Nanninga v. Three Rivers Elect. Coop., 98-4040

Decision Date01 November 2000
Docket NumberNo. 98-4040,98-4040
Citation236 F.3d 902
Parties(8th Cir. 2000) CHRISTINE J. NANNINGA, individually, and on behalf of Larry L. Nanninga and Scott M. Nanninga, and as personal representative of the estate of Bruce E. Nanninga, deceased; LARRY L. NANNINGA; SCOTT M. NANNINGA, Plaintiffs - Appellants, v. THREE RIVERS ELECTRIC COOPERATIVE, a Missouri Corporation, Defendant -Appellee. Re-submitted: <A HREF="#fr1-*" name="fn1-*">*
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the Western District of Missouri

[Copyrighted Material Omitted] Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.

TUNHEIM, District Judge.

On July 31, 1994, plaintiffs' decedent Bruce Nanninga, a flight engineer, was killed along with three other crew members when their CH-47 military helicopter struck a set of defendant's power lines strung approximately 100 feet over the Osage River in central Missouri. Nanninga drowned as a result of the accident, and his widow and children filed a wrongful death diversity action in the United States District Court for the Western District of Missouri. Plaintiffs filed suit in the Western Division, but the district court granted defendant's motion for intradistrict change of venue and transferred the action to the Central Division.

Meanwhile, the families of two of the three other crew members killed in the crash brought suit in Missouri state court. On May 7, 1998, after discounting for comparative fault on the part of the decedents, a jury awarded those plaintiffs $2,750,000 and $2,500,000, respectively.

On August 11, 1998, the jury in this action returned a verdict for defendant. The district court denied plaintiffs' motions for judgment as a matter of law and for a new trial and entered judgment for defendant. Plaintiffs' appeal raises the following issues: (1) whether the state court jury's finding of liability should collaterally estop defendant from contesting its liability in this case; (2) whether the district court correctly instructed the jury that defendant owed plaintiffs' decedent a duty of ordinary care; (3) whether the trial court erred in denying plaintiffs' motion for a change of venue; (4) whether the trial court erred in restricting plaintiffs' voir dire; (5) whether the trial court erred in delaying its ruling on the issue of comparative fault; (6) whether the trial court erred in permitting evidence and argument relating to the decedents' violation of military regulations; (7) whether the trial court erred in permitting evidence that the United States Army paid for the replacement of the power lines; (8) whether the trial court erred in allowing testimony via affidavit; (9) whether the trial court adequately instructed the jury concerning media publicity; and (10) whether the verdict was against the weight of the evidence.2 We affirm.

A. The Applicable Standard of Care

Plaintiffs contend that, under Missouri law, defendant owed a duty of the highest degree of care because defendant is supplier of electricity. We review the district court's determination of state law de novo, see Salve Regina College v. Russell, 499 U.S. 225, 231 (1991); First Bank v. Hogge, 161 F.3d 506, 510 (8 th Cir. 1998), and we are bound by the highest state court's pronouncement of state law, see B.B. v. Continental Ins. Co., 8 F.3d 1288, 1291 (8 th Cir. 1993).

As noted above, in the parallel state court case, the Missouri Supreme Court determined that ordinary care is the correct standard of care in the circumstances of this case. See Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 158 (Mo. 2000). We therefore affirm the trial court's instruction on the standard of care.

B. Collateral Estoppel

In their motion for judgment as a matter of law and again in their motion to renew request for judgment as a matter of law, plaintiffs argued that defendant should be collaterally estopped from contesting its liability because the state court jury found defendant liable. The district court declined to apply collateral estoppel because the state court applied a different standard of care, the plaintiffs could have intervened in the state case, and the state court submitted the issue of the decedents' comparative fault to the jury, whereas the district court determined that there was no basis for comparative fault.

The application of collateral estoppel in diversity cases is determined according to state law. See Jaramillo v. Burkhart, 999 F.2d 1241, 1243 (8 th Cir. 1993). In Missouri, trial courts have broad discretion in permitting the offensive use of collateral estoppel. See State v. Daniels, 789 S.W.2d 243, 245 (Mo. Ct. App. 1990). Previously, we concluded that the district court did not abuse its discretion in refusing to apply collateral estoppel because the issues in the two cases were not identical and plaintiffs could have joined the state case. See Nanninga, 203 F.3d at 535. Because the Missouri Supreme Court has reversed the judgment of the state trial court, there is now an additional reason to affirm the district court's refusal to apply collateral estoppel. Before the doctrine may be applied, a final judgment on the merits must have been rendered involving the same claim or issue sought to be precluded. See Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo. Ct. App. 1999). In Missouri, when an appellate court vacates a judgment, the lower court's judgment cannot be considered a final judgment on the merits for purposes of collateral estoppel. See State v. Nunley, 923 S.W.2d 911, 922 (Mo. 1996). For this reason and the reasons articulated in our previous decision, therefore, we conclude that the district court did not abuse its discretion in refusing to give collateral estoppel effect to the state court judgment.

C. Change of Venue

Plaintiffs initially filed this lawsuit in the Western Division of the Western District of Missouri in Kansas City. The district court granted defendant's motion for intradistrict change of venue and the case was assigned to the Central Division in Jefferson City. The district court denied plaintiffs' motion for a change of venue back to Kansas City. Plaintiffs argue that the jurors in Jefferson City were biased in favor of defendant because they were members of electrical cooperatives.

The district court's denial of a motion for a change of venue is reviewed for abuse of discretion. See Shapiro v. Kauffman, 855 F.2d 620, 621 (8 th Cir. 1988). The party challenging the impartiality of the jurors has the burden of showing that particular jurors hold opinions that raise a presumption of partiality. See id. Plaintiffs have failed to make this showing. Other than the adverse verdict, they point to nothing that could call the jurors' impartiality into question. The district court did not abuse its discretion in permitting the action to remain in Jefferson City.

D. Voir Dire

Plaintiffs argue that the district court abused its discretion in limiting voir dire both in time and scope. Defendant first contends that because the plaintiffs did not object to the twenty minute time limit on voir dire, we must review that issue for plain error. Although the record does not reflect whether plaintiffs objected to the time limit, under either standard of review the district court did not err in limiting voir dire in time or scope.

District courts have broad discretion in determining what questions will be asked during voir dire. See Ratliff v. Schiber Truck Co., 150 F.3d 949, 956 (8 th Cir. 1998). Plaintiffs cite specific questions that they ought to have been allowed to ask, concerning such topics as holding companies accountable, placing a monetary value on human life, and media coverage of an unrelated military plane crash in Italy. While the district court denied some of plaintiffs' questions, the court and plaintiffs' counsel together covered the following topics: the jurors' background, ability to serve, prior jury service, and familiarity with the case and witnesses; whether any jurors were users or members of defendant; juror familiarity with defendant's insurance carrier; monetary awards in lawsuits; military and aviation experience; opinions about compensating for a loss of life with money; and feelings about lawsuits being brought against a company. These questions touched on nearly all the areas plaintiff contends should have been covered during voir dire, and we are unable to conclude that the time limit or the restrictions were an abuse of discretion.

E. Comparative Fault

On the fourth day of trial, the district court determined that it would not instruct the jury on comparative fault. Plaintiffs argue that the district court erred in not making this determination earlier and in subsequently permitting defendant to present evidence and argument concerning the pilots' violations of military and civilian flight rules. Plaintiffs assert that had the trial court ruled on the comparative fault issue earlier and properly enforced its ruling, no evidence concerning these alleged violations would have been permitted. The record does not reflect whether plaintiffs objected either to the timeliness of the ruling or the subsequent admission of evidence; regardless of the standard of review, however, the district court did not err in admitting this evidence, because it was relevant to defendant's argument that its alleged negligence was not the cause of the accident. See Whisenand v. McCord, 996 S.W.2d 528, 531 (Mo. Ct. App. 1999) (explaining that a defendant may introduce any evidence that tends to establish that it is not liable for negligence, including evidence that a third party caused the accident).

F. Evidence that the Army Paid to Replace Power Lines

Plaintiffs contend that defendant violated a stipulated motion in limine to exclude testimony that the Army reimbursed defendant for the replacement of its power lines. Although the district court instructed the jury to disregard the...

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