Unpublished Dispositionrichard L. Wodarski, and Wife, Helenmarie Wodarski,plaintiffs-appellants, v. Tennessee Asphalt Company, Defendant-appellee, 872 F.2d 1031 (6th Cir. 1989)

Plaintiffs appeal from a jury verdict for defendant in this diversity personal injury action. Plaintiffs assert that they are entitled to a new trial based on four evidentiary errors and on newly discovered evidence. The District Court addressed two of the asserted evidentiary errors (admissibility of Dr. Kliefoth's testimony and of other accidents in the construction zone) and the newly discovered evidence argument in denying their motion for a new trial.

Upon consideration of the record in this case, the briefs and the oral argument of counsel, we AFFIRM the judgment of the District Court for the reasons stated with respect to the three grounds addressed in its Memorandum Opinion and Order, filed April 13, 1988.

The two additional evidentiary errors asserted by plaintiffs which the District Court did not address likewise have no merit. First, they contend that the jury was confused over conflicting testimony by Lowe (road widened) and Eggleston (road not widened). It was, however, up to the jury to weigh conflicting testimony. Second, they argue that the court erred in refusing to allow the jury to examine an exhibit on which plaintiffs' counsel converted 55 miles per hour to 81 feet per second. This was within the trial court's discretion.

AFFIRMED.