Friend of Marisol Campbell, Vanessa Campbell,

Thomas Campbell, Penelope Campbell, and Nakita Campbell,

minors; and as personal representative of the Estate of

Thomas Campbell; MARISOL CAMPBELL; VANESSA CAMPBELL;

THOMAS CAMPBELL; NAKITA CAMPBELL; PENELOPE CAMPBELL,

Plaintiffs-Appellants/Cross-Appellees,

versus

KEYSTONE AERIAL SURVEYS, INCORPORATED; ET AL.,

Defendants,

KEYSTONE AERIAL SURVEYS, INCORPORATED,

Defendant-Appellee/Cross-Appellant.

______________________________________________

Appeals from the United States District Court for the

Southern District of Texas

______________________________________________

April 13, 1998

Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

On May 28, 1994, a Cessna 320E airplane crashed into the wall

of a canyon near Battle Mountain, Nevada. Steve Fish, the pilot,

and Thomas Campbell were killed in the accident. The pilot was

employed by Keystone Aerial Surveys, Inc. (“Keystone”), and

Campbell was conducting aerial magnetic surveys for Keystone. This

appeal arises out of a wrongful death and survival action brought
1 The Campbells also brought suit against Keystone’s

subsidiaries, Airmag Surveys, Inc. and Precision Surveys, Inc. The

district court dismissed these defendants before trial, and the

Campbells do not appeal their dismissal.

2

by Melva Campbell, Thomas Campbell’s widow, and his five children,

against Keystone.1

I.

Thomas Campbell began working for Keystone in April 1994 as an

“air mag operator,” conducting aerial magnetic surveys to record

geological patterns in designated areas. This kind of surveying

requires low-level flight operations; at times, a pilot may fly a

plane no more than 200 to 500 feet above the ground. The area

that Fish and Campbell were surveying at the time of the accident

has been described as hilly or mountainous. One witness described

it as a “box canyon.” The plane, which had been flying at a low

altitude inside the canyon, crashed into a wall of the canyon. 

The Campbells’ negligence theory was that the plane crashed as

a result of a “controlled flight into terrain.” That is, they

contended that the pilot had control of the plane but crashed into

the terrain either because he did not see it or because he simply

did not leave enough time and space to avoid it. Keystone denied

that the accident resulted from pilot error and offered a number of

possible alternative explanations for the crash through the

testimony of their expert, Warren Wandell.

The district court granted Keystone’s motion to bifurcate the

trial into a liability and compensatory damages portion and a
2 Because appellants’ specific challenges to Wandell’s

testimony, including their claims that his testimony violated

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.

Ct. 2786 (1993), and that he impermissibly testified regarding

“probable cause,” may or may not arise in the new trial granted

herein, we do not address them here.

3

punitive damages portion. The liability and compensatory damages

portion was tried to a jury, which failed to find that any

negligence on Fish’s part proximately caused the accident. The

district court rendered judgment on the jury’s verdict, and this

appeal followed.

II.

The Campbells raise a variety of challenges to the testimony

of Keystone’s expert witness, Warren Wandell. First, they argue

that the district court abused its discretion in allowing Wandell

to testify because he was not timely designated. Second, they

argue that the district court erred in allowing Wandell to testify

because he had been employed by the National Transportation Safety

Board (“NTSB” or the “Board”) in the office that investigated this

plane crash, and federal regulations prohibit NTSB employees from

offering opinion testimony. Because we conclude that the district

court abused its discretion in allowing Wandell’s late-designated

testimony, we vacate the district court’s judgment as to liability

and damages and remand for a new trial on these issues.2 
4

A.
5

Appellants first argue that the district court should have

refused to allow Wandell’s testimony because Keystone designated

him as an expert witness outside the deadline set by the district

court’s scheduling order. Keystone first designated Wandell on

August 1, 1996, approximately eight months after the scheduling

order deadline, nearly three months after a pretrial order listing

trial witnesses was entered, and only seven-and-a-half weeks before

trial. Although the Campbells filed a motion to strike Wandell’s

testimony on August 13, 1996, the district court did not rule on

that motion until the first day of trial. The district court then

denied the motion to strike and allowed the Campbells to depose

Wandell during the afternoon of the second day of trial. 

We review the district court’s decision to allow testimony by

a late-designated expert for abuse of discretion. Bradley v.

United States, 866 F.2d 120, 124 (5th Cir. 1989). We have held

that the district courts have “wide latitude” in pretrial matters

and must be allowed to act with “intelligent flexibility” in this

arena. Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971). We

have instructed the district courts to consider four factors in

determining whether the testimony of a late-designated expert

witness should be permitted: (1) the importance of the witness’s

testimony; (2) the prejudice to the opposing party if the witness

is allowed to testify; (3) the possibility that a continuance would

cure potential prejudice; and (4) the explanation given for the

failure to identify the witness. Bradley, 866 F.2d at 124 (citing
3 Counsel for Keystone stated only that he “got in this case

late,” and in effect conceded that this was not an excuse for the

late designation.

6

Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir.

1981)).

In ruling on the Campbells’ motion to strike, the district

court failed to consider these factors. Instead, the district

court simultaneously considered a motion by Keystone to strike the

Campbells’ expert on pilot negligence, Richard L. Taylor, and

stated:

Here’s what I am going to do, I am going to decide today

whether Mr. Taylor testifies. If Mr. Taylor testifies,

he gets Wandell. If Mr. Taylor doesn’t testify, he

doesn’t get Wandell. That’s the way its going to be. 

In short, the district court failed to analyze independently

whether the plaintiff’s expert and the defendant’s expert should

have been allowed to testify. 

Applying the Bradley factors, we conclude that the district

court abused its discretion by allowing Wandell to testify. Not

only did Keystone fail to proffer any explanation for its failure

to designate Wandell in a timely fashion,3 but the potential

prejudice to the Campbells resulting from the district court’s

decision to allow Keystone to designate an expert in accident

reconstruction shortly before trial was plain and substantial.

Before Wandell was designated, Keystone had not identified a single

expert witness on liability issues. The Campbells prepared their

case on the assumption that theirs would be the only liability

expert, apparently confident that Taylor’s testimony would
4 Although the Campbells might have hastened to depose Wandell

when he was identified and his report was produced in August, we

are reluctant to require a party faced with a late-designated

expert to cure the potential prejudice caused by the late

designation before the district court has ruled on a motion to

exclude the testimony.

7

withstand cross-examination and be sufficient to support a jury

verdict in their favor in the absence of an opposing expert.

Keystone’s sudden designation of Wandell left the Campbells with an

inadequate opportunity to adapt the presentation of their case in

light of his testimony, by, for example, obtaining and developing

the testimony of their own accident reconstruction expert and

preparing to cross-examine Wandell. See Bradley, 866 F.2d at 125.4

Wandell’s testimony was unquestionably important. Indeed, it

was devastating to the Campbells’ case: based on photographs of the

accident scene and other investigation, Wandell cogently refuted

Taylor’s testimony that the accident resulted from a “controlled

flight into terrain” due to pilot negligence and offered alternate

explanations for the crash. Moreover, counsel for Keystone crossexamined Taylor extensively to expose that he, unlike Wandell, was

not an accident reconstructionist.

The district court failed to consider whether the potential

prejudice to the Campbells could be cured by a continuance. That

neither party in this case requested a continuance is not

surprising: the trial had already been continued twice, once over

the Campbells’ objection. As this court recognized in Bradley,

when an expert is designated outside the deadline set by the

district court in a case that has already been continued (in
8

Bradley, three times), the party opposing the late-designated

expert is put in the “untenable position” of agreeing to a

continuance or going forward with an improperly designated witness.

Id. at 127 n.11. A continuance may nevertheless be the appropriate

way in which to handle a late designation, especially where the

expert’s testimony is important. Indeed, we have repeatedly

emphasized that a continuance is the “preferred means of dealing

with a party’s attempt to designate a witness out of time . . . .”

Id. (citations omitted). In this case, however, the district court

failed to consider this option and instead required the plaintiffs

to depose Wandell the afternoon of the second day of trial.

For these reasons, we conclude that the district court abused

its discretion by allowing Wandell’s testimony without allowing the

Campbells an opportunity to obtain their own expert accident

reconstructionist and time to prepare to cross-examine Wandell.

Accordingly, we remand the case to the district court for a new

trial on the issues of liability and damages. “Before the new

trial is begun, of course, the district court should consider any

further appropriate discovery and should allow the parties to

prepare the presentation of their cases in light of [the expert’s]

expected testimony.” Bradley, 866 F.2d at 127. The court may also

consider whether it should impose sanctions on Keystone for the

breach of its duties under the Federal Rules of Civil Procedure. 

See id.
9

B.

The Campbells also argue that the district court should have

excluded all opinion testimony offered by Warren Wandell because he

was formerly employed by the NTSB in the office that investigated

the plane crash in question. Federal regulations strictly limit

the testimony that NTSB employees may offer in both criminal and

civil proceedings. See 49 C.F.R. §§ 835.1-835.9. The stated

purposes of the regulations are to

ensure that the time of Board employees is used only for

official purposes, to avoid embroiling the Board in

controversial issues that are not related to its duties,

to avoid spending public funds for non-Board purposes, to

preserve the impartiality of the Board, and to prohibit

the discovery of opinion testimony.

49 C.F.R. § 835.1.

Current NTSB employees are precluded from offering expert

opinion testimony, id. § 835.3(a), and “may testify only as to the

factual information they obtained during the course of an

investigation.” Id. § 835.3(b). Further, current NTSB employees

are allowed to refer to a copy of their factual investigation

report, but are prohibited from referring to the NTSB accident

report, id. § 835.4, which typically contains the NTSB’s opinions

and probable cause finding. Federal law flatly prohibits the NTSB

accident report from being admitted into evidence in any suit for

damages arising out of accidents investigated by the NTSB. See 49

U.S.C. § 1154(b) (formerly codified at 49 U.S.C. § 1441(e)).

Section 835.7 limits a former NTSB employee’s testimony “to the

matters delineated in § 835.3, and use of reports as prescribed by

§ 835.4.” Id. § 835.7. 
10

Only one other court appears to have addressed the permissible

scope of a former NTSB employee’s testimony. See Loftleidir

Icelandic Airlines, Inc. v. McDonnell Douglas Corp., 204 Cal. Rptr.

358 (Cal. App. 1984). In that case, a California court of appeals

reversed the decision of a lower court to exclude the opinion

testimony of a former NTSB employee who was not involved in the

investigation of the subject accident. Id. at 364. The court

concluded that the former NTSB employee should have been allowed to

offer expert opinion testimony because his opinions and conclusions

were not “formulated as a part of his official duties with the

NTSB,” id. at 362; he “had no investigative function whatsoever

over the . . . accident,” id. at 363; and “he was not personally

involved in the field investigation of the crash,” id. The

Loftleidir court concluded that allowing the testimony under these

circumstances would not interfere with what it conceived to be the

primary purpose of 49 C.F.R. §§ 853.3 and 853.4: to prevent the

NTSB’s opinion regarding the probable cause of the accident from

being used in litigation. 

We find the Loftleidir court’s reasoning persuasive and

further note that allowing testimony under the circumstances at

hand does not undermine any of the stated purposes of the

regulations. See 49 C.F.R. § 835.1. There is no indication that

Wandell had any connection whatsoever with the investigation of

this accident during his tenure at the NTSB. He developed his

expert opinions after his retirement from the NTSB from an

independent review of sources other than the NTSB accident report.
5 We note, however, that on retrial, Keystone would be well

advised to avoid making a show of Wandell’s NTSB lapel pin.

Although the Campbells raised no contemporaneous objection to this

display, we agree with the Campbells that such grandstanding has

the potential to mislead the jury.

6 Instead, the jury was instructed only that the pilot had a

duty to act with ordinary care, and “ordinary care” was defined as

“that degree of care that would be used by an airplane pilot under

the same or similar circumstances.”

11

That Wandell worked in the office that investigated the subject

crash, without more, does not change our conclusion. Cf.

Loftleidir, 204 Cal. Rptr. at 363 (noting that, although the expert

was not involved in the investigation, he had reviewed and

initialed the report and forwarded it to the Board). 

Moreover, although, as appellants note, the party presenting

the witness in the Loftleidir case had agreed not to mention the

fact that he was a former NTSB employee, that Wandell was permitted

to testify that he had worked for the NTSB does not persuade us

that his testimony should have been disallowed. In this case, no

mention was made of Wandell’s connection to the investigating

office, and he clearly testified that he was retired from the

NTSB.5 

III.

The district court precluded appellants from introducing

evidence through their expert witness on liability that the pilot

had violated specific Federal Aviation Regulations (FARs) and also

refused appellants’ request to incorporate the FARs into the jury

instructions.6 “Recognizing that district courts enjoy substantial
7 Appellants rely on In re Air Crash Disaster at John F.

Kennedy Int’l Airport, 635 F.2d at 75-76. In that case, the court

of appeals upheld an instruction that the jury could consider the

FARs to be some evidence of negligence. The instruction was

challenged on appeal based on the insufficiency of the evidence to

12

latitude in formulating jury instructions, this court reviews the

refusal to provide a requested instruction for abuse of

discretion.” United States v. Trevino-Martinez, 86 F.3d 65, 67

(5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1109 (1997)

(citing United States v. Smithson, 49 F.3d 138, 142 (5th Cir.

1995)).

The district court based its ruling in part on the fact that

appellants failed to plead negligence per se. Appellants do not

argue on appeal that the alleged violations of the regulations

constituted negligence per se or that they were entitled to a

negligence per se instruction, but only that the violations of the

regulations were some evidence of negligence. We agree. This

court has recognized that FARs have the “force and effect of law,”

United States v. Schultetus, 277 F.2d 322, 327 (5th Cir. 1960), and

other courts have held that their violation constitutes some

evidence of negligence. See, e.g., In re Air Crash Disaster at

John F. Kennedy Int’l Airport, 635 F.2d 67, 75-76 (2d Cir. 1980);

Tilley v. United States, 375 F.2d 678, 680 (4th Cir. 1967).

Appellants do not explain, however, why the fact that the FARs are

some evidence of negligence entitled them to a jury instruction

including the regulations. Nor do they cite any authority that

establishes that the refusal to give such an instruction

constitutes an abuse of discretion.7 Under these circumstances, we
show a violation of the regulations, the specific language of the

instruction submitted, and an argument that the FARs were not

“minimum standards of safety.” Id. at 75, 75-76. Nothing in that

case, however, indicates that the refusal to give such an

instruction constitutes error.

8 Assuming without deciding that the Campbells’ complaint was

insufficient to put Keystone on notice that they were pursuing a

negligence per se theory, their failure to cite the FARs in their

complaint does not preclude them from presenting these regulations

as some evidence consistent with their factual theory of

negligence.

13

conclude that the district court did not abuse its discretion in

refusing to instruct the jury regarding the FARs.

We see no reason, however, that appellants on retrial should

be precluded from presenting the FARs to the jury as evidence of

what a reasonable pilot would have done under the circumstances.

Even if a violation of a regulation does not constitute negligence

per se, failure to comply with a regulation may still provide

evidence that the defendant deviated from the applicable standard

of care. See, e.g., Dougherty v. Santa Fe Marine, Inc., 698 F.2d

232, 235 (5th Cir. 1983)(noting that the jury could consider the

regulations “as illustrative of a reasonable manufacturer’s

conduct”); Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 136 (5th

Cir. 1964)(citation omitted)(holding that regulations are a

“relevant fact” to be considered by the jury even if negligence per

se does not apply)(quoting Prosser, Torts § 34, at 162 (2d ed.

1955)).8
14

IV.
9 The district court ruled before trial that Thomas’s suicide

note would not be admitted, citing Federal Rule of Evidence 403.

On the first day of trial, the district court ruled that no mention

could be made of Thomas’s suicide whatsoever.

15

Appellants also appeal the district court’s refusal to admit

evidence of the suicide of Campbell’s son, Thomas Moises Campbell,

and evidence regarding the condition of Campbell’s body after the

crash.

A.

A little more than a year after his father’s death, Thomas

Moises Campbell (“Thomas”) committed suicide. In a suicide note,

Thomas referred to his father’s death and said that he was “going

to visit him.” Although the Campbells did not assert a cause of

action on behalf of Thomas’s estate, they did urge that evidence of

his suicide should be admitted to show the degree of mental anguish

that the other members of the family had suffered as a result of

Campbell’s death. Noting the potential for this evidence to

inflame the jury and confuse the issues, the district court ruled

that no mention could be made of the fact that Thomas had taken his

own life.9 

The risk that the jury would confuse the mental anguish

suffered by family members as a result of young Thomas’s suicide

with that resulting from Campbell’s death was substantial. See

Fed. R. Evid. 403. By contrast, the probative value of this

evidence to show the degree of mental anguish suffered by other

family members as a result of Campbell’s death was tenuous.
16

Moreover, the Campbells did not assert mental anguish on behalf of

Thomas’s estate. Under these circumstances, we conclude that the

district court acted within its discretion under Rule 403 in

refusing to admit evidence relating to Thomas’s suicide. 

B.

The district court also refused to admit evidence relating to

the condition of Campbell’s remains. Campbell was decapitated in

the accident, and his body was badly burned. The Campbells

specifically challenge the district court’s exclusion of

photographs of the crash site showing Campbell’s remains, a

coroner’s report, which contained photographs of Campbell’s

remains, and the videotaped deposition testimony of George Franklin

Hobbs, an undersheriff in the Lander County Sheriff’s Department,

who reviewed photographs showing the condition of the bodies found

at the crash site. The Campbells argue that this evidence was

relevant to show the extent of the mental anguish suffered by

members of Campbell’s family. Mrs. Campbell and Marisol Campbell,

Campbell’s oldest daughter, apparently saw photographs of the crash

site and Campbell’s remains. 

Keystone argues that because there was no dispute as to the

manner of Campbell’s death and the Campbells did not pursue a claim

for conscious pain and suffering on behalf of Campbell’s estate,

the excluded evidence had no probative value and was therefore

inadmissible under Federal Rule of Evidence 402. We disagree.

Evidence is relevant if it has “any tendency to make the existence
17

of any fact that is of consequence to the determination of the

action more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. We have little doubt that the

knowledge that their husband and father was decapitated and badly

burned in the accident added to the Campbells’ mental anguish. 

Keystone argues that, even if this evidence was relevant, the

district court properly refused to admit it under Rule 403 because

its probative value was substantially outweighed by its unduly

prejudicial nature and its tendency to inflame the jury. “Because

Rule 403 requires the exclusion of relevant evidence, it is an

extraordinary measure that should be used sparingly.” United

States v. Morris, 79 F.3d 409, 411 (5th Cir. 1996) (citing United

States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993); United States

v. McRae, 593 F.2d 700, 707 (5th Cir. 1979)). Nevertheless, “[a]

district court has broad discretion in assessing admissibility

under Rule 403,” and we review only for an abuse of that

discretion. Id. (citation omitted).

We turn first to the district court’s exclusion of photographs

of Campbell’s remains. The Advisory Committee’s Note to Rule 403

specifically notes the risk that proffered evidence will “induc[e]

a decision on a purely emotional basis” as a circumstance that may

require the exclusion of relevant evidence under Rule 403. Fed. R.

Evid. 403 advisory committee’s note. This circuit has explained

that “[p]hotographs of the victim bleeding profusely are classic

examples of such evidence.” Jackson v. Firestone Tire & Rubber

Co., 788 F.2d 1070, 1085 (5th Cir. 1986); see also Gomez v. Ahitow,
18

29 F.3d 1128, 1139 (7th Cir. 1994) (holding that the district court

erred in admitting “gruesome” photographs of victim’s body);

Ferrier v. Duckworth, 902 F.2d 545 (7th Cir. 1990) (holding that

the district court erred in admitting enlarged photographs of a

pool of the victim’s blood). The balance does not always weigh

against the admission of such evidence, however, as evidenced by

numerous decisions in this circuit upholding the district court’s

decision to admit such evidence. See In re Air Crash Disaster Near

New Orleans, 767 F.2d 1151 (5th Cir. 1985) (holding that the

district court did not abuse its discretion in admitting

photographs of the bodies of plane crash victims with third degree

burns where conscious pain and suffering was an issue); United

States v. Bowers, 660 F.2d 527, 529-30 (5th Cir. 1981) (holding

that the prejudice inherent in color photographs of a child’s

lacerated heart in a criminal prosecution for the child’s death did

not substantially outweigh the probative value of the evidence to

show cruel and excessive physical force); United States v. Kaiser,

545 F.2d 467, 476 (5th Cir. 1977) (holding that admission of

photographs of murder scene was not an abuse of discretion).

In this case, the photographs that the Campbells sought to

introduce created some risk that the jury’s decision would be based

on a visceral response to the images presented. Although the

evidence had some probative value, it was within the district

court’s discretion to exclude the evidence after weighing that

probative value against the risks of presenting these photographs

to the jury. Accordingly, we find that the district court did not
10 Although both parties brief this issue as though the district

court ruled that no evidence of the condition of Campbell’s body

could be introduced, the district court acknowledged at various

junctures that the fact of Campbell’s decapitation, as

distinguished from the photographs, could be presented to the jury.

At one point, the district court indicated that it would allow Mrs.

Campbell to testify that “she knows that [her husband] was

decapitated and that plays on her mind.” Appellants apparently

chose not to pursue this line of testimony, but are not precluded

from attempting to do so on remand.

19

abuse its discretion in excluding the photographic evidence of

Campbell’s remains.

To the extent that the district court’s ruling precluded any

testimony regarding the condition of Campbell’s remains, however,

that ruling was an abuse of discretion.10 As discussed above, the

facts that Campbell was decapitated and his body burned were

probative of the mental anguish suffered by members of his family.

Moreover, any prejudice from the testimony regarding the bare facts

of the condition of his body would not give rise to “undue”

prejudice under Rule 403. Likewise, testimony alone would not have

the same potential to inflame the jury that the photographic

depictions of Campbell’s remains might have.

V.

The district court held the Campbells’ counsel, Daniel J.

Petroski, Jr., in criminal contempt for violating a pretrial order

of the court granting Keystone’s motion in limine to preclude the

introduction of evidence of Keystone’s financial status during the

liability and compensatory damages portion of the trial. The court

sentenced Petroski under the criminal contempt statute, 18 U.S.C.
11 Section 401 gives the district court authority “to punish by

fine or imprisonment, at its discretion . . . contempt of its

authority . . . .” 18 U.S.C. § 401 (emphasis added). By contrast,

20

§ 401, to a twenty-four hours imprisonment, which he served after

the jury was dismissed. A divided panel of this court reversed the

district court’s judgment of criminal contempt against Petroski on

the ground that the evidence failed to establish beyond a

reasonable doubt that the order violated was sufficiently specific.

See United States v. Daniel J. Petroski, Jr., No. 96-20933, slip

op. at 1 (5th Cir. Nov. 19, 1997).

After trial, Keystone filed a motion for sanctions, seeking

compensation for the delay and expense that resulted from

Petroski’s persistence in disregarding various district court

orders. The motion emphasized that Petroski had repeatedly

disregarded the court’s order not to pursue a line of questioning

regarding the difference between Keystone and two related companies

and ignored numerous subsequent admonishments at the bench to

refrain from this line of questioning. The district court granted

Keystone’s motion and ordered Petroski and his law firm to pay

Keystone $15,470.20 for Keystone’s reasonable costs, expenses, and

attorney’s fees incurred as a result of Petroski’s violation of the

court’s order. 

On appeal, Petroski argues that the post-trial monetary award,

in addition to the imprisonment already imposed, violated 18 U.S.C.

§ 401, which allows the district court to impose either a fine or

imprisonment for criminal contempt of its authority, but not both.

18 U.S.C. § 401;11 Green v. United States, 356 U.S. 165, 78 S. Ct.
a court may punish civil contempt by both a fine and imprisonment.

See In re Dinnan, 625 F.2d 1146, 1150 (5th Cir. 1980) (citation

omitted). 

12 Appellants correctly note that we have required district

courts to make detailed findings when making an award under 28

U.S.C. § 1927. FDIC v. Conner, 20 F.3d 1376 (5th Cir. 1994);

Browning v. Kramer, 931 F.2d 340 (5th Cir. 1991). To the extent

that appellants argue that the district court’s order should be

vacated for lack of such findings, they abandoned this issue by

failing to raise it in their initial brief. Stephens v. C.I.T.

Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992)

(issues cannot be raised for the first time in reply briefs). 

13 Appellants do not argue that the sanctions posed a double

jeopardy problem, only that the sanctions violated 18 U.S.C. § 401.

For the Supreme Court’s most recent pronouncement on the

circumstances in which a monetary penalty constitutes a criminal

punishment for double jeopardy purposes, see Hudson v. United

States, ___ U.S. ___, 118 S. Ct. 488 (1997).

21

632, 642 (1958); In re Bradley, 318 U.S. 50, 63 S. Ct. 470, 470

(1943); United States v. Holmes, 822 F.2d 481, 486 (5th Cir. 1987);

United States v. Hilburn, 625 F.2d 1177, 1181 & n.4 (5th Cir.

1980). The district court, however, did not award Keystone

attorney’s fees and costs under 18 U.S.C. § 401. Rather, the award

was made in response to a motion for sanctions brought under 28

U.S.C. § 1927 and Federal Rule of Civil Procedure 16(f).12 That we

have characterized an award under 28 U.S.C. § 1927 as “penal,” FDIC

v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994); Browning v. Kramer,

931 F.2d 340, 344 (5th Cir. 1991), does not transform every award

under that section into a fine under 18 U.S.C. § 401.13

Accordingly, we affirm the district court’s order granting

Keystone’s motion for sanctions.

VI.
22

Keystone argued in the court below that Campbell was its

employee, and thus he was entitled to recover only under worker’s

compensation. Appellants maintained that Campbell was an

independent contractor. At the close of appellants’ evidence,

Keystone moved for judgment as a matter of law on this issue. The

district court denied the motion and submitted the issue to the

jury, which found that Campbell was an independent contractor.

Keystone cross-appeals the district court’s denial of its postverdict motion for judgment as a matter of law on this issue. 

Because Keystone failed to renew its motion for judgment as a

matter of law at the close of all evidence, we review for plain

error. See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.

1996). In reviewing for plain error, we determine “not whether

there was substantial evidence to support the jury verdict, but

whether there was any evidence to support the jury verdict.”

Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 957 (5th

Cir. 1993).

Under Texas law, whether a person is an employee or an

independent contractor is a question of fact, Halliburton v. Texas

Indem. Ins. Co., 213 S.W.2d 677 (Tex. 1948), unless there is no

dispute as to the controlling facts and only one reasonable

conclusion can be drawn from those facts, Industrial Indem.

Exchange v. Southard, 160 S.W.2d 905, 906 (Tex. 1942); Wackenhut

Corp. v. Perez, 865 S.W.2d 86 (Tex. App.—Corpus Christi 1993, writ

denied) (citing Southard). 
23

The central inquiry on this issue is whether Keystone had “the

right to control the progress, details, and methods of operations

of [the claimant’s] work.” Thompson v. Travelers Indem. Co., 789

S.W.2d 277, 278 (Tex. 1990)(citing Newspapers, Inc. v. Love, 380

S.W.2d 582, 590 (Tex. 1964)). A number of factors are relevant to

this determination, including “the method of payment, whether by

the time or by the job.” Pitchfork Land & Cattle Co. v. King, 346

S.W.2d 598, 603 (Tex. 1961); Southard, 160 S.W.2d at 906. 

The Campbells presented evidence that Keystone paid Campbell

a $10,000 lump sum for his first two months of work and that

Keystone recorded this payment in its subcontractor general file

rather than in its employment records. The manner in which

Campbell was paid was in contrast with Keystone’s practice of

paying all its other employees on an hourly basis. Contrary to

Keystone’s assertion, that this advance payment was made at

Campbell’s insistence does not necessarily militate against

concluding that the lump-sum payment supports the jury’s

independent contractor finding.

Further, Gil Mallinckrodt, the president of Keystone,

testified that he did not give Campbell instructions regarding the

day-to-day performance of his duties, other than determining when

survey flights would take place. Mallinckrodt also agreed that

when Campbell was not flying, there “were no controls on whatever

hours or whatever it was he was doing over there out in the field.”

Mallinckrodt’s testimony and the lump sum nature of Campbell’s
14 The Campbells also complain that the district court erred by

disregarding the separate corporate existences of Keystone and its

subsidiaries, Precision and Airmag, which were dismissed prior to

trial, and that this error influenced the jury’s failure to find

that the pilot was negligent. The Campbells sought to introduce

evidence that these were different corporate entities in connection

with their claim that Campbell was not Keystone’s employee. The

district court ruled that the Campbells were not entitled to

explore the differences between the companies because they had

pleaded only that Campbell was an independent contractor not that

he was an employee of the other companies. The district court

further orally instructed the jury that they could consider the

companies to be interchangeable, but that “legally they are not

interchangeable.” We note that, under Texas law, the separate

corporate existence of an entity is generally respected unless

evidence is adduced to justify its disregard. See Lucas v. Texas

Indus., Inc., 696 S.W.2d 372, 374 (Tex. 1984). Assuming without

deciding that the district court erroneously refused to permit the

Campbells to present evidence of the separate corporate existences

of Keystone, Airmag, and Precision, the only point on which the

district court’s ruling created a risk of confusion was the

employee/independent contractor issue, a point on which the

Campbells prevailed. We fail to see how the disregard of the

corporate distinctions among Keystone, Airmag, and Precision could

have influenced the jury’s failure to find that the pilot was

negligent.

15 Because the jury’s finding that Campbell was an independent

contractor was separate from and unaffected by Wandell’s testimony,

this issue need not be retried. See Maxey v. Freightliner Corp.,

727 F.2d 350 (5th Cir. 1984)(citations omitted); Wright et al.,

Federal Practice and Procedure, Civil § 2814, at 150 (2d ed.

1995)(“It therefore now may be regarded as settled that if an error

at trial requires a new trial on one issue, but this issue is

separate from the other issues in the case and the error did not

affect the determination of the other issues, the scope of a new

trial may be limited to the single issue.”).

24

compensation provide some evidence to support the jury’s verdict.

Under the plain error standard, no more is required.14 

VII.

Accordingly, we VACATE the judgment of the district court and

REMAND for a new trial on liability and damages.15 We AFFIRM the

district court’s order granting Keystone’s motion for sanctions.