UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                   ______________________________

                            No. 01-40922
                   ______________________________


BRENDA CAUDELL, Etc; ET AL,

            Plaintiffs

BRENDA CAUDELL, Individually and as Administrator of the Estate of
JOSEPH M. CAUDELL, (deceased)

            Plaintiff - Appellee


VERSUS



HALLIBURTON ENERGY SERVICES, INC; ET AL

            Defendants

FMC CORPORATION, doing business as FMC Energysystems Group

            Defendant - Appellant


         ___________________________________________________

             Appeal from the United States District Court
                  For the Southern District of Texas
                           No. G-99-CV-789
         ___________________________________________________
                             July 15, 2002


Before KING, Chief Judge, PARKER, Circuit Judge, and ELLISON*,
District Judge.


     *
      District Judge of the Southern District of Texas, sitting by
designation.

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PER CURIAM:**

I.     INTRODUCTION

       The Plaintiff-Appellee Brenda Caudell brought suit against the

various defendants as a result of an accident in which her husband,

Joseph Caudell, was killed when a pipe parted from a valve under

high pressure.    The case was tried to a jury.     The jury determined

that the Defendant-Appellant, FMC Corporation (“FMC”), was 50% at

fault in causing Mr. Caudell’s death and awarded the plaintiff more

than $5 million dollars in damages. The damage award included $3.5

million for Mrs. Caudell’s loss of society and $1 million for Mr.

Caudell’s   conscious    pain    and   suffering.   The   district   court

adjudged that Mrs. Caudell recover approximately $3 million from

FMC.

       FMC appeals from that judgment in favor of plaintiff-appellee

Brenda Caudell.       FMC argues that the district court erred in

failing to grant a mistrial after the district court questioned a

witness.

II. STANDARD OF REVIEW

       We review the district court’s denial of a motion for mistrial

for abuse of discretion.        U.S. v. Bentley-Smith, 

, 1378

(5th Cir. 1993).      In doing so, we consider the jury charge and any

corrective measures taken by the trial court to cure possible


       **
      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this opinion should not be published and is not precedent except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.

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errors.    Streber v. Hunter, 

, 740 (5th Cir. 2000).

III. DISCUSSION

     Our    role   is   to   determine   whether   the   district   court’s

questions were so prejudicial that FMC was denied a fair, as

opposed to a perfect, trial.       United States v. Williams, 

, 1086 (5th Cir. 1987).         In making this determination, we

review the proceedings as a whole and consider such factors as the

context of the questions, the person to whom the questions were

directed, and the presence of curative instructions. United States

v. Saenz, 

, 702 (5th Cir. 1998).

     Rule 614(b) of the Federal Rules of Evidence permits judges to

question witnesses. We have previously stated that a trial judge’s

questioning of witnesses is permissible if aimed at clarifying the

evidence or managing the trial.           

.

However, we have also clearly stated that a judge’s questioning

should never evince or appear to evince partiality to one side over

the other.     United States v. Davis, 

, 381 (5th Cir.

2001).     In short, “a judge’s discretion to question witnesses is

not unfettered.     A judge cannot assume the role of an advocate for

either side.”      U.S. v. Martin, 

, 553 (7th Cir. 1999).

     After careful consideration, we conclude that the district

court’s questions and comments crossed the line to the point where

a reasonable jury could question the impartiality of the trial

judge.     Therefore, we reverse the judgment of the district court


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and remand the case back to the district court for a new trial.1

FMC’s request to remove Judge Kent from retrial of the case is

denied.




     1
      FMC raises several other issues on appeal. Because we have
concluded that FMC is entitled to a new trial, we decline to
address the other issues except to note that the district court’s
decision to allow the Garth Brooks song to be played to the jury
was reversible error. On retrial, the district court can allow the
video with the pictures of Mr. and Mrs. Caudell to be shown to the
jury. However, the audio portion of the video which included the
Garth Brooks song shall not be broadcast to the jury.

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