UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-30372 Summary Calendar

DOLLIE GREGOIRE, Individually and on behalf of her minor children Marissa, Mahalia & Nahson Gregoire,

Plaintiff-Appellant,

VERSUS

PAUL GREGOIRE, Individually and on behalf of his minor children Marissa, Mahalia & Nahson Gregoire,

Plaintiff,

VERSUS

K-MART CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court For the Eastern District of Louisiana (CA-94-2032-D) October 30, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:1

Appellant, Dollie Gregoire, sued K-Mart Corporation alleging

that she was injured when she slipped and fell in K-Mart’s Houma,

1 Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. Louisiana store. A jury returned a verdict for K-Mart. Gregoire

appeals and we affirm.

Appellant seeks reversal of the jury verdict claiming first

that the district court erroneously overruled two objections

Appellant’s counsel made to statements made by Appellee’s counsel

in opening statement and in closing argument. In opening

statement, Appellee’s counsel said “I’ve tried lots of cases, but

this one out and out smacks of fraud.” In closing argument,

counsel stated, “K-Mart has proved itself to be a good corporate

neighbor in not only this community, but in the communities that

all of you come through . . .” The first statement was not

improper. Appellant’s counsel earlier stated to the jury that he

was trying his first case. Appellee’s counsel said he had tried

many and he set out the theme of K-Mart’s defense; that is, that

Appellant had staged the slip and fall. While the second statement

may have gone beyond the evidence in the case and, therefore,

technically been improper, we see no prejudice flowing from it or

the earlier statement. Coursey v. Broadhurst,

(5th Cir. 1989) (statement, if error, was harmless because

substantial rights were not prejudiced; Wilson v. Johns-Manville

Sales Corp.,

(5th Cir. 1987). Additionally,

the district court made clear to the jurors that what the lawyers

said in argument was not evidence to be considered in the case.

Appellant next complains that the district court should not

have allowed Appellee to call Appellant’s sister-in-law, Shirley

Bruce, as a witness because she was not listed on the pretrial

2 witness list. While this witness was indeed devastating to

Appellant’s case, she was called only as a rebuttal witness after

Appellant had testified to the alleged facts of the slip and fall

incident. Bruce testified that Appellant had staged the alleged

accident and had received no injuries. In presenting this witness,

Appellee followed the procedures of Rule 9 of the Uniform Rules of

the United States District Court for the Eastern District of

Louisiana. Appellee presented the information concerning the

witness to the district court in camera in advance of trial and

obtained a ruling that the evidence was indeed impeachment evidence

and, as a result, the identity of the witness need not be made

known in the usual pretrial filings. Appellant does not challenge

the validity of Rule 9 of the Eastern District so we do not address

that question.

AFFIRMED.

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