IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-41397
Summary Calendar
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THE PILLSBURY COMPANY,
Plaintiff-Appellant,
v.
MARLEN RESEARCH CORPORATION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:96-CV-199)
_________________________________________________________________
October 7, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Following a jury trial, the district court entered a
judgment against plaintiff-appellant The Pillsbury Company
absolving defendant-appellee Marlen Research Corporation of
liability following a machine breakdown and subsequent
contamination of The Pillsbury Company’s cookie dough. The
Pillsbury Company appeals the district court’s denial of its
motion for a new trial. 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this opinion should not be published and is not precedent except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.
I. FACTUAL & PROCEDURAL BACKGROUND
In early 1994, The Pillsbury Company (Pillsbury) bought a
food pump from Marlen Research Corporation (Marlen) for use in
producing slice and bake cookie dough in Pillsbury’s Denison,
Texas plant. Marlen trained Pillsbury employees on the proper
use and care of the machine. The Denison food pump included, as
standard equipment, a funnel made of Delrin plastic that
connected a large hopper filled with mixed dough to a pump
attached to tubing, which wrapped the dough for retail sale.
In April 1994, shortly after the food pump went into
operation, Pillsbury had a problem with chocolate chips bunching
up inside the funnel. Sporadically, this problem resulted in
some dough packages consisting entirely of chocolate chips, as
the pump released the bunched chocolate chips all at once into
the tubing. After Pillsbury reported this problem to Marlen,
Marlen recommended that Pillsbury replace the Delrin plastic
funnel with a funnel made of Lexan plastic. This recommendation
was based on Marlen’s experience with a similar bunching problem
at a General Mills plant in the 1980s, which was solved through
use of a Lexan funnel. Marlen ordered the Lexan funnel for the
Denison food pump.
In May 1994, a Pillsbury employee inadvertently put a wrench
into the Denison food pump along with a batch of dough, jamming
the pump, breaking some pump components, and scraping the pump
itself. Coincidentally, Marlen employees were present at the
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Denison plant at the time, and they disassembled the pump and
ordered replacement parts. After installing these parts, a
Marlen employee noted on a service report that the pump was now
operating “satisfactorily,” but also wrote that the pump had been
bent, which “must be corrected ASAP.” The next day, another
Marlen employee verified that the pump was operating
“satisfactorily,” and Pillsbury returned the pump to normal
operations.
In June 1994, Pillsbury received and installed the Lexan
plastic funnel, replacing the Delrin funnel. Pillsbury then
conducted a series of test runs with the new funnel and
determined that the Lexan funnel alleviated the chocolate chip
bunching problem. After these tests, the pump resumed normal
production. Pillsbury employees performed ordinary maintenance
on the pump on June 20 and 27, noting nothing unusual in its
condition.
On July 4, 1994, a Pillsbury maintenance worker noticed that
two pieces of Lexan were missing from the funnel. Normal
production continued until July 6, when a Marlen employee, at the
plant for an unrelated matter, learned of the missing Lexan and
disassembled the pump. This time, three pieces of Lexan were
missing. The missing pieces corresponded to the areas of the
funnel attached to the pump parts damaged in the wrench accident.
Following this discovery, Pillsbury halted production and sold as
scrap all dough possibly contaminated with the Lexan pieces.
Pillsbury filed suit against Marlen in the 59th Judicial
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District of Grayson County, Texas, alleging negligence and breach
of an implied warranty to perform repairs in a good and
workmanlike manner. Marlen removed the case to the United States
District Court for the Eastern District of Texas, Sherman
Division. After a three-day trial, the jury deliberated for
eleven minutes and returned a verdict for Marlen. The district
court denied Pillsbury’s motions for a new trial and
reconsideration.
II. STANDARD OF REVIEW
The grant or denial of a motion for a new trial will not be
reversed absent abuse of discretion. Calcasieu Marine Nat’l Bank
v. Grant, 943 F.2d 1453, 1464 (5th Cir. 1991). A district
court’s denial of a new trial motion is reviewed more
deferentially than a district court’s decision to grant such a
motion. Brady v. Fort Bend County, 145 F.3d 691, 713 (5th Cir.
1998). As the trial judge has the opportunity to observe the
witnesses in a live trial, the district court abuses its
discretion in denying a motion for new trial on evidentiary
grounds only if “there is an absolute absence of evidence to
support the jury’s verdict.” Roberts v. Wal-mart Stores, Inc., 7
F.3d 1256, 1259 (5th Cir. 1993). This deference “‘operates in
harmony with deference to the jury’s determination of the weight
of the evidence and the constitutional allocation to the jury of
questions of fact.’” Brady, 145 F.3d at 713 (quoting Shows v.
Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)).
III. DISCUSSION
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Pillsbury raises two issues on appeal--(1) insufficient
evidence supported the jury’s verdict that Marlen did not breach
its implied warranty to make good and workmanlike repairs and (2)
the jury was motivated by passion or prejudice. We discuss each
of these issues in turn.
Pillsbury contends that the district court’s refusal to
grant a new trial on the implied warranty claim was an abuse of
discretion. We disagree. Before the jury began deliberations,
the district court instructed as follows:
When parties contract to repair or modify existing
tangible goods, the law deems a warranty or
representation to be made by the repairer that all
repairs or modifications to existing tangible goods are
made in a good and workmanlike manner. A good and
workmanlike manner is that quality of work performed by
one who has the knowledge, training or experience
necessary for the successful practice of a trade or
occupation and performed in a manner generally
considered proficient by those capable of judging such
work. This warranty does not require the repairer to
guarantee the results of their work; the warranty only
requires those who repair or modify existing tangible
goods to perform those services in a good and
workmanlike manner.
Pillsbury argues that no evidence supports the jury’s
conclusion that Marlen repaired the food pump funnel with the
same level of proficiency as a repairer with Lexan expertise.
Pillsbury insists that while it offered evidence at trial showing
Marlen’s complete lack of experience with Lexan, Marlen failed to
offer any evidence suggesting that it had such Lexan expertise.
Therefore, Pillsbury concludes, there is an absence of any
evidence supporting the jury verdict. However, this
characterization of the record ignores evidence on which the jury
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could legitimately have relied in concluding that Marlen
fulfilled its duty to Pillsbury.
First, Marlen introduced evidence that the only other time
it had ever encountered a chocolate chip bunching problem with a
food pump, it successfully solved the problem by switching the
Delrin funnel with a Lexan funnel. This experience with the
General Mills food pump and the success of the Lexan funnel in
remedying a situation similar to Pillsbury’s gave Marlen some
measure of experience using Lexan funnels in food pumps. The
jury could rationally have relied on this evidence to conclude
that Marlen had acted in a good and workmanlike manner--that
Marlen had the requisite Lexan expertise necessary to recommend
Lexan for the Denison food pump.
Second, even Pillsbury admits that the Lexan funnel did, in
fact, alleviate the chocolate chip bunching condition. The
simple fact that Marlen recommended a successful remedy, the
Lexan funnel, for the very problem with which Pillsbury
approached Marlen with, implies that Marlen possessed a level of
expertise both in repairing its food pumps and in using Lexan
funnels.
Third, Pillsbury chose not to repair the wrench-damaged
pump. The jury could have concluded that the dented pump caused
the Lexan filter corrosion; there is no evidence that but for the
wrench accident, the filter would nonetheless have disintegrated.
Marlen informed Pillsbury that the pump had been damaged by
indicating on its service form that the pump needed to be
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repaired “ASAP.” In addition, Pillsbury employees performing
maintenance after the Lexan funnel was installed and the pump was
damaged did not note any wear on the funnel. Here, a
knowledgeable customer, trained by the manufacturer, chose not to
repair its own machine. In Sears, Roebuck & Co. v. Nichols, 819
S.W.2d 900 (Tex. App.--Houston [14th Dist.] 1991, writ denied), a
Texas court of appeals held the implied warranty was fulfilled in
circumstances similar to these. In that case, an informed
customer insisted that only some recommended repairs be made to a
lawnmower, and the absence of one of the repairs led to a
breakdown of the mower. Id. at 902. The Texas court of appeals
held that the implied warranty protects customers from inferior
services but does not allow customers to escape the consequences
of their own decisions. Id. at 905. The jury in this case was
similarly entitled to find that Pillsbury knew the pump had to be
repaired, chose not to do so, and must take responsibility for
its own decision.
These examples are not necessarily exhaustive, but they need
not be. They are all rational bases upon which the jury could
have decided that Marlen’s decision to recommend a Lexan funnel
met the level of proficiency necessary under the implied warranty
theory. The jury could have found that Marlen’s decision
comported with the decision one with knowledge, training, or
experience with Lexan would make. Because the record is not
devoid of any evidence suggesting Marlen met this burden, we will
not disturb the district court’s judgment and denial of
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Pillsbury’s new trial motion.
Pillsbury also argues on appeal that the district court
should have granted a new trial because the short jury
deliberations evidenced passion or prejudice. Though it is true
that if the jury verdict resulted from passion or prejudice, a
new trial is the proper remedy, Wells v. Dallas Indep. Sch.
Dist., 793 F.2d 679, 683 (5th Cir. 1986), such evidence of
improper motivation is lacking here.
Pillsbury bases its contention that the duration of the jury
deliberations provides a basis for reversal on Kearns v. Keystone
Shipping Co., 863 F.2d 177, 182 (1st Cir. 1988), in which the
First Circuit held that, even though the absolute time of
deliberations is irrelevant, when short deliberations are coupled
with insufficient evidence, the district court should set aside
the verdict. This is an unspectacular proposition and one that
could be reached without examining the length of deliberations.
As discussed above, in this case the evidence is sufficient and
therefore Kearns does not apply. As the First Circuit later
articulated, if the evidence is sufficient to support the
verdict, the “complaint [that short jury deliberations evidence a
verdict infected by passion or prejudice] is easily defeated.”
Ahern v. Scholz, 85 F.3d 774, 785 (1st Cir. 1996).
This circuit’s case law makes clear that the actual time of
deliberations is irrelevant to the legitimacy of the judgment.
In affirming a verdict based on a jury’s fourteen-minute
deliberations, this court stated, “We cannot hold an hour-glass
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over a jury. If the evidence is sufficient to support the
verdict, the length of time the jury deliberates is immaterial.”
Marx v. Hartford Accident & Indem. Co., 321 F.2d 70, 71 (5th Cir.
1963). More recently, we affirmed a district court’s refusal to
grant a new trial after a jury deliberated only ten minutes.
Guaranty Serv. Corp. v. American Employers’ Ins. Co., 893 F.2d
725, 729 (5th Cir. 1990)(“The evidence in this case supports the
verdict of the jury; therefore, it is of no importance that the
jury’s determination was made in only ten minutes.”), modified on
other grounds, 898 F.2d 453 (5th Cir. 1990). Pillsbury’s
suggestion that the jury in this case quickly considered
negligence defenses in deciding the implied warranty claim is
irrelevant to the legitimacy of the verdict. As the record
supports the jury’s verdict, Pillsbury’s argument that the trial
court abused its discretion by not ordering a new trial on the
basis of the jury’s short deliberations lacks merit.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Pillsbury’s new trial motion.
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