IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50226

SCOT CARLEY, On Behalf of Himself and All Others Similarly Situated, 

 Plaintiff - Appellee

v.

CREST PUMPING TECHNOLOGIES, L.L.C., 

 Defendant – Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before KING, HAYNES and HIGGINSON, Circuit Judges.

HAYNES, Circuit Judge:

Crest Pumping Technologies, LLC (“Crest”) appeals the magistrate 

judge’s1 denial of its motions for judgment as a matter of law and a new trial. 

A jury returned a verdict in favor of Scot Carley and Brandon Brown 

(collectively, “Plaintiffs”), former employees of Crest, finding that Crest 

wrongfully denied them overtime pay in violation of the Fair Labor Standards 

Act (“FLSA”). On appeal, Crest argues that the trial court erred in not granting 

it judgment as a matter of law (“JMOL”) or a new trial, because it was exempt 

from FLSA’s overtime payment requirements. Crest also argues that it should 

 

1 Tried by consent before a United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(c) and Federal Rule of Civil Procedure 73.

United States Court of Appeals

Fifth Circuit

FILED

May 16, 2018

Lyle W. Cayce

Clerk

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No. 17-50226

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have received a new trial because, inter alia, the court improperly placed the 

burden on Crest to prove that the SAFETEA-LU Technical Corrections Act 

(“Corrections Act”) did not except Plaintiffs from the Motor Carrier Act 

(“MCA”) exemption.

Because the magistrate judge incorrectly placed the burden of proof on 

Crest as to the Corrections Act’s applicability, and Plaintiffs presented no 

evidence to meet their burden of proving the weight of the vehicles they 

operated, we VACATE and RENDER JUDGMENT for Crest.2

I. Background

Crest is a corporation providing downhole cementing and pump down 

services for complex unconventional and conventional oil wells. Crest 

employed Plaintiffs as cementers.3 Carley was employed by Crest from 

February 18, 2014, to June 10, 2014, while Brown was employed by Crest from 

February 18, 2014, to October 19, 2014. After leaving their positions, Plaintiffs 

filed this claim under FLSA, 29 U.S.C. §§ 201–19, specifically alleging a failure 

to adequately compensate for overtime work as required under 29 U.S.C. 

§ 207(a). Crest answered, alleging, inter alia, that Plaintiffs were exempt from 

the overtime pay requirements of FLSA under the MCA exemption. The 

parties have stipulated to the requisite facts establishing the MCA exemption4; 

 

2 Because we reverse and render on the burden of proof issue, we do not reach Crest’s 

arguments regarding (1) the highly compensated employee exemption, (2) the trial court’s 

charge for determining whether the Corrections Act applied, and (3) the trial court’s 

overruling of Crest’s objection to testimony regarding Crest’s compliance with Department of 

Transportation (“DOT”) regulations.

3 The parties dispute the exact nature of Plaintiffs’ titles. For simplicity’s sake, we 

refer to Plaintiffs as “cementers.” We make no determination as to Plaintiffs’ particular 

titles; the title of an employee is not relevant to this case because duties, rather than title, 

determine an employee’s classification under FLSA. See 29 C.F.R. § 541.2.

4 The MCA exemption applies to employees whose maximum hours are set by the 

Secretary of Transportation, being employees who are (1) employed by a motor carrier and 

(2) “engage in activities of a character directly affecting the safety of operation of motor 

vehicles in the transportation on the public highways of passengers or property in interstate 

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therefore, the issue is whether Plaintiffs were otherwise not subject to the 

exemption, as explained below.

On September 12–14, 2016, a jury trial was held to determine Crest’s 

liability. Plaintiffs called defense witness David Crombie, founder and 

president of Crest. He testified that cementers used only Ford F-350 vehicles

for their jobs, as those vehicles were required to carry the weight necessary for 

work. Crombie testified that he located the vehicle assigned to Carley and that 

it was an F-350 with a gross vehicle weight rating (“GVWR”)5 of 11,500 pounds. 

He made the determination based upon (1) the doorplate and (2) calling the 

manufacturer and providing the vehicle’s VIN number. He testified that Crest 

had sold the vehicle assigned to Brown, but that it was an F-350 identical to 

Carley’s. Crombie stated that he had provided the VIN number to the 

manufacturer to determine that its GVWR was also 11,500 pounds. No 

competent contrary evidence as to GVWR was presented.

Plaintiffs questioned Crombie about an Internet Registration Renewal 

that Crest had submitted to the Texas Department of Motor Vehicles for an F350, in which Crest represented that Plaintiffs’ vehicles’ “empty weight” was 

7600 pounds and their “gross weight” was 9600 pounds. Crest’s counsel asked 

Crombie to clarify the meaning of “gross weight” as compared to GVWR, and 

 

or foreign commerce.” 49 U.S.C. § 31502(b); 29 C.F.R. § 782.2(a). The Supreme Court has 

clarified that the exemption applies “to those employees and those only whose work involves 

engagement in activities consisting wholly or in part of a class of work which is defined: (i) As 

that of a driver, driver’s helper, loader, or mechanic, and (ii) as directly affecting the safety 

of operation of motor vehicles on the public highways in transportation in interstate or foreign 

commerce.” 29 C.F.R. § 782.2(b)(2) (citing Morris v. McComb, 332 U.S. 422 (1948), Pyramid 

Motor Freight Corp. v. Ispass, 330 U.S. 695 (1947), and Levinson v. Spector Motor Serv., 330 

U.S. 649 (1947)). Here, the parties stipulated that (i) “in their jobs at Crest, Brown and 

Carl[e]y drove motor vehicles and . . . loaded and secured tools and equipment on Crest’s 

motor vehicles,” and (ii) “Brown’s and Carl[e]y’s duties directly affected the safety of vehicles 

operated in the interstate commerce.”

5 GVWR is “the value specified by the manufacturer as the loaded weight of a single 

motor vehicle.” See 49 C.F.R. § 390.5T (effective June 15, 2018).

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Crombie explained that the two measurements are different. Thus, the 

evidence of the vehicles’ “gross weight” was not evidence of their GVWR.6

At the close of Plaintiffs’ evidence, Crest moved for JMOL under Federal 

Rule of Civil Procedure 50(a). Crest argued, inter alia, that the Corrections 

Act did not except Plaintiffs from the MCA exemption because the Corrections 

Act only applies if the GVWR of the vehicles operated by Plaintiffs was 10,000 

pounds or less. Because Plaintiffs had not refuted Crest’s evidence that 

Plaintiffs’ vehicles had a GVWR of 11,500 pounds, no reasonable juror could 

conclude that Plaintiffs were not subject to the MCA exemption.7 The court 

denied the motion. At the close of the evidence, Crest reiterated its JMOL 

motion, which the court again denied.

At the charge conference, the parties disputed the allocation of the 

burden of proof with respect to the Corrections Act. Crest argued that the jury 

charge should place the burden on Plaintiffs, as employees, to prove that the 

Corrections Act excepts them from the MCA exemption. However, the court 

left the charge as written, requiring Crest to prove that the Corrections Act did 

not apply to Plaintiffs. 

The jury returned a verdict in favor of Plaintiffs, finding that Crest did 

not prove that Plaintiffs were exempt from overtime compensation under the 

MCA exemption. The magistrate judge subsequently entered final judgment 

for Plaintiffs. Crest timely moved for JMOL under Rule 50(b) and argued, in 

the alternative, for a new trial under Rule 59(a). Crest’s motion for a new trial 

 

6 Plaintiffs also asked questions about compliance with DOT regulations regarding 

weight. We conclude that this line of questioning does not provide evidence of these 

particular trucks’ GVWR.

7 Crest also argued that Plaintiffs could be exempt under either the highly

compensated employee exemption or the executive exemption to FLSA. Because we do not 

reach the former here and the latter was not raised on appeal, the facts surrounding those 

arguments are not discussed further.

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stated, inter alia, that the jury’s conclusion regarding the MCA exemption was 

against the great weight of the evidence and that the burden of proof should 

not have been placed on it with respect to the Corrections Act. The court denied 

both motions.8 Crest timely appealed both denials.

II. Standard of Review

“We review de novo the district court’s denial of a motion for judgment 

as a matter of law, applying the same standard as the district court.” Heck v. 

Triche, 775 F.3d 265, 272 (5th Cir. 2014) (quoting Foradori v. Harris, 523 F.3d 

477, 485 (5th Cir. 2008)). “A motion for judgment as a matter of law in a case 

tried by a jury, however, ‘is a challenge to the legal sufficiency of the evidence 

supporting the jury’s verdict.’” Id. at 272–73 (quoting Hiltgen v. Sumrall, 47 

F.3d 695, 699 (5th Cir. 1995)). Therefore, the standard of review is “especially 

deferential,” and “we draw all reasonable inferences and resolve all credibility 

determinations in the light most favorable to the nonmoving party.” Id. at 273

(quoting Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 

2001), and Foradori, 523 F.3d at 485). We review a trial court’s decision to 

deny a new trial for abuse of discretion. Pryor v. Trane Co., 138 F.3d 1024, 

1026 (5th Cir. 1998) (per curiam). 

III. Discussion

Section 207 of FLSA requires an employer to pay overtime compensation 

to employees working more than forty hours a week, subject to certain 

statutory exemptions. 29 U.S.C. § 207(a)(1); 29 U.S.C. § 213(a)–(b). Crest’s 

motions here relate to exemptions to FLSA’s overtime requirement in § 207. 

The Supreme Court recently clarified that courts are to give FLSA exemptions 

“a fair reading,” as opposed to the narrow interpretation previously espoused 

 

8 The parties dispute the exact nature of the magistrate judge’s disposition of these 

two motions. Because any consequences of that dispute relate to the highly compensated 

employee exemption, which we do not reach today, we need not reach that issue.

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by this and other circuits. Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 

1142 (2018). 

The MCA exemption to FLSA overtime requirements appears at 

29 U.S.C. § 213(b)(1), which exempts employees subject to Secretary of 

Transportation standards from overtime compensation. The Supreme Court 

has reasoned that the purpose of the MCA exemption was primarily to ensure 

that operators of vehicles affecting highway safety were regulated by an entity 

with a greater understanding of the particular safety concerns. See, e.g., 

Morris v. McComb, 332 U.S. 422, 436 (1947).

After June 6, 2008, the Corrections Act went into effect, designating a 

class of employees to which the MCA exemption does not apply. That class 

includes “covered employees,” who are those employees:

(1) who [are] employed by a motor carrier or motor 

private carrier . . . ;

(2) whose work, in whole or in part, is defined—

(A) as that of a driver, driver’s helper, loader, or 

mechanic; and

(B) as affecting the safety of operation of motor 

vehicles weighing 10,000 pounds or less in 

transportation on public highways in 

interstate or foreign commerce, . . . ; and

(3) who perform[] duties on motor vehicles weighing 

10,000 pounds or less.

SAFETEA-LU Technical Corrections Act of 2008, Pub. L. No. 110-244, 

§ 306(a), (c), 122 Stat. 1572, 1621 (June 6, 2008)9; see also Allen v. Coil Tubing 

Servs., L.L.C., 755 F.3d 279, 291 n.6 (5th Cir. 2014). Relevant to this appeal, 

the Corrections Act does not expressly answer two questions: (1) who bears the 

burden of proving the weight of the motor vehicles, and (2) whether “weight” 

 

9 The relevant portion of the Corrections Act was codified in the notes section of 

29 U.S.C. § 207 (Applicability of Fair Labor Standards Act requirements and limitation on 

liability).

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under the Corrections Act refers to GVWR or another measure of weight.

A. Burden of Proof

The text of the Corrections Act does not clearly allocate the burden of 

proving whether the vehicles weigh 10,000 pounds or less, and we have no

precedent deciding the issue. The circuit and district court cases addressing 

the Corrections Act did not need to resolve any question regarding the burden 

of proof. See, e.g., Schilling v. Schmidt Baking Co., Inc., 876 F.3d 596 (4th Cir. 

2017); Aikins v. Warrior Energy Servs. Corp., No. 6:13-CV-54, 2015 WL 

1221255, at *4 n.3 (S.D. Tex. Mar. 17, 2015)). 

There is no dispute that Plaintiffs bore the initial burden of proving that 

they were covered under FLSA’s overtime pay requirement, see Johnson v. 

Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014), and Crest 

bore the burden of proving that the MCA exemption applied in this case, see 

Mitchell v. Ky. Fin. Co., 359 U.S. 290, 291 (1959). The dispute here is who 

bears the burden of proving the weight of vehicles under the Corrections Act. 

Plaintiffs argue that the Corrections Act, though codified separately 

from the MCA exemption, is analogous to exclusionary language contained 

within exemptions under 29 U.S.C. § 213, which the employer bears the burden 

of proving. See, e.g., 29 U.S.C. § 213(a)(6) (reading, in part, that wage 

requirements do not apply to “any employee employed in agriculture . . . if such 

employee is employed by an employer who did not, during any calendar quarter 

during the preceding calendar year, use more than five hundred man-days of 

agricultural labor” (emphasis added)). But Plaintiffs’ examples all fall within 

the group of “Exemptions” listed under 29 U.S.C. § 213. On the other hand, 

the Corrections Act was codified under 29 U.S.C. § 207, which sets out FLSA 

standards that Plaintiffs bear the burden of proving lack of compliance by an 

employer. In other words, the Corrections Act defines a “covered employee” in

a statute subsection under which the plaintiff has the burden of proof for FLSA 

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coverage. See Johnson, 758 F.3d at 630. Although an employer more logically 

should bear the burden of proving an exemption from FLSA, here, the disputed 

provision is not codified as an exemption but, rather, under the provision 

defining when FLSA mandates overtime pay. This statutory structure 

indicates that the Corrections Act is not meant to be read in the same way as 

exclusionary language within a FLSA exemption. 

Our decision in Samson v. Apollo Resources, Inc., 242 F.3d 629 (5th Cir. 

2001) is instructive. In Samson, we determined whether the employee or 

employer bore the burden of proving compliance with an approved method of 

paying overtime under 29 U.S.C. § 207. 242 F.3d at 636. We held that, because 

the payment method “is one method of complying with the overtime payment 

requirements of 29 U.S.C. § 207(a)(1) [and] [i]t is not an exemption to it . . . the 

employee bears the burden of proving that the employer failed to properly 

administer the [overtime payment] method.” Id. Samson considered whether 

the method of paying overtime was a way to meet 29 U.S.C. § 207(a) or a way 

to exempt oneself from § 207(a). See id. Here, the Corrections Act is similarly 

not an exemption from § 207(a); rather, it codifies conditions under which 

§ 207(a) requires overtime pay notwithstanding the MCA exemption. 

Sampson’s logic thus indicates that the burden of proof is more appropriately 

placed on Plaintiffs here, as compliance with the Corrections Act is of a piece 

with compliance with § 207(a), rather than a way to exempt oneself from 

§ 207(a) as per an exemption enumerated under 29 U.S.C. § 113.

We hold that the burden of proof should have been placed on Plaintiffs. 

Therefore, the trial court erred in allocating the burden of proving the 

Corrections Act to Crest.

B. JMOL

Because the burden of proving the weight of the vehicles was incorrectly 

allocated, we must determine whether this error matters to this case. For 

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starters, is there any competent evidence to satisfy Plaintiffs’ burden? If they 

failed to present any evidence supporting their burden, JMOL should have 

been granted. See Nobach v. Woodland Vill. Nursing Ctr., Inc., 799 F.3d 374, 

379 (5th Cir. 2015).

Crest argues that Plaintiffs did not meet their burden, because they 

presented no evidence that the vehicles operated by them had a GVWR of 

10,000 pounds or less. Plaintiffs, for their part, do not point to competent 

evidence of a lower GVWR but do argue that GVWR is not the proper measure

of weight, arguing that actual, unloaded weight should have been used. Had 

the magistrate judge applied that standard, Plaintiffs argue, they presented 

uncontroverted evidence of the actual, unloaded weight.10 Therefore, even if 

the burden of proof was incorrectly allocated, the error was harmless.

We first turn to the proper measure of weight. The Corrections Act does 

not expressly define “weight.” See Corrections Act § 306(c), 122 Stat. at 1621. 

Statutory language “should be taken as carrying its ordinary meaning unless 

the statute indicates the contrary.” Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 

334 (1958). Some district courts have thus analyzed the term “weight” as the 

“put on the scale” weight as the truck leaves the factory. See, e.g., Garcia v. W. 

Waste Servs., Inc., 969 F. Supp. 2d 1252, 1258–59 (D. Idaho 2013); Glanville v. 

Dupar, Inc., Civ. A. No. H-08-2537, 2009 WL 3255292, at *8 (S.D. Tex. Sept. 

25, 2009). Other courts, including the only circuit court to address the 

question, have applied GVWR as the measure of weight under the Corrections 

 

10 We note that, before trial, the magistrate judge determined that GVWR was the 

appropriate measure of weight of the vehicles. Therefore, Crest did not have an incentive to 

counter any of Plaintiffs’ evidence with respect to actual vehicle weight. Further, Crest 

contends that Plaintiffs did not put on evidence of actual, unloaded weight. Both of these 

issues only arise if actual, unloaded weight is the proper measure of weight in this case. As 

explained infra, we conclude that GVWR, and not the actual, unloaded weight, is the proper 

measure of weight.

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Act. See, e.g., McCall v. Disabled Am. Veterans, 723 F.3d 962, 966 (8th Cir. 

2013); Wilkinson v. High Plains Inc., --- F. Supp. 3d --- , 2018 WL 1123863, at 

*4 (D.N.D. Mar. 1, 2018); Roche v. S-3 Pump Serv., Inc., 154 F. Supp. 3d 441, 

447 (W.D. Tex. 2016).11 We must determine which approach is proper.

The trial court relied on the Department of Labor’s (“DOL”) Wage and 

Hour Division Field Assistance Bulletin12 (the “Bulletin”) published in 

response to the Corrections Act to determine that weight should be measured 

by GVWR. The Bulletin states that the Wage and Hour Division “will continue 

to use the gross vehicle weight rating” to determine the standard for 

“[w]eighing 10,000 pounds” under the Corrections Act. Bulletin at 2. The trial 

court determined that the Bulletin was entitled to deference “because it 

represents [the] DOL’s interpretation of statutory provisions that it is charged 

with enforcing” and “is reasonable because it leads to certainty in applying the 

[Corrections Act] and it is consistent with the Secretary of Transportation’s 

statutory and regulatory framework.” 

Applying Skidmore13 deference to the Bulletin, we agree with the Eighth 

Circuit on this analysis. See Humana Health Plan, Inc. v. Nguyen, 785 F.3d 

1023, 1027 n.5 (5th Cir. 2015) (Skidmore deference applies to such bulletins). 

Under Skidmore, the deference afforded to the Bulletin “depends on the 

thoroughness evident in [the DOL’s] consideration, the validity of its 

 

11 Some courts have also stated that they measured weight by the “gross vehicle 

weight.” See Childress v. Ozark Delivery of Mo. L.L.C., 95 F. Supp. 3d 1130, 1136 (W.D. Mo. 

2015); Miller v. Prof’l Transp., Inc., No. 3:09-CV-0111-RLY-WGH, 2010 WL 3398935, at *4 

(S.D. Ind. Aug. 25, 2010). “Gross vehicle weight” is distinct from GVWR, and neither party 

argued for its application here. See 49 U.S.C. § 31132(1) (defining a “commercial motor 

vehicle” as, in part, a vehicle with “a gross vehicle weight rating or gross vehicle weight of at 

least 10,001 pounds, whichever is greater” (emphasis added)).

12 UNITED STATES DEPARTMENT OF LABOR, FIELD ASSISTANCE BULLETIN NO. 2010-2 

(Nov. 4, 2010), https://www.dol.gov/whd/FieldBulletins/FAB2010_2.pdf.

13 Skidmore v. Swift & Co., 323 U.S. 134 (1944).

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reasoning, its consistency with earlier and later pronouncements, and all those 

factors which give it power to persuade, if lacking power to control.” See Baylor 

Cty. Hosp. Dist. v. Price, 850 F.3d 257, 261 (5th Cir. 2017) (quoting Skidmore v. 

Swift & Co., 323 U.S. 134, 140 (1944)). In light of these considerations, we 

analyze the history of the statutory scheme to determine whether deference to 

the Bulletin was warranted. We agree with the Eighth Circuit (and the district 

court opinion it analyzed) that the evolution of this statute supports the 

conclusion that GVWR is the proper measure of weight. See McCall, 723 F.3d 

at 965–66; McCall v. Disabled Am. Veterans Ernestine Schumann-Heink Mo. 

Chapter 2, No. 11-1298-CV-W-ODS, 2012 WL 3069845, at *2–3 (W.D. Mo. July 

27, 2012).14 

We conclude that the magistrate judge did not err in deferring to the 

Bulletin’s mandate to measure weight using GVWR. Thus, we must determine 

whether Plaintiffs put on evidence of the GVWR of their vehicles to meet their 

burden of proof.

Because this was a jury trial, we cannot reverse “unless the jury’s factual 

finding[] [that the GVWR of the vehicles operated by Plaintiffs was 10,000 

pounds or less is] not supported by substantial evidence.” See Baisden v. I’m 

 

14 Notably, soon after the MCA’s passage, the Supreme Court seemingly rejected the 

weight measurement argued for by Plaintiffs here: the actual, unloaded weight. See Maurer 

v. Hamilton, 309 U.S. 598 (1940). Although, in Maurer, the parties conceded that “size and 

weight of motor vehicles” included the size and weight of both the vehicle and any load, the 

Court reasoned that the weight of the unloaded vehicle could not be the proper measure of 

the weight of a motor vehicle. 309 U.S. at 610. Noting that the purpose of the MCA was to 

avoid “the major problems of safety and use of the highways,” it would be “useless” to use the 

“sizes and weights of motor vehicles, apart from their load” as the measure of weight affecting 

highway safety. Id. Further, the earliest regulations in response to the MCA appear to have 

endorsed that view. These regulations use the term “gross weight” instead of “weight” alone, 

indicating that the vehicle and its cargo were used to measure weight. See, e.g.,

Establishment of Chapter, 33 Fed. Reg. 19,700, 19,728 (Dec. 25, 1968); Safety Regulations, 2 

Fed. Reg. 113, 117 (Jan. 22, 1937).

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Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012) (quoting Am. Home 

Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 488 (5th Cir. 

2004)). We find no legally cognizable evidence provided by Plaintiffs to refute 

Crest’s evidence that the GVWR of the vehicles was more than 10,000 pounds. 

Plaintiffs presented no evidence of the GVWR of the vehicles they operated. 

The only evidence related to weight that Plaintiffs introduced was (1) Texas 

Certificates of Title showing that the “weight” of Plaintiffs’ F-350s was 7600 

pounds, and (2) Internet Registration Renewals completed by Crest showing 

Plaintiffs’ vehicles’ “empty weight” as 7600 pounds and “gross weight” as 9600 

pounds. Neither of those measurements constitutes GVWR. Because 

Plaintiffs put on no legally cognizable evidence of GVWR, Crest is entitled to a 

remedy based upon the improper application of the burden of proof as to the 

weight of the vehicles operated by Plaintiffs.

Ordinarily, if a trial court fails to grant a defendant’s motion for JMOL 

when warranted, we will vacate the judgment. See, e.g., City of San Antonio v. 

Hotels.com, L.P., 876 F.3d 717, 724 (5th Cir. 2017); Arsement v. Spinnaker 

Expl. Co., LLC, 400 F.3d 238, 244 (5th Cir. 2005) (“Because JMOL should have 

been granted [to] defendants, we need not reach their new trial claims.”). Here, 

because Plaintiffs did not present any legally sufficient evidence at trial with 

respect to the GVWR of the vehicles being 10,000 pounds or less, rendition is 

appropriate.15 Thus, we VACATE and RENDER judgment for Crest.

 

15 There could be situations where the trial court’s ruling regarding burden of proof so 

affects the trial that it would be unjust to simply render, such that a new trial is warranted. 

Here, because the magistrate judge did not allocate the burden of proof until after the parties 

presented their evidence, Plaintiffs had every opportunity and incentive to develop their 

evidence of GVWR. However, Plaintiffs have pointed to no competent evidence of a materially 

lower GVWR. This is not a close case. Thus, there is no inequity to Plaintiffs from not 

granting a new trial here. Cf. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940) 

(noting that whether “the trial was not fair” is a consideration in a trial court’s discretion to 

grant a new trial); O’Neil v. W. R. Grace & Co., 410 F.2d 908, 914 (5th Cir. 1969) (noting that 

an improper charge to the jury is grounds for a new trial and that a new trial should be 

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granted when the verdict results from “the jury receiving a distorted, incorrect, or an 

incomplete view of the operative facts, or some undesirable element obtruded itself into the 

proceedings creating a condition whereby the giving of a just verdict was rendered difficult 

or impossible”).

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