Ronald Watkins, et al. v. Manuel Casiano, et al., No. 09-2008 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2008 RONALD WATKINS, Individually; BRENDA WATKINS, Individually, Plaintiffs - Appellants, v. MANUEL CASIANO, MD; FORIS SURGICAL GROUP, LLP, Defendants Appellees, and FREDERICK MEMORIAL HOSPITAL, INCORPORATED, Party-in-Interest. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cv-02419-CCB) Submitted: December 30, 2010 Decided: March 1, 2011 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Julia A. Lodowski, Emily C. Malarkey, SALSBURY, CLEMENTS, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellants. Frederick W. Goundry, III, VARNER & GOUNDRY, Frederick, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ronald and Brenda Watkins appeal the district court s order denying their Fed. R. Civ. P. 59(a) motion for a new trial, after a jury verdict for the defendants in a medical malpractice action. On appeal, the Watkinses seek a new trial, claiming unfair surprise deprived them of a fair trial. They contend that Dr. Manuel Casiano s statement on the first day of trial and his subsequent testimony that he used a different surgical stapler than that referenced in the operative notes presented a new theory of defense. We Watkinses review motion the for new district trial court s for an denial abuse of of the discretion. Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500 (4th Cir. 2001). A district court should grant a new trial if (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which Knussman v. would Maryland, prevent 272 (internal citation omitted). the F.3d direction 625, 639 of a (4th verdict. Cir. 2001) Rule 59 allows for a new trial in the event of unfair surprise, but surprise warrants a new trial only if it deprives the party of a fair hearing. Twigg v. Norton Co., 894 F.2d 672, 675 (4th Cir. 1990). The movant must show necessarily reasonably genuine surprise, 3 which was inconsistent with substantial actual prejudice. omitted). We justice and which resulted in Id. (internal quotation marks and citations have carefully reviewed the briefs and the extensive record in this case and conclude that the district court did not abuse its discretion in denying the Watkinses motion for a new trial. Accordingly, we affirm. We grant Appellees motion to submit on briefs and dispense with oral argument because the facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 4

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