721 F.3d 606 (8th Cir. 2013), 12-1846, Warger v. Shauers

Docket Nº12-1846.
Citation721 F.3d 606
Opinion JudgeBYE, Circuit Judge.
Party NameGregory P. WARGER, Plaintiff-Appellant v. Randy D. SHAUERS, Defendant-Appellee.
AttorneyGary D. Jensen, argued, Rapid City, SD, for Appellant. Steven C. Beardsley, Travis B. Jones, on the brief, Rapid City, SD, for Appellant. Ronald R. Kappelman, argued Rapid City, SD, for Appellee. Cassidy M. Stalley, Gregory G. Strommen, on the brief, Rapid City, SD, for Appellee.
Judge PanelBefore WOLLMAN, BYE, and COLLOTON, Circuit Judges.
Case DateJuly 24, 2013
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

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721 F.3d 606 (8th Cir. 2013)

Gregory P. WARGER, Plaintiff-Appellant

v.

Randy D. SHAUERS, Defendant-Appellee.

No. 12-1846.

United States Court of Appeals, Eighth Circuit.

July 24, 2013

Submitted: March 12, 2013.

Page 607

[Copyrighted Material Omitted]

Page 608

Gary D. Jensen, argued, Rapid City, SD, for Appellant.

Steven C. Beardsley, Travis B. Jones, on the brief, Rapid City, SD, for Appellant.

Ronald R. Kappelman, argued Rapid City, SD, for Appellee.

Cassidy M. Stalley, Gregory G. Strommen, on the brief, Rapid City, SD, for Appellee.

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

BYE, Circuit Judge.

Gregory Warger sued Randy Shauers to recover for injuries he sustained during a traffic accident. After a mistrial, the jury returned a verdict for Shauers. Warger subsequently moved for judgment as a matter of law, or, in the alternative, for a new trial. The district court 1 denied his motion. On appeal, Warger contends the district court (1) erred by not granting a second mistrial after Shauers's counsel violated an in limine order, (2) should have granted him judgment as a matter of law because there was insufficient evidence to support the jury's verdict, and (3) improperly barred expert witnesses from opining on statutes governing the rules of the road. We affirm.

I

On August 4, 2006, Randy Shauers and Gregory Warger were involved in a traffic accident in Pennington County, South Dakota. Shauers's truck, which was pulling a camper trailer, clipped Warger's motorcycle. Warger suffered serious injuries, including the amputation of his left leg. He filed suit against Shauers, asserting a claim of negligence and seeking to recover for property damage, loss of enjoyment of life, permanent disability, present and future medical expenses, and prejudgment interest.

A jury trial commenced on July 20, 2010, resulting in a mistrial after Shauers's attorney violated the district court's in limine order instructing " that experts may offer opinion testimony as to a driver's conduct but may not offer legal opinions as to whether such conduct violates South Dakota law." Appellant's Add. 35. During a second trial, on cross-examination of an expert witness, Shauers's attorney again violated the order by asking whether " Mr. Warger ha[d] to yield to the right-of-way and not enter ... until he [was] certain that the highway [was] free of oncoming traffic...." Id. at 38. Warger's counsel objected and asked for a recess. The court excused the jury and held a brief hearing, during which Warger moved for a mistrial. The court acknowledged the violation, but denied the motion for mistrial because it found the violation had not been prejudicial. After the recess, the court instructed the jury to disregard the question. The trial continued without any further violations of the in limine order, and

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the jury returned a verdict in favor of defendant Shauers.

After the jury was released from further jury duty, one of the jurors contacted Warger's lawyer and expressed his concern as to the jury foreperson having behaved inappropriately during deliberations. Specifically, the juror alleged the foreperson had focused on her own daughter's past experience with a serious traffic accident, rather than the evidence presented at trial. In an affidavit, the juror contended that during deliberations the foreperson stated her daughter's life would have been ruined had her daughter been held liable for damages caused by the accident. The affidavit further alleged the foreperson expressed she was unwilling to return a verdict for Warger because the Shauers were a young couple and their lives would also be ruined should they be found liable. Further, it stated other jurors had been persuaded by her expressions of sympathy and thus decided to return a verdict for Shauers. Warger subsequently filed a motion for judgment as a matter of law, or, in the alternative, for a new trial. The district court refused to consider the juror's affidavit and denied the motion. Warger filed a timely appeal.

II

A. Violation of the In Limine Order

On appeal, Warger argues the district court should have declared a mistrial because the second violation of the in limine order was prejudicial. This Court will not disturb a trial court's denial of a motion for mistrial " absent a clear showing of abuse of discretion." Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 762 (8th Cir.2001). " A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear." Black v. Shultz, 530 F.3d 702, 706 (8th Cir.2008). Such violation must constitute prejudicial error or result in an unfair trial. Id. " Prejudicial error is error which in all probability produced some effect on the jury's verdict and is harmful to the substantial rights of the party assigning it." Id. (quoting Pullman, 262 F.3d at 762).

It is undisputed the district court's in limine order was specific in its prohibition and the violation was clear. The issue raised on appeal is whether the violation was prejudicial. We agree with the district court, it was not. The court gave a curative instruction after the recess and, during final jury instructions, reminded the jury that if an objection is sustained they " must ignore the question and must not try to guess what the answer might have been." Appellant's App. 79. We have previously upheld district courts' refusals to grant mistrials for violations of in limine orders when, inter alia, the court gives " a prompt and clear curative instruction." Russell v. Whirlpool Corp., 702 F.3d 450, 460 (8th Cir.2012).

Warger argues the curative instruction was insufficient because it was not given until the jury had returned from the recess. Although it is true the instruction was not given until after the recess, Warger provides no persuasive explanation as to how Shauers's question affected the jury's verdict. He claims the question was prejudicial because it was an attempt to introduce inadmissible evidence which was key to Shauers's defense. However, the jury heard no inadmissible testimony because the district court sustained the objection and Shauers's counsel did not ask any similar questions during the remainder of the trial. Accordingly, we cannot say the district court abused its discretion in denying a new trial.

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B. Sufficiency of the Evidence

Warger next argues the district court erred when it denied his motion for judgment as a matter of law or for a new trial. First, he contends there was insufficient evidence to support the jury's verdict. Second, he argues the verdict was against the weight of the evidence because it was tainted by juror misconduct. " We review de novo the district court's denial of a motion for judgment as a matter of law, using the same standards as the district court." Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d 991, 995 (8th Cir.2010). We will not grant such a motion unless no reasonable jury could have returned a verdict in favor of the non-moving party. Fed.R.Civ.P. 50(a). We will " grant judgment as a matter of law only when all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party." Littleton v. McNeely, 562 F.3d 880, 885 (8th Cir.2009) (internal quotation marks and citation omitted). The standard for granting a new trial is even higher. Howard, 615 F.3d at 995. Such decision to grant a new trial lies within the discretion of the district court, Fed.R.Civ.P. 59, and we review the district court's...

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