UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30927
Summary Calendar
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VAN BROCK; MARIE BROCK,
Plaintiffs-Appellants,
versus
WAL-MART STORES INC, doing business as Sam's Wholesale Club,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
(CA-93-155-B-M2)
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January 29, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this personal injury action appeal, concerning the
exclusion of testimony by a safety expert, Van and Marie Brock
contest the grant of a motion in limine and the denial of a motion
for reconsideration. We AFFIRM.
I.
Van Brock was allegedly injured when he fell over a concrete
automobile bumper block, which was painted yellow and positioned at
the head of a handicapped parking space in the parking lot of
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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defendant Wal-Mart. Brock claimed, under theories of strict
liability and negligence, that the block was dangerous and created
a hazard to persons walking in the parking lot.
The parties consented to trial before a magistrate judge.
Wal-Mart's motion in limine to exclude any evidence, reference, or
jury instruction pertaining to the testimony of Michael J. Frenzel,
Brock's safety expert, was granted. Brock moved for
reconsideration and submitted the expert's report to the court for
review; the motion was denied. Brock then moved to amend the order
denying reconsideration in order to allow an interlocutory appeal;
that motion was denied also.
A jury found that Wal-Mart was not negligent and that the
parking lot was not defective. Judgment was entered for Wal-Mart.
II.
At issue is whether the district court erred in granting Wal-
Mart's motion in limine and in denying Brock's motion for
reconsideration. In order to preserve for appeal the denial or
granting of a motion in limine, a party must object when the
subject covered by the motion arises at trial. United States v.
Graves, 5 F.3d 1546, 1551-52 (5th Cir. 1993), cert. denied ___ U.S.
___, 114 S.Ct. 1829 (1994). Brock has not shown that he made such
an objection. He has not provided a trial transcript; nor has he
asserted this point in his brief; nor do the minute entries of the
trial reflect an objection.
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Because Brock did not provide a trial transcript, we obviously
do not know what occurred at trial. Restated, this issues has not
been preserved. In any event, we will review for plain error.
Under plain error review, Brock must show: "(1) that an error
occurred; (2) that the error was plain, which means clear or
obvious; (3) the plain error must affect substantial rights; and
(4) not correcting the error would `seriously affect the fairness,
integrity or public reputation of judicial proceedings'".
Highlands Insurance Company v. National Union Fire Insurance
Company of Pittsburgh, 27 F.3d 1027, 1031-32 (5th Cir. 1994).
Under FED. R. EVID. 702, expert testimony may be allowed "[i]f
scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue". Whether the testimony of an expert witness will assist
the jury is within the sound discretion of the trial judge.
Christopherson v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th
Cir. 1991) abrogated in part by Daubert v. Merrell Dow
Pharmaceuticals, __ U.S. __, 113 S.Ct. 2786 (1993); United States
v. Johnson, 575 F.2d 1347, 1360-61 (5th Cir. 1978) (citing Salem v.
United States Lines Company, 370 U.S. 31 (1962)), cert. denied 440
U.S. 907 (1979).
Brock's expert was to testify that, based on the absence of
bumper blocks other than at the handicapped parking places and on
the fact that the yellow paint used to mark the bumper block was
the same as that marking the shopping cart corral, lamp base, and
the parking lot stripes, it was foreseeable that a preoccupied
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pedestrian would fail to notice the bumper block, trip and fall.
The district court's rulings that the expert testimony "lack[ed]
evidence of any scientific knowledge" and would not assist the jury
in determining whether it was foreseeable that a pedestrian would
"fail to notice the bumper block, trip and fall" were not "clear"
or "obvious". There was no plain error.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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