Gossett v. Weyerhaeuser Co., 87-2198
| Decision Date | 14 September 1988 |
| Docket Number | No. 87-2198,87-2198 |
| Citation | 856 F.2d 1154 |
| Parties | 26 Fed. R. Evid. Serv. 1148 William H. "Butch" GOSSETT, Jr. and Donna Sue Gossett, Appellants, v. WEYERHAEUSER COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Q. Byrum Hurst, Jr., Hot Springs, Ark., for appellants.
Kevin A. Crass, Little Rock, Ark., for appellee.
Before LAY, Chief Judge, FAGG, Circuit Judge, and DOTY, District Judge. *
Appellants William H. "Butch" Gossett, Jr. and Donna Sue Gossett appeal from an order of the district court 1 denying the Gossetts' motion for a new trial. The Gossetts contend that the district court abused its discretion in denying the Gossetts' request to present a rebuttal witness at trial, and in overruling the Gossetts' objections to certain remarks made by opposing counsel during closing argument. We find that the district court did not abuse its discretion and we affirm the order of the district court denying the Gossetts' motion for a new trial.
In 1969, Appellee Weyerhaeuser Company ("Weyerhaeuser") began purchasing large tracts of land in a mountain basin in Yell County, Arkansas. Weyerhaeuser bought the land to harvest timber. In 1976, the Gossetts purchased 120 acres of land in the valley located directly below the basin. The Gossetts use the land to raise livestock.
After purchasing the timberland, Weyerhaeuser began to develop a road system on the property to facilitate the extraction of timber. In order to maximize its timber harvest, Weyerhaeuser used a type of timber cutting known as "clear cutting" in which the trees, as well as all other vegetation, were stripped from the site. After removing all of the vegetation, the area was "ripped" by digging shallow furrows throughout the harvested site. Pine saplings were then placed into the furrows with the expectation that the replanted area would be harvested again in the future.
The Gossetts claim that these operations were negligently undertaken and that Weyerhaeuser's land management practices dramatically increased the run-off of rainfall from the mountain basin onto the Gossett's land. The Gossetts further contend that the increased run-off caused or substantially contributed to the severe flooding which damaged their property in 1982 and 1984.
The Gossetts filed suit against Weyerhaeuser on November 27, 1985. After a three-day trial in June of 1987, the jury returned a general verdict in favor of Weyerhaeuser. Shortly thereafter, the Gossetts moved for a new trial claiming that the court had improperly excluded rebuttal testimony and erroneously overruled the Gossetts' objections to certain remarks made by opposing counsel during closing argument. The trial court denied the motion and the Gossetts appealed.
Following Weyerhaeuser's case in chief, the Gossetts offered rebuttal testimony of an expert witness who was not identified by the Gossetts prior to trial. Weyerhaeuser opposed the offer, arguing that all experts were to have been identified before trial 2 and that the proffered testimony was not proper rebuttal testimony but was offered merely to supplement the Gossetts' case in chief. Following counsel's offer of proof disclosing the subject matter of the proposed testimony, the trial judge concluded that the testimony should have been elicited during the Gossetts' case in chief, and he refused to allow the witness to testify.
Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978) (quoting Skogen v. Dow Chem. Co., 375 F.2d 692, 705 (8th Cir.1967)). Accordingly, we may reverse a trial court's determination of the admissibility of rebuttal testimony only where there has been a clear abuse of discretion. LaRo Corp. v. Big D Oil Co., 824 F.2d 689, 690 (8th Cir.1987); Hale v. Firestone Tire and Rubber Co., 820 F.2d 928, 936 (8th Cir.1987); Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978); Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 174 n. 6 (8th Cir.1977); Hanrahan v. St. Vincent Hospital, 516 F.2d 300, 302 (8th Cir.1975).
The Gossetts tried their case on the theory that Weyerhaeuser negligently carried out its forestry practices and that such practices increased the run-off of rainfall from the harvested site thereby causing or contributing to the flood damage to the Gossetts' property. At trial, counsel for the Gossetts stated that the rebuttal witness would testify that Weyerhaeuser's forestry activities caused or contributed to the flooding, and that contrary to the representations of Weyerhaeuser's expert, "clear-cutting of the forest above the Gossett farm can be accomplished without the effects that have occurred; that there has been erosion ... and that there is runover of the rips in the soil." Based upon counsel's offer of proof, the trial court concluded that the proffered testimony should have been presented during the Gossetts' case in chief. 3 The court excluded the testimony on that basis and we cannot say that it abused its discretion in so doing.
The Gossetts also contend that they are entitled to a new trial based upon allegedly improper statements made by Weyerhaeuser's counsel during closing argument. In his final argument, counsel for Weyerhaeuser remarked that the company which had previously owned Weyerhaeuser's timberlands did not "grow trees", and that "we"--ostensibly meaning Americans--"were in danger of running out of trees." Counsel for the Gossetts objected to the remarks, arguing that the comments were extremely prejudicial 4 and without any basis in the record. The court overruled the Gossetts' objections, noting that counsel would be afforded "broad latitude" in arguing his case.
Although the district court did not strike the comments from the record or caution the jury immediately after the remarks were made, the court did issue the following admonishment in connection with its general instructions to the jury:
Remember now that the opening statements of the attorneys and their closing arguments and their casual remarks during the course of the trial are not evidence in the case but are made only to help you understand the evidence and to apply the law. Any argument or...
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