## Facts

- Two heavy tank trucks traveling in opposite directions sideswiped near the centerline of a highway in Liberty County, Texas at about 4:00 a.m. on September 14, 1972.
- Robert Eugene Conway was driving the westbound truck owned by Dixie Transport of Texas, Inc. (Dixie Transport). After impact, his truck veered off the roadway and overturned, killing him.
- The eastbound truck was owned by Chemical Leaman Tank Lines, Inc. (Chemical Leaman) and driven by John Johnson, who survived and was the only eyewitness.
- Conway’s widow and children, along with Dixie Transport (plaintiffs), sued Chemical Leaman in federal court under diversity jurisdiction, alleging Johnson negligently crossed the centerline into Conway’s lane.
- Johnson testified that Conway abruptly turned into Johnson’s lane when the trucks were about a truck-length apart, with both traveling around 50 mph.
- Physical evidence at the scene (including roadway marks and vehicle dimensions) and accident-reconstruction testimony were central, with each side offering competing interpretations about which truck crossed the centerline.
- First jury trial: the jury found for plaintiffs, but the judgment was reversed on appeal due to an evidentiary error and the case was remanded.
- Second jury trial: after plaintiffs finished presenting their case, Chemical Leaman called Arnold Hay, an accident-reconstruction witness who had not testified in the first trial and had not been designated as a witness for the second trial.
- Over plaintiffs’ objection, Hay testified and offered a new theory: both trucks approached the centerline so closely that their mirrors struck, causing Conway to lose control.
- In special interrogatories, the second jury found both Conway and Johnson were proximate causes of the collision, and judgment was entered for Chemical Leaman.
- Plaintiffs appealed, challenging the interrogatories and the admission of Hay’s testimony; the district court granted a new trial based on the interrogatories without deciding the Hay issue, leading to a third jury trial.
- Third jury trial: the jury returned a verdict for plaintiffs, but that judgment was later reversed because the second-trial interrogatory answers supported judgment for Chemical Leaman, meaning the third trial should not have occurred on that interrogatory ground.
- After remand, plaintiffs moved for a new trial based on the admission of Hay’s surprise testimony in the second trial; the district court granted a new trial and entered judgment for plaintiffs based on the third trial’s verdict.
- Chemical Leaman appealed from the order granting a new trial.

## Issues

1. Whether the district court abused its discretion by granting a new trial under Federal Rule of Civil Procedure 59 based on unfair surprise and prejudice from Chemical Leaman’s late, undisclosed accident-reconstruction witness in the second trial.
2. Whether prior appellate rulings barred the district court from granting a new trial on the surprise-witness ground after earlier appeals focused on the second-trial interrogatories.

## Decision

- The Fifth Circuit affirmed.
- The court held the district court did not abuse its discretion in granting a new trial due to the prejudicial effect of Hay’s unexpected testimony introducing a materially different accident theory late in the second trial.
- The court rejected the argument that earlier appellate decisions foreclosed relief on the Hay issue because that issue had not been decided in the prior appeal(s).

## Legal Principles

- A district court has broad discretion to grant a new trial under Federal Rule of Civil Procedure 59 when necessary to prevent an unfair trial.
- Unfair surprise can justify a new trial when a party introduces a witness not disclosed through pretrial procedures and the testimony presents a new theory after the opposing party has already presented its case, leaving no fair chance to meet it.
- In reviewing a new-trial order, the court of appeals applies an abuse-of-discretion standard and gives substantial deference to the trial judge’s assessment of prejudice and trial fairness.
- Prior appellate rulings do not prevent a district court from granting a new trial on a ground that earlier appellate proceedings did not decide.

## Conclusion

The Fifth Circuit held that the district court acted within its discretion in ordering a new trial because Chemical Leaman’s late, undisclosed accident-reconstruction witness presented a new theory near the close of the second trial that unfairly surprised plaintiffs and affected the jury’s causation findings, and earlier appeals did not bar the district court from granting relief on that separate ground.


Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108 (1982)