UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-31039 Summary Calendar ____________________

STEPHEN RAY ESTES, individual & as the natural parent & tutor, on behalf of Jolie Estes, on behalf of Stephen James Estes, on behalf of Jonathan Estes, on behalf of Justin Estes, on behalf of Miriam Estes; LANELL ESTES,

Plaintiffs-Appellants,

versus

USA TRUCK, INC.; ST. PAUL FIRE AND MARINE INSURANCE COMPANY,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (5:96-CV-1807) _________________________________________________________________

March 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

At issue is the district court’s denial of Plaintiffs’ motion

to set aside the jury verdict and for a new trial, filed

approximately a year after the jury verdict, and entry of judgment,

in favor of USA Truck. See FED. R. CIV. P. 60(b) (set aside verdict

in face of newly discovered evidence that by due diligence could

not have been discovered in time to move for new trial); FED. R.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. CIV. P. 59 (new trial). Such denials are reviewed for an abuse of

discretion. E.g., Halicki v. Louisiana Casino Cruises, Inc.,

(5th Cir. 1998) (decision to grant or deny relief

under Rule 60(b) reviewed for abuse of discretion), cert. denied,

(1999); Brunnemann v. Terra Int’l, Inc.,

(5th Cir. 1992) (“We review the denial of a motion for new

trial ... under an abuse of discretion standard.”); see also Lane

v. R.A. Sims, Jr., Inc., No. 00-60215,

(5th Cir.

6 Feb. 2001) (“Our review of the denial of a new trial motion is

more limited than when one is granted.” (internal quotation marks

omitted)); Diaz v. Methodist Hosp.,

(5th Cir.

1995) (“In deciding whether newly discovered evidence is sufficient

to warrant a new trial, the district court should consider whether

the evidence: (1) would probably have changed the outcome of the

trial; (2) could have been discovered earlier with due diligence;

and (3) is merely cumulative or impeaching.”)

Pursuant to a special interrogatory, the jury found Defendant

USA Truck was not guilty of negligent conduct that proximately

caused the injury when Stephen Estes was struck by an automobile

driven by Marjorie Tant. In fact, the jury found Estes 85% at

fault; Tant, 15%. The district court did not abuse its discretion

in concluding that the newly discovered testimony (changed from

witnesses’ trial testimony) would not change the outcome.

2 Essentially for the reasons stated in the district court’s opinion,

the denial of the motions is

AFFIRMED.

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