IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30809 (Summary Calendar)

JAMES SUBLETT, Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana (98-CV-64-M1)

August 10, 2000

Before HIGGINBOTHAM, EMILIO M. GARZA, and STEWART, Circuit Judges

PER CURIAM:*

This case involves a personal injury action against Wal Mart Stores, Inc. (“Wal

Mart”). Although the district court found as a matter of law that Wal Mart was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. negligent, nonetheless the jury found that Wal Mart’s negligence was not the legal

cause of the plaintiff’s injury. For the reasons assigned below, we affirm the jury’s

verdict.

FACTS

James Sublett (“Sublett”) was shopping on an aisle in a Wal Mart store. On the

other side of the aisle, Wal Mart employees were stacking boxes of golf balls and other

items. While the employees were stacking the boxes, the boxes accidently fell on the

other side of the aisle where Sublett was shopping. The parties disputed at trial whether

the boxes actually struck Sublett. Sublett claimed that the boxes struck him causing

physical injuries. He also claimed that his sudden movement in an attempt to avoid

being hit by the boxes caused physical injuries. Additionally, he claimed that he

sustained “mental injuries” from the incident.

Sublett filed a personal injury action against Wal Mart in Louisiana district court.

Wal Mart removed the case to federal district court under diversity jurisdiction. Both

parties presented evidence and at the conclusion of trial, Sublett moved for judgment

as a matter of law under Fed.R.Civ.Proc. 50 (“Rule 50") on the issues of negligence

and causation. The district court granted Sublett’s Rule 50 motion on negligence, but

denied his motion on causation and submitted the issue to the jury. The jury returned

with a verdict which found that Wal Mart’s negligence was not the legal cause of

2 Sublett’s injuries. Sublett now challenges the evidentiary sufficiency of the jury’s

verdict.

DISCUSSION

As stated above, Sublett moved for a Rule 50 Judgment as a Matter of Law

(“JMOL”) at the close of all evidence on the issues of negligence and causation. The

district court granted the JMOL on negligence, but denied the JMOL on causation.

Our review of the record does not show that Sublett renewed his Rule 50 motion after

the jury returned its verdict. Thus, we must address whether Sublett’s challenge to the

evidentiary sufficiency of the verdict was preserved for appellate review.

“To fully preserve error on appeal for failure to grant a motion for judgment, the

moving party must file both a pre-verdict Rule 50(a) motion at the close of all the

evidence and the renewed Rule 50(b) motion.” Satcher v. Honda Motors,

, 1315 (5th Cir. 1995). Failure to renew timely the request for Rule 50 relief after

the jury has returned its verdict “may result in a waiver of the right to challenge the

sufficiency of the evidence.” Scottish Heritable Trust, PLC v. Peat Marwick Main &

Co.,

(5th Cir. 1996).

However, we excuse technical noncompliance with Rule 50 where its basic

purposes have been met. MacArthur v. University of Texas Health Center,

,

896-98 (5th Cir. 1995). McCann v. Texas City Refining, Inc.,

(5th

3 Cir. 1993)(“In the past, the Court has been willing to excuse certain de minimus

departures from technical compliance with Rule 50(b)”). The two basic purposes of

Rule 50(b) are "to enable the trial court to re-examine the question of evidentiary

insufficiency as a matter of law if the jury returns a verdict contrary to the movant, and

to alert the opposing party to the insufficiency before the case is submitted to the jury."

See id (citing Bohrer v. Hanes Corp.,

(5th Cir. 1983)).

In the instant case, Sublett’s failure to renew his Rule 50(b) motion amounts to

more than just a technical noncompliance because the trial court was not given the

opportunity to address the sufficiency of the evidence after the jury rendered its verdict.

As such, Sublett’s failure to renew his motion constitutes a waiver. Therefore, we

review for plain error. Logal v. United States,

, 241 (5th Cir. 1999).

Under plain error review, the jury verdict shall stand unless Sublett shows that there

was not any evidence to support the verdict. See McMann,

.

A. Physical Injuries

Sublett claims that he sustained physical injuries to his back and neck that

resulted from the boxes of golf balls striking him on the head. He also claims that he

sustained physical injuries when he attempted to avoid the falling boxes. To support

his claims, he points the court to testimony from the physicians that examined him after

the incident. The physicians essentially testified that the neck and back injuries that

4 Sublett complained of were consistent with the incident that Sublett alleged occurred

at the Wal Mart store.

Sublett was the only witness who testified that the boxes struck him. Sublett

complained that the boxes produced a lump on his head when they struck him.

However, the doctor who examined Sublett at the emergency room indicated on his

report that he detected no visible signs of a physical injury. Additionally, Sublett’s son

testified that he and his father were involved in an automobile accident approximately

three weeks prior to the Wal Mart incident.

Thus, Sublett’s testimony was the only evidence that purported to establish that

the boxes struck him. Additionally, Sublett’s testimony on cross-examination reveals

inconsistencies regarding whether Sublett had told the treating emergency room

physician that he was taking medication for pre-existing injuries. Thus, when the trial

record is reviewed in toto, Sublett fails to show that there was no evidence to support

the jury’s finding that Wal Mart’s negligence was not the legal cause of his physical

injuries.

B. Fear and Mental Anguish

Sublett claims that the jury erred by not finding that the accident caused him fear

and mental anguish. Because this case comes to us under our diversity jurisdiction, we

5 are bound to apply Louisiana substantive tort law, but the sufficiency or insufficiency

of the evidence in relation to the verdict is “indisputably governed by a federal

standard.” See Jones v. Wal-Mart Stores, Inc.,

(5th Cir. 1989).

Under Louisiana law, a plaintiff may, in certain circumstances, recover for fear and

mental anguish sustained while a traumatic ordeal is in progress, regardless of whether

the plaintiff sustained physical injury. See Rivera v. United Gas Pipelines, Co.,

(La. App. 5 Cir. 1997); see also Harper v. Ill. Cent. Gulf R.R.,

(5th Cir. 1987). To recover for mental anguish and fear, the plaintiff must

show that “ he was involved in a hazardous situation–that is, within the zone of

danger–and that his fear was reasonable given the circumstances.”

.

Our review of the record does not reveal objective evidence to prove that Sublett

experienced fright or mental trauma that is compensable under Louisiana law. Sublett

did not produce objective evidence to show that as a result of being frightened, he

required medical attention or had any residual psychological problems. To meet his

burden, Sublett relied solely on his self-serving testimony, which the jury necessarily

chose not to credit. As such, Sublett fails to show that the jury’s verdict regarding his

claim for mental anguish and fear lacks evidentiary support. See Lennard v. State Farm

Mutual Automobile Ins. Co.,

(La. App. 2 Cir. 1995)(automobile

6 accident victims did not show compensable fear or mental anguish where the claims

were not supported by objective evidence).

CONCLUSION

We AFFIRM the district court’s denial of Sublett’s motion for a Judgment as a

Matter of Law and AFFIRM the jury’s verdict.

AFFIRMED.

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