UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30534 Summary Calendar

REGGIE ANNE WYATT, Plaintiff-Appellant,

versus

WAL-MART STORES, INCORPORATED, ET AL., Defendants, WAL-MART STORES, INCORPORATED, Defendant-Appellee.

Appeal from the United States District Court For the Western District of Louisiana (95-CV-422)

March 4, 1998 Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Reggie Anne Wyatt appeals the jury’s award of general damages, alleging

that the award is inadequate. For the reasons assigned, we affirm.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Wyatt filed suit against Wal-Mart Stores, Inc. for injuries allegedly sustained

when two Wal-Mart employees caused one or more plastic garbage cans to fall on

her. In January 1996 the case was tried to a jury which returned a verdict in favor

of Wyatt, awarding $8,072 for past and future medical expenses and $10,000 for

general damages. Wyatt moved for a new trial on the basis of juror misconduct,

also asserting that the general damages award was inadequate. The trial court

denied the motion and Wyatt timely appealed.

On appeal we remanded for an evidentiary hearing on the juror misconduct

issue. The parties consented to a trial by a magistrate judge and the case was

reassigned. After conducting an evidentiary hearing, the magistrate judge granted

Wyatt’s motion for a new trial on the basis of juror misconduct.

The case was again tried before a jury in April 1997. This jury returned a

verdict in favor of Wyatt, awarding $10,000 for past and future medical expenses

and $5,000 for general damages. Wyatt timely appealed, alleging that the general

damages award is against the weight of the evidence and should be increased.

Although Wal-Mart does not raise the question, at the outset we must

determine whether Wyatt’s claim that the general damages award is inadequate was

raised below and thus is properly before us.1 We have held that “there can be no

1 Harden v. United States,

(5th Cir. 1982). 2 appellate review of allegedly excessive or inadequate damages if the trial court was

not given the opportunity to exercise its discretion on a motion for new trial.”2

Wyatt did not move for judgment as a matter of law or a new trial on the verdict

currently appealed.3 Because the issue was not raised in the trial court, we have no

basis for reviewing its exercise of discretion, and therefore no basis for reviewing

the adequacy of the damages.4 Our review in this appeal is limited to whether plain

error has been committed which, if not noticed, would result in a manifest

miscarriage of justice.5 Giving due deference to the jury’s essential role in

weighing conflicting evidence and determining the relative credibility of the

witnesses, we must find and conclude that the award is supported by sufficient

evidence and that plain error does not exist.

The judgment appealed is AFFIRMED.

2 Carlton v. H.C. Price Co.,

(5th Cir. 1981). 3 Wyatt’s challenge to the adequacy of the initial damage award was rendered moot by the grant of a new trial. 4 Bueno v. City of Donna,

(5th Cir. 1983). 5 Polanco v. City of Austin, Tex.,

(5th Cir. 1996). 3