Wolfe v. Gilmour Mfg. Co., s. 97-3125

• Decision Date: 07 July 1998
• Docket Number: Nos. 97-3125,97-2971,s. 97-3125
• Parties: John V. WOLFE, Trustee, Appellant/Cross-Appellee, and Liberty Mutual Insurance, plaintiff, v. GILMOUR MANUFACTURING COMPANY, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1122

143 F.3d 1122

John V. WOLFE, Trustee, Appellant/Cross-Appellee and Liberty Mutual Insurance, plaintiff, v. GILMOUR MANUFACTURING COMPANY, Appellee/Cross-Appellant.

Nos. 97-3125, 97-2971.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1998.

Decided May 8, 1998.

Rehearing and Suggestion for Rehearing

En Banc Denied July 7, 1998.

George H. Moyer, Jr., Madison, NE, argued, for Appellant/Cross-Appellee.

William J. Brennan, Omaha, NE, argued (Gerald L. Friedrichsen, Omaha, NE, on the brief), for Appellee/Cross-Appellant.

Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, ¹ Circuit Judges, and NANGLE, ² District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Vicky Heller was an employee of National Farm Products, Inc., at its hog farrowing unit in Atkinson, Nebraska. In the course of her work, she used a sprayer that Gilmour manufactured to apply a disinfectant called Pantek II to farrowing crates. The bottle containing the Pantek II separated from the sprayer, permitting the chemical to come in contact with Ms. Heller and to cause related injuries. Ms. Heller filed an action in negligence and strict product liability against Gilmour Manufacturing, Inc. In the course of the litigation, Ms. Heller was replaced as the plaintiff by her trustee in bankruptcy, John Wolfe. The case was tried to a jury, resulting in a plaintiff's verdict on the negligence claim in the amount of only $1. Mr. Wolfe appealed on several grounds, and Gilmour cross-appealed. We affirm the judgment of the trial court ³ in all respects.

I.

Mr. Wolfe first complains that the trial court erred by giving an instruction to the jury regarding Ms. Heller's negligence and by failing to give a cautionary instruction regarding compensation to Ms. Heller from collateral sources such as insurance. As a preliminary matter, we note that we examine the correctness of jury instructions as a whole and not atomistically, and we will not reverse a judgment based on an alleged error in instructing a jury unless that error was prejudicial. See United States v. Whatley, 133 F.3d 601, 604-05 (8th Cir.1998).

The trial court instructed the jury that Gilmour maintained that Ms. Heller was negligent by failing to read certain directions regarding the use of Pantek II. Mr. Wolfe asserts that giving this instruction was erroneous because there was no evidence that failing to read the directions contributed to Ms. Heller's injuries. We disagree.

The directions inform the user of Pantek II to wear an impervious protective apron, and one of the contested issues at trial was what protective clothing, if any, Ms. Heller was wearing at the time of the accident. Ms. Heller testified that the Pantek II came in contact with her skin because the top two or three buttons of her raincoat were unbuttoned; there was also testimony that Ms. Heller told the doctor who treated her at the hospital following the accident that she was not wearing a raincoat at all. There was therefore evidence that Ms. Heller failed to wear an impervious protective apron, contrary to the cautionary directions provided, and that this failure led to her injuries or some part of them. We hold that the trial court did not err by instructing the jury to consider Ms. Heller's failure to read the directions in determining her negligence, because the jury could reasonably have concluded that, if she had read them, her injuries would not have occurred.

With respect to the trial court's failure to give an instruction regarding collateral sources of compensation to Ms. Heller, we note that, under Nebraska law, benefits that a plaintiff receives from a source wholly independent of and collateral to the wrongdoer do not diminish the damages otherwise recoverable from that wrongdoer. See Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 232 Neb. 763, 443 N.W.2d 872, 875 (1989). The trial court may, of course, offer a jury instruction to this effect if it believes that such an instruction is necessary. In this case, however, we find little to suggest that the court should have given such an instruction.

Mr. Wolfe suggests that the trial court should have given the instruction because one or more jurors submitted questions to the court regarding collateral payments. The record shows that the trial court considered the proposed instruction, noted some concerns about it, and then decided not to give it. The trial court is, of course, in the best position to evaluate any difficulties that might arise in the course of the trial, and to fashion jury instructions appropriate to them. See Hall v. Arthur, 141 F.3d 844, 848-49 (8th Cir.1998). Under the circumstances of this case, we do not believe that the trial court abused its discretion by deciding not to give the instruction on collateral sources of compensation.

II.

Mr. Wolfe also asserts that the trial court erred by admitting two exhibits into evidence during the testimony of Sue Dorn, the farrowing manager who was supervising Ms. Heller on the day of the accident. Exhibit 136 was a report that included a statement that Ms. Dorn gave on the day after the accident regarding Ms. Heller's actions immediately following the accident, and exhibit 139 was a later statement that Ms. Dorn gave regarding Ms. Heller's actions immediately following the accident. Both exhibits were used to impeach Ms. Dorn by showing that her prior statements were inconsistent.

On direct examination, Mr. Wolfe used a portion of exhibit 139 to refresh Ms. Dorn's memory about the accident, and on cross-examination, Ms. Dorn was questioned extensively concerning both statements. On redirect examination, Ms. Dorn admitted that she gave four different statements, all of them inconsistent with each other. Following this testimony, Gilmour offered the contested exhibits into evidence, and Mr. Wolfe objected on the grounds that both statements were hearsay. The trial court admitted them, since they had already been described to the jury anyway, concluding that they would aid the jury in determining in what way and to what extent Ms. Dorn's prior statements were inconsistent with her testimony. We are unable to see how these statements could fail to be admissible under Fed.R.Evid. 402 on the question of whether Ms. Dorn made prior inconsistent statements as to material matters.

Even if the trial court erred by admitting these exhibits and then failing to instruct the jury that they were not evidence of the matters asserted in them, the error is harmless because the contents were cumulative of other evidence already properly admitted. See, e.g., Gee v. Groose, 110 F.3d 1346, 1350 (8th Cir.1997); see also 28 U.S.C. § 2111. Mr. Wolfe contends that the exhibits provided the only evidence of Ms. Heller's failure to mitigate damages immediately following the accident. Yet the record shows other evidence of Ms. Heller's failure to mitigate damages, including Ms. Heller's own medical records and Ms. Dorn's deposition testimony read at trial. We believe that the information provided by exhibits 136 and 139 was cumulative, and therefore that their admission without a limiting instruction was harmless error at worst.

III.

Mr. Wolfe contends that a general verdict of $1 is inconsistent with the jury's specific interrogatories finding, first, that Gilmour was liable for the accident and, second, that Ms....