725 F.2d 1146 (8th Cir. 1984), 82-2526, Vanskike v. Union Pacific R. Co.

Docket Nº82-2526, 82-2542.
Citation725 F.2d 1146
Party NameWarren VANSKIKE, Appellee, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and Burlington Northern Railroad Company, a corporation, Appellants.
Case DateJanuary 16, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1146

725 F.2d 1146 (8th Cir. 1984)

Warren VANSKIKE, Appellee,



Burlington Northern Railroad Company, a

corporation, Appellants.

Nos. 82-2526, 82-2542.

United States Court of Appeals, Eighth Circuit

January 16, 1984

Submitted Nov. 15, 1983.

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[Copyrighted Material Omitted]

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James F. Duncan, Daniel Bukovac, Kansas City, Mo., for appellant Union Pacific R. Co.; Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.

Thomas Strong, Mathew W. Placzek, John Wooddell, Strong, Placzek & Wooddell, P.C., Springfield, Mo., for appellee.

Before LAY, Chief Judge, FAGG, Circuit Judge, and NICHOL, [*] Senior District Judge.

NICHOL, Senior District Judge.

This is the second time that the case of Warren Vanskike has been before this court. 1 In this second appeal, defendants Union Pacific Railroad Company (Union Pacific) and Burlington Northern Railroad Company (Burlington Northern) appeal from a judgment for plaintiff Warren Vanskike entered by the district court 2 following a jury verdict. Union Pacific and Burlington Northern appeal from the district court's denial of their post-trial motions for a new trial or, in the alternative, for a remittitur. Burlington Northern is the successor-in-interest to one of the original defendants, St. Louis-San Francisco Railroad Company (Frisco). We affirm the district court.

Warren Vanskike suffered injuries while he was hitching a semitrailer to a piggyback railroad flatcar owned by Union Pacific and in the possession of Frisco. One of two hitches manufactured by ACF Industries, Inc. (ACF) collapsed, crushing Warren's left arm between two vertical struts of the hitch. As a result, Warren's left arm was amputated between the shoulder and the elbow.

Plaintiff Warren Vanskike brought suit against ACF, Union Pacific and Frisco for damages. His wife Lucille brought an action on her own behalf for loss of consortium she sustained as a result of Warren's injuries. The two cases were consolidated for trial.

At trial, plaintiff proceeded on a theory of products liability against defendants ACF and Union Pacific. The action against Frisco was brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. section 51 et seq. Cross-claims against each of the railroads and by each of the railroads against ACF were also tried. The jury returned a verdict of $903,000 for Warren Vanskike against all defendants and further allocated the verdict: 30% to ACF, 30% to Union Pacific, and 40% to Frisco. Lucille Vanskike was awarded the sum of $1,000 against defendants ACF and Union Pacific.

All defendants appealed from the verdict. Plaintiffs cross-appealed, arguing that their claim for punitive damages had been improperly rejected by the trial court. This court affirmed the denial of the punitive damages claim and affirmed on all other issues with respect to Lucille Vanskike. With respect to Warren Vanskike, however, we affirmed on the issue of liability and reversed and remanded to the district court for a new trial on only the damages issue. Prior to retrial, defendant ACF settled with plaintiffs and was dismissed from the lawsuit.

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On retrial, the jury returned a verdict of $1,811,177.00 for Warren Vanskike. Using the apportionment from the first verdict, the district court entered judgment against Burlington Northern in the amount of $724,470.80 (40%) and against Union Pacific in the amount of $543,353.10 (30%). 3 Both defendants now appeal the verdict on the grounds that the plaintiff's counsel used improper closing argument which created bias and prejudice and resulted in a grossly excessive verdict. Union Pacific appeals the trial court's ruling limiting the cross-examination of plaintiff's expert witness. Burlington Northern appeals the trial court's ruling that evidence of plaintiff's contributory negligence was inadmissible at the second trial.

I. Propriety of Closing Argument and Excessiveness of Verdict.

Union Pacific and Burlington Northern urge that the district court erred in denying their motion for a new trial or, in the alternative, for a remittitur. Defendants argue that plaintiff's counsel used inflammatory statements in his closing argument. These remarks, they contend, caused bias and prejudice in the minds of the jury and resulted in a grossly excessive verdict for the plaintiff.

Closing arguments are made under the direct control of the trial court. Argument of counsel is a procedural question to be determined by federal law. Illinois Central Railroad v. Staples, 272 F.2d 829 (8th Cir.1959). Under federal law, considerable discretion is given to the trial court to control arguments. Yeargain v. National Dairy Products Corp., 317 F.2d 779 (8th Cir.1963). The standard of review on appeal is clear. "The district court is in a better position to determine whether prejudice has resulted from a closing argument and the appellate court will not disturb the district court's ruling unless there has been an abuse of discretion." Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir.1981), quoting McDonald...

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