Kostelecky v. NL Acme Tool/NL Industries, Inc.

• Decision Date: 27 January 1988
• Docket Number: No. 87-5221,87-5221
• Citation: 837 F.2d 828
• Parties: , 24 Fed. R. Evid. Serv. 663 Robert L. KOSTELECKY and Linda Kostelecky, Appellants, v. NL ACME TOOL/NL INDUSTRIES, INC., a/k/a NL Industries, Inc., a foreign corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 828

837 F.2d 828

10 Fed.R.Serv.3d 168, 24 Fed. R. Evid. Serv. 663

Robert L. KOSTELECKY and Linda Kostelecky, Appellants, v. NL ACME TOOL/NL INDUSTRIES, INC., a/k/a NL Industries, Inc. a foreign corporation, Appellee.

No. 87-5221.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 16, 1987.

Decided Jan. 27, 1988.

David F. Senn, Dickinson, N.D., for appellants.

Daniel L. Hovland, Bismarck, N.D., for appellee.

Before LAY, Chief Judge, and HEANEY and MAGILL, Circuit Judges.

HEANEY, Circuit Judge.

Robert and Linda Kostelecky appeal from a jury verdict dismissing their claims against N.L. Acme Tool Company (N.L.). We affirm.

On May 6, 1987, Robert Kostelecky injured his hand and wrist in an accident while working for his employer, Noble Drilling Corporation (Noble), on an oil rig near Killdeer, North Dakota. Gulf Oil Corporation operated the oil venture and hired Noble as a drilling contractor. Gulf had also hired N.L. to perform specialized operations and field service work on the rig. Kostelecky alleges that his injury occurred while working on a Noble crew under the supervision and control of an N.L. representative.

On April 3, 1984, Kostelecky filed a complaint in federal district court alleging negligence by Gulf and N.L. and asserting various vicarious liability theories against Gulf. On November 10, 1986, the district court issued a pre-trial Order and Memorandum in which it, among other things granted motions by Gulf and N.L. requesting separate trials on the issues of liability and damages. On December 31, 1986, Gulf was dismissed pursuant to a stipulation. On April 8, 1987, the jury returned a verdict finding N.L. was not negligent. Judgment was entered in accordance with the jury verdict on April 9, 1987.

On appeal, Kostelecky argues that the district court erred in (1) admitting into evidence an accident report of Jester Beck (2) permitting a jury instruction on the issue of N.L.'s agency relationship with Gulf (3) submitting a special verdict form to the jury that was not justified by the evidence and was confusing (4) ordering separate trials on the issues of liability and damages and (5) quashing the subpoena duces tecum of Greg Tucker, an N.L. employee.

1. Report of Jester Beck

Kostelecky contends that the district court erred in admitting into evidence an accident report of Jester Beck, one of Kostelecky's co-workers and an eyewitness to the accident. In particular, Kostelecky objects to statements in the report that the accident was caused by "the injured's own conduct" and that the accident could have been avoided if Kostelecky had listened to warnings and instructions given to him just prior to the accident. He contends that the statements are inadmissible because they are nothing more than the legal conclusions of a lay witness and could not have assisted the trier of fact in determining a factual issue. N.L. argues that the report is admissible because it represents Beck's firsthand observations, recorded within hours of the accident, which were therefore helpful to the jury in its deliberations. Moreover, N.L. argues that under Fed.R.Evid. 704(a), testimony in the form of an opinion is not rendered inadmissible merely because it embraces an ultimate issue to be decided by the trier of fact.

The admissibility of opinion testimony is generally committed to the sound discretion of the trial court. Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682, 685 (8th Cir.1981). Under the Federal Rules of Evidence, opinion testimony is not inadmissible solely because it embraces an ultimate issue to be decided by the trier of fact. Fed.R.Evid. 704(a). This does not, however, mean that all opinion testimony as to ultimate issues is admissible. In the case of a witness not testifying as an expert, the opinion testimony must be "(a) rationally based on the perception of the witness and (b) be helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.R.Evid. 701. In the case of an expert witness, the opinion must "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702.

Under either rule, evidence that merely tells the jury what result to reach is not sufficiently helpful to the trier of fact to be admissible. See Hogan v. American Telephone and Telegraph Co., 812 F.2d 409, 411-12 (8th Cir.1987). Often such evidence is labeled a "legal conclusion." As the comment of the Advisory Committee on the federal rules states:

[T]he question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.

Although it is not easy to distinguish permissible questions from those that are not permissible, see Hogan, at 412, we find that the trial court abused its discretion in admitting the accident report. The case was tried on a theory of negligence. Legal causation was very much in dispute. Therefore, in the context of this case, the opinion as to causation served to do nothing more than tell the jury what result it should reach. Using the example in the advisory committee comment, the question was more akin to "Did T have capacity to make a will?" than a request for the specific perceptions of the witness. See, e.g., Owen v. Kerr-McGee Corp., 698 F.2d 236, 239-40 (5th Cir.1983) (excluding expert opinion as to the cause of an accident in a negligence case); Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682, 685 (8th Cir.1981) (affirming trial court's exclusion of expert's testimony that a lack of adequate warnings and instructions constituted defects which made a product unreasonably dangerous); cf. Hogan, at 411 (finding district court's failure to sustain objection to question whether witness in an employment discrimination suit had witnessed any discriminatory acts constituted harmless error). But see Wade v. Haynes, 663 F.2d 778, 783-84 (8th Cir.1981) (affirming trial court's admission of testimony by corrections administration expert that prison official's conduct constituted "egregious failure"); Nielson v. Armstrong Rubber Co., 570 F.2d 272, 276-77 (8th Cir.1978) (admitting expert's opinion that a manufacturing process caused a defect in a tire rim). Thus, we find that Beck's accident report was erroneously admitted. ¹

The error in admitting the report was, however, harmless in this instance because it did not substantially affect Kostelecky's rights. See Fed.R.Evid. 103(a); Hogan, at 410. Examination of the record reveals that just prior to the admission of the report, Beck testified, without objection, that he and another member of the crew had warned Kostelecky as to the danger involved and instructed him concerning proper safety measures to be followed. Beck also testified, without objection, that the accident could have been avoided if Kostelecky had followed the warnings that were given to him. Trial transcript at 100-01.

In addition, accident reports of three of Kostelecky's co-workers at the time of the accident were admitted without objection. Each of the reports were prepared on a form identical to that used by Jester Beck. In each of the reports Question 4 stated, "In my opinion the accident was caused by," followed by seven possible responses ranging from "The injured's own conduct" to "defective or dangerous equipment." In each of the three reports admitted into evidence, without objection, the response indicating that the accident was caused by the injured's own conduct was selected. Trial transcript at 136 (report of James Huber); Trial transcript at 161 (report of Donald Buck); Trial transcript at 193 (report of Larry Morgan).

Finally, question 7 on the accident report form asked the open ended question, "How do you think this accident could have been avoided?" The Huber report responded, "The accident could have been avoided by [Kostelecky] listening to others tell him to move and let NL equipment fall to the floor instead of trying to hold it." Trial transcript at 138. The Buck report responded that the accident could have been avoided if Kostelecky "would have let it drop and gotten out of the way." Trial transcript at 162. The Morgan report indicated that the accident could have been avoided if Kostelecky "could have gotten out of the way when told." Trial transcript at 194. Thus, in light of the contents of the three other accident reports admitted into evidence without objection, we hold that any error in admitting the Beck accident report was harmless and did not substantially affect Kostelecky's rights.

2. The Agency Instruction

Kostelecky contends that the district court erred in submitting an instruction to the jury stating that N.L. was the agent of Gulf and that Gulf was...