Gregory P. WARGER, Plaintiff-Appellant v. Randy D. SHAUERS, Defendant-Appellee.
No. 12-1846.
United States Court of Appeals, Eighth Circuit.
Submitted: March 12, 2013. Filed: July 24, 2013.
721 F.3d 606
Steven C. Beardsley, Travis B. Jones, on the brief, Rapid City, SD, for Appellant.
Ronald R. Kappelman, argued Rapid City, SD, for Appellee.
Cassidy M. Stalley, Gregory G. Strommen, on the brief, Rapid City, SD, for Appellee.
Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
BYE, Circuit Judge.
Gregory Warger sued Randy Shauers to recover for injuries he sustained during a traffic accident. After а mistrial, the jury returned a verdict for Shauers. Warger subsequently moved for judgment as a matter of law, or, in the alternative, for a new trial. The district court1 denied his motion. On appeal, Warger contends the district court (1) erred by not granting a second mistrial after Shauers‘s counsel violated an in limine order, (2) should have granted him judgment as a matter of law because there was insufficient evidence to support the jury‘s verdict, and (3) improperly barred expert witnesses from opining on statutes governing the rules of the road. We affirm.
I
On August 4, 2006, Randy Shauers and Gregory Warger were involved in a traffic aсcident in Pennington County, South Dakota. Shauers‘s truck, which was pulling a camper trailer, clipped Warger‘s motorcycle. Warger suffered serious injuries, including the amputation of his left leg. He filed suit against Shauers, asserting a claim of negligence and seeking to recover for propеrty damage, loss of enjoyment of life, permanent disability, present and future medical expenses, and prejudgment interest.
A jury trial commenced on July 20, 2010, resulting in a mistrial after Shauers‘s attorney violated the district court‘s in limine order instructing “that experts may offer opinion testimony as to a driver‘s сonduct but may not offer legal opinions as to whether such conduct violates South Dakota law.” Appellant‘s Add. 35. During a second trial, on cross-examination of an expert witness, Shauers‘s attorney again violated the order by asking whether “Mr. Warger ha[d] to yield to the right-of-way and not enter ... until he [was] certain that the highway [was] free of oncoming traffic....” Id. at 38. Warger‘s counsel objected and asked for a recess. The court excused the jury and held a brief hearing, during which Warger moved for a mistrial. The court acknowledged the violation, but denied the motion for mistrial because it found the violation had not been prejudicial. After the recess, the court instructed the jury to disregard the question. The trial continued without any further violations of the in limine order, and
After the jury was released from further jury duty, one of the jurors contacted Warger‘s lawyer and expressed his concern as to the jury foreperson having behaved inappropriately during deliberations. Specifically, the juror alleged the foreperson had focused on her own daughter‘s past experience with a serious traffic accident, rather than the evidence presеnted at trial. In an affidavit, the juror contended that during deliberations the foreperson stated her daughter‘s life would have been ruined had her daughter been held liable for damages caused by the accident. The affidavit further alleged the foreperson expressed she was unwilling to return а verdict for Warger because the Shauers were a young couple and their lives would also be ruined should they be found liable. Further, it stated other jurors had been persuaded by her expressions of sympathy and thus decided to return a verdict for Shauers. Warger subsequently filed a motion for judgment аs a matter of law, or, in the alternative, for a new trial. The district court refused to consider the juror‘s affidavit and denied the motion. Warger filed a timely appeal.
II
A. Violation of the In Limine Order
On appeal, Warger argues the district court should have declared a mistrial because the second violation of the in limine order was prejudicial. This Court will not disturb a trial court‘s denial of a motion for mistrial “absent a clear showing of abuse of discretion.” Pullman v. Land O‘Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001). “A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is сlear.” Black v. Shultz, 530 F.3d 702, 706 (8th Cir. 2008). Such violation must constitute prejudicial error or result in an unfair trial. Id. “Prejudicial error is error which in all probability produced some effect on the jury‘s verdict and is harmful to the substantial rights of the party assigning it.” Id. (quoting Pullman, 262 F.3d at 762).
It is undisputed the district court‘s in limine order was specific in its prohibition and the violation was clear. The issue raised on appeal is whether the violation was prejudicial. We agree with the district court, it was not. The court gave a curative instruction after the recess and, during final jury instructions, reminded the jury that if an objection is sustained they “must ignore the question and must not try to guess what the answer might have been.” Appellant‘s App. 79. We have previously upheld district courts’ refusals to grant mistrials for violations of in limine orders when, inter alia, the court gives “a prompt and clear curative instruction.” Russell v. Whirlpool Corp., 702 F.3d 450, 460 (8th Cir. 2012).
Warger argues the curative instruction was insufficient because it was not givеn until the jury had returned from the recess. Although it is true the instruction was not given until after the recess, Warger provides no persuasive explanation as to how Shauers‘s question affected the jury‘s verdict. He claims the question was prejudicial because it was an attempt to introduce inadmissiblе evidence which was key to Shauers‘s defense. However, the jury heard no inadmissible testimony because the district court sustained the objection and Shauers‘s counsel did not ask any similar questions during the remainder of the trial. Accordingly, we cannot say the district court abused its discretion in denying a nеw trial.
Warger next argues the district court erred when it denied his motion for judgment as a matter of law or for a new trial. First, he contends there was insufficient evidence to support the jury‘s verdict. Second, he argues the verdict was against the weight of the evidence because it was tainted by jurоr misconduct. “We review de novo the district court‘s denial of a motion for judgment as a matter of law, using the same standards as the district court.” Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d 991, 995 (8th Cir. 2010). We will not grant such a motion unless no reasonable jury could have returned a verdict in favor of the non-moving party.
First, we address Warger‘s contention as to the evidence presented at trial being insufficient to sustain the verdict. Supporting such argument, Warger points to inconsistencies in Shauers‘s testimony and an expert witness‘s model recreating the accident. The district court devoted eight pages to addressing Warger‘s insufficiency argument. We find such detailed reasoning as being correct. The collision occurred in a matter of seconds, it was observed by few witnesses, and both parties presented conflicting expert testimony. Although Warger‘s verison of the accident may have been plausible, the jury also heard significant evidence in favor of Shauers. Reasonable jurors could have disagreed on which version was correct. Ultimately, in the face of conflicting evidence, the jury sided with Shauers; our court is not permitted to second-guess such collective judgment. The district court prоperly allowed the jury‘s verdict to stand.
We turn next to Warger‘s argument that the verdict was tainted by juror misconduct.
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury‘s deliberations; the effect of anything on that juror‘s or another juror‘s vote; or any juror‘s mental processes concerning the verdict or indictment. The court may not receive a juror‘s affidavit or evidence of a juror‘s statement on these matters.
We have defined “extraneous informаtion” to include “matters consid-
In the alternative, Warger argues
The Ninth Circuit has held that statements by jurors regarding dishonesty during voir dire may be admitted into evidence for the purpose of challenging a verdict. See United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (holding “evidence of juror‘s alleged racial bias is indisputably admissible for the purposes of determining whether the juror‘s responses were truthful“); Hard v. Burlington N. R.R., 812 F.2d 482, 485 (9th Cir. 1987) (“Statements which tend to show deceit during voir dire are not barred by [
The Third and Tenth Circuits have reasoned differently. Then-Judge Alito, writing for the Third Circuit, held trial courts may exclude such evidence:
[T]he
Federal Rules of Evidence categorically bar juror testimony ‘as to any matter or statement occurring during the course of jury‘s deliberations’even if the testimony is not offered to explore the jury‘s decision-making process in reaching the verdict ... We hold ... that the exclusion of such testimony is not irrational and does not contravene or represent an unreasonable apрlication of clearly established federal law.
Williams v. Price, 343 F.3d 223, 235-37 (3d Cir. 2003) (quoting
[I]f the purpose of the post-verdict proceeding were to charge the jury foreman or the other juror with contempt of court, Rule 606(b) would not apply. However, it doеs not follow that juror testimony that shows a failure to answer honestly during voir dire can be used to overturn the verdict ... The Third Circuit‘s approach best comports with Rule 606(b), and we follow it here.
Benally, 546 F.3d at 1235-36 (citations omitted). We also find the Third Circuit‘s reasoning persuasive. “[A]llowing juror testimony through the backdoor of a voir dire challenge risks swallowing the rule. A broad question during voir dire could then justify the admission of any number of jury statements that would now be recharacterized as challenges to voir dire rather than challenges to the verdict.” Id. at 1236.
Congress, when drafting
C. Validity of the In Limine Order
Finally, Warger argues the district court erred by not allowing his accident reconstruction expert to testify whether either of the drivers’ conduct violated South Dakota law. “We review a district court‘s decision concerning the admission of expert testimony for an abuse of discretion.” Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006) (citing Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996)). The district court excluded such testimony because it would have been based on a traffic officer‘s report it had found inadmissible. Of course, expert testimony need not always be based on admissible facts or data.
III
For the foregoing reasons, the judgment of the district court is affirmed.