Moses v. Union Pacific R.R.

• Decision Date: 04 October 1995
• Docket Number: MID-SOUTH,Nos. 94-3740,94-3742,s. 94-3740
• Citation: 64 F.3d 413
• Parties: Theodore P. MOSES, Appellant, v. UNION PACIFIC RAILROAD, Appellee/Appellant, v.MILLING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 413

64 F.3d 413

Theodore P. MOSES, Appellant, v. UNION PACIFIC RAILROAD, Appellee/Appellant, v. MID-SOUTH MILLING COMPANY, Appellee.

Nos. 94-3740, 94-3742.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1995.

Decided Aug. 29, 1995.

Rehearing Denied Oct. 4, 1995.

Douglas P. Dowd, St. Louis, MO, argued (Dennis J.C. Owens, Kansas City, MO, on the brief), for appellant.

Michael O'Keefe, St. Louis, MO, argued (James W. Erwin and J. Powell Carman, St. Louis, MO, on the brief), for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Theodore Moses sued Union Pacific and some other railroads for personal injuries arising out of an accident involving a railroad car. Union Pacific then impleaded Mid-South Milling Company, Mr. Moses's employer, for indemnity under an agreement between them. Mr. Moses was unsuccessful in his suit against Union Pacific, and the district court granted Mid-South's motion for summary judgment. Both Mr. Moses and Union Pacific have appealed their respective cases. We affirm as to Mr. Moses's suit against Union Pacific, but reverse the grant of summary judgment in favor of Mid-South.

I.

Mr. Moses suffered personal injuries when he was struck in the head by a pull plate that broke off a Burlington Northern hopper railroad car while he was assisting in pulling the car with an electric winch at Mid-South's plant in Kansas City, Kansas. (A pull plate is a U-shaped piece of metal which Mid-South employees used for moving the railcar.) Evidence showed that a latent defective weld gave way causing the pull plate to break off. Union Pacific's relationship to the accident is that it took delivery of the hopper from another railroad and inspected it before delivering it to Mid-South.

After settling with the other defendant railroads, Mr. Moses proceeded to a jury trial against Union Pacific on claims of negligence and breach of warranty of fitness by Union Pacific as a bailor. The jury returned a verdict in favor of Union Pacific, finding that Union Pacific was not negligent and did not breach a warranty of fitness.

II.

A.

Plaintiff objects first to statements that defendant's counsel made in closing argument concerning Mr. Moses's workers compensation insurance. The manner in which the issue of collateral sources was injected into the trial requires a rather detailed recitation of matters in the record.

Plaintiff himself sought to admit, as a business record, a handwritten note made by Mid-South's plant manager, a Mr. Starkey. For reasons not altogether clear to us, plaintiff offered the entire file in which the note was found, and the file, over defendant's hearsay objection, was admitted. Some documents in the file referred to plaintiff's workers compensation coverage and medical insurance. Defense counsel then asked the court to allow him to cross-examine Mr. Starkey on the subject of collateral sources on the ground that they were relevant to Mr. Starkey's motives for testifying. Counsel intimated that Mid-South itself, because it paid some medical benefits from its own pocket, might have a lien on any recovery that plaintiff might receive. We presume, therefore, that counsel's request to cross-examine on the matter of collateral sources was based on his right to impeach the witness.

Once Mr. Starkey's actual cross-examination began, however, counsel for the defendant did not limit himself to an inquiry concerning medical insurance. He also asked questions about Mr. Moses's workers compensation insurance carried by Cigna Corporation, and attempted to get Mr. Starkey to opine that there was no limit whatever to Mr. Moses's workers compensation benefits. Mr. Starkey simply stated that he had no idea what that coverage was.

During closing argument, over plaintiff's objection, defense counsel was allowed to tell the jury what was not true, namely, that "the Cigna Insurance Company ... is here in this courtroom asking for all these medical expenses and all of these lost wages, and it's not Ted Moses." This was untrue because Mr. Moses was the plaintiff. This was not a subrogation action and Cigna's interest, if any, in the suit was limited to that of a lienholder on the judgment. Defendant's counsel then was allowed to opine concerning the content of Kansas law. He told the jury that "[i]t's the Cigna Insurance Company who has come in here who is going to be responsible for this six million two hundred thousand dollars in the future ... who by law is required under Kansas Workmen's Compensation law to pay Mr. Moses, to pay his medical bills and to pay him compensation...." Finally, counsel specifically invite the jury to "put a zero" in the damages interrogatory for economic loss because the "Cigna Insurance Company has that loss and they should pay it ... because that's their obligation as a workmen's compensation insurer." He made several other statements of a like nature to the jury, all without comment or admonition from the trial court.

It is familiar law that a plaintiff's collateral sources of compensation cannot be inquired into as part of a defendant's case, because of the danger that the jury may be inclined to find no liability, or to reduce a damage award, when it learns that plaintiff's loss is entirely or partially covered. See Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 36-37, 84 S.Ct. 1, 2-3, 11 L.Ed.2d 4 (1963) (per curiam); Eichel v. New York Central R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed.2d 307 (1963) (per curiam). We have held, however, for obvious reasons, that once a plaintiff asserts that he does not have coverage, then the defense may show that he does. See, e.g., Lange v. Missouri Pacific R. Co., 703 F.2d 322 (1983). We have also held that if a plaintiff is claiming emotional injury on account of financial stress following an accident, then defendant may inquire into collateral sources since these, if there are any, would tend to reduce the plaintiff's stress. Cowens v. Siemens-Elema AB, 837 F.2d 817 (8th Cir.1988). In these limited kinds of situations, where plaintiff's case itself has made the existence of collateral sources of probative value, we have allowed proof of them.

Defendant's counsel urges us to hold that plaintiff's own evidence "opened the door" to his examination of Mr. Starkey. We are not at all prepared to say that plaintiff's inadvertent admission of the matter of his insurance coverage gave defendant an unbounded carte blanche to cross-examine Mr. Starkey on the matter of collateral sources. Indeed, we have alluded approvingly to cases that hold that such is emphatically not the case. See Hannah v. Haskins, 612 F.2d 373 (8th Cir.1980). Defense counsel's cross-examination went well beyond the predicate that he maintained would support it, namely, the witness's possible self-interest.

What we are prepared to say, in any event, is that plaintiff's evidence certainly did not "open the door" to improper appeals to the jury's prejudice against insurance companies or to invitations, implicit or otherwise, not to find the defendant liable because plaintiff would be fully compensated for his loss by insurance. We believe that this is precisely what defendant's counsel did in closing argument, and the impropriety of doing so is underscored by the fact that his statement that all of plaintiff's claimed economic losses would be covered by workers compensation finds no basis in the evidence, nor does defendant cite us to any Kansas law, statutory or otherwise, that would require that result. It would perhaps, in a proper case, be open to a defendant to argue that sympathy for the plaintiff should not move a jury to find liability, since plaintiff's losses would be compensated, but that is not our case, both because defendant's appeal was not a limited one and because the extent of the coverage was unknown. Under the circumstances, we think that it was error for the trial court not to sustain plaintiff's objection and caution the jury about misusing evidence of collateral sources.

We are nevertheless mindful that to constitute reversible error improper statements made in argument must be plainly unwarranted as well as clearly injurious, and the burden of making a "concrete showing of prejudice," resulting from improper closing argument falls upon appellant. E.g., Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995); City of Malden v. Union Elec. Co., 887 F.2d 157, 164 (8th Cir.1989); Vanskike v. Union Pacific R.R., 725 F.2d 1146, 1149 (8th Cir.1984). Here, Mr. Moses makes no argument regarding prejudice other than pointing to the fact that he lost. We shall, nonetheless, undertake to review the record to determine whether plaintiff's case was so clearly prejudiced by improper argument that a new trial is necessary. See Scott v. James, 902 F.2d 672, 674 (8th Cir.), cert. denied, 498 U.S. 873, 111 S.Ct. 198, 112 L.Ed.2d 160 (1990); City of Malden, 887 F.2d at 164; Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987).

Much of the evidence purporting to prove Union Pacific's negligence had to do with whether one of its workers had misused and thereby had weakened the pull plate on the railcar in question shortly before the accident. The evidence linking this employee's unsafe practices to the defective pull plate of the hopper in question, however, was quite speculative. Evidence regarding the breach of warranty claim, moreover, was similarly insubstantial, and suggested that Mid-South did not rely on Union Pacific's skill or judgment to select or furnish a suitable railcar. The evidence furthermore showed that Mr. Moses was himself significantly negligent. For example, he was standing too close to the hopper while the winch was in use; the winch was at an unsafe angle to the hopper; and the pull plate was already bent and thus featured an open and obvious condition suggesting that it was...