Christinе J. NANNINGA, individually, and on behalf of Larry L. Nanninga and Scott M. Nanninga, and as personal representative of the estate of Bruce E. Nanninga, deceased; Larry L. Nanninga; Scott M. Nanninga, Plaintiffs-Appellants, v. THREE RIVERS ELECTRIC COOPERATIVE, a Missouri Corporation, Defendant-Appellee.
No. 98-4040
United States Court of Appeals, Eighth Circuit.
Dec. 19, 2000
Re-submitted: Nov. 1, 2000
236 F.3d 902
Viewing all of the circumstances in the light cast by Canon 3c (1) or
No cases have been found in which a judge has been asked to recuse himself or herself based on a similar factual scenario. Research has produced only one analogous situation in the Eighth Circuit. In Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir.1985), this court upheld a district court judge‘s decision not to recuse himself where “Judge Woods’ former law firm, during the time he was associated with the firm, represented parties that sought to intervene in and eventually participated as amicus curiae in [related] litigation.” The court noted that “[n]o circumstances have been brought to our attention that would cause a reasonable person to question Judge Woods’ ability to impartially decide [plaintiff‘s] case.” Id.1 Likewise, the circumstances of this matter are such that no reasonable рerson could or would question my impartiality. The facts of Veneklase are far too attenuated from my former law firm‘s previous representation of Bovard and the clinic to raise legitimate concerns about it.
My participation in this en banc matter will continue. I will decide the matter based solely and strictly upon my understanding of the governing law as applied to the facts of this case. Appellees’ recusal motion is denied.
*
Defendant filed a petition for rehearing and suggestion for rehearing en banc this panel‘s previous opinion. On April 4, 2000, the Court ordered that the petition be held in abeyance until the Supreme Court of Missouri ruled upon the aрpeal in Lopez v. Three Rivers Electric Cooperative, Inc., a case arising out of the same accident at issue here. The Missouri Court subsequently issued its ruling on August 29, 2000, clarifying the applicable standard of care, and on October 30, 2000, we granted the petition for rehearing by the panel, vacating the opinion and judgment filed on February 8, 2000.
David P. Madden, Overland Park, KS, argued, (Kely A. Feyh and James J. Virtel, on the brief), for appellee.
Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
On July 31, 1994, plaintiffs’ decedent Bruce Nanninga, a flight engineer, was killed along with three other crew members when their CH-47 military helicopter struck a set of defendant‘s power lines strung approximately 100 feet over the Osage River in central Missouri. Nanninga drowned as a result of the accident, and his widow and children filed a wrongful death diversity action in the United States District Court for the Western District of Missouri. Plaintiffs filed suit in the Western Division, but the district court granted defendant‘s motion for intradistrict change of venue and transferred the action to the Central Division.
Meanwhile, the families of two of the three other crew members killed in the crash brought suit in Missouri state court. On May 7, 1998, after discounting for comparative fault on the part of the decedents, a jury awarded those plaintiffs $2,750,000 and $2,500,000, respectively.
On August 11, 1998, the jury in this action returned a verdict for defendant. The district court denied plaintiffs’ motions for judgment as a matter of law and for a new trial and entered judgment for defendant. Plaintiffs’ appeal raises the following issues: (1) whether the state court jury‘s finding of liability should collaterally estop defendant from contesting its liability in this case; (2) whether the district court correctly instructed the jury that defendant owed plaintiffs’ decedent a duty of ordinary cаre (3) whether the trial court erred in denying plaintiffs’ motion for a change of venue; (4) whether the trial court erred in restricting plaintiffs’ voir dire; (5) whether the trial court erred in delaying its ruling on the issue of comparative fault; (6) whether the trial court erred in permitting evidence and argument relating to the decedents’ violation of military regulаtions; (7) whether the trial court erred in permitting evidence that the United States Army paid for the replacement of the power lines; (8) whether the trial court erred in allowing testimony via affidavit; (9) whether the trial court erred in adequately instructed the jury concerning media publicity; and (10) whether the verdict was against the weight of the evidеnce.2 We affirm.
A. The Applicable Standard of Care
Plaintiffs contend that, under Missouri law, defendant owed a duty of the highest degree of care because defendant is supplier of electricity. We review the district court‘s determination of state law de novo, see Salve Regina College v. Russell, 499 U.S. 225, 231 (1991); First Bank v. Hogge, 161 F.3d 506, 510 (8th Cir.1998), and we are bound by the highest state court‘s pronouncement of state law, see B.B. v. Continental Ins. Co., 8 F.3d 1288, 1291 (8th Cir.1993).
As noted above, in the parallel state court case, the Missouri Supreme Court determined that ordinary care is the correct standard of care in the circumstances of this case. See Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 158 (Mo.2000). We therefore affirm the trial court‘s instruction on the standard of care.
B. Collateral Estoppel
In their motion for judgment as a matter of law and again in their motion to renew request for judgment as a matter of law, plaintiffs argued that defendant should be collaterally estopped from contesting its liability because the state court jury found defendant liable. The district court declined to apply collateral estoppel because the state court applied a different
The application of collateral estoppel in diversity cases is determinеd according to state law. See Jaramillo v. Burkhart, 999 F.2d 1241, 1243 (8th Cir.1993). In Missouri, trial courts have broad discretion in permitting the offensive use of collateral estoppel. See State v. Daniels, 789 S.W.2d 243, 245 (Mo.Ct.App.1990). Previously, we concluded that the district court did not abuse its discretion in refusing to apply collateral estoppel because the issues in the two cases were not idеntical and plaintiffs could have joined the state case. See Nanninga, 203 F.3d at 535. Because the Missouri Supreme Court has reversed the judgment of the state trial court, there is now an additional reason to affirm the district court‘s refusal to apply collateral estoppel. Before the doctrine may be applied, a finаl judgment on the merits must have been rendered involving the same claim or issue sought to be precluded. See Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo.Ct.App.1999). In Missouri, when an appellate court vacates a judgment, the lower court‘s judgment cannot be considered a final judgment on the merits for purposes of collateral estoppel. See State v. Nunley, 923 S.W.2d 911, 922 (Mo.1996). For this reason and the reasons articulated in our previous decision, therefore, we conclude that the district court did not abuse its discretion in refusing to give collateral estoppel effect to the state court judgment.
C. Change of Venue
Plaintiffs initially filed this lawsuit in the Western Division of the Western District of Missouri in Kansas City. The district court granted defendant‘s motion for intradistrict сhange of venue and the case was assigned to the Central Division in Jefferson City. The district court denied plaintiffs’ motion for a change of venue back to Kansas City. Plaintiffs argue that the jurors in Jefferson City were biased in favor of defendant because they were members of electrical cooperatives.
The district cоurt‘s denial of a motion for a change of venue is reviewed for abuse of discretion. See Shapiro v. Kauffman, 855 F.2d 620, 621 (8th Cir.1988). The party challenging the impartiality of the jurors has the burden of showing that particular jurors hold opinions that raise a presumption of partiality. See id. Plaintiffs have failed to make this showing. Other than the adverse verdict, they point tо nothing that could call the jurors’ impartiality into question. The district court did not abuse its discretion in permitting the action to remain in Jefferson City.
D. Voir Dire
Plaintiffs argue that the district court abused its discretion in limiting voir dire both in time and scope. Defendant first contends that because the plaintiffs did not object to the twenty minute time limit on voir dire, we must review that issuе for plain error. Although the record does not reflect whether plaintiffs objected to the time limit, under either standard of review the district court did not err in limiting voir dire in time or scope.
District courts have broad discretion in determining what questions will be asked during voir dire. See Ratliff v. Schiber Truck Co., 150 F.3d 949, 956 (8th Cir.1998). Plaintiffs cite specific questions that they ought to have been allowed to ask, concerning such topics as holding companies accountable, placing a monetary value on human life, and media coverage of an unrelated military plane crash in Italy. While the district court denied some of plaintiffs’ questions, the court and plaintiffs’ counsel together covered the fоllowing topics: the jurors’ background, ability to serve, prior jury service, and familiarity with the case and witnesses; whether any jurors were users or members of defendant; juror familiarity with defendant‘s in-
E. Comparative Fault
On the fourth day of trial, the district court determined that it would not instruсt the jury on comparative fault. Plaintiffs argue that the district court erred in not making this determination earlier and in subsequently permitting defendant to present evidence and argument concerning the pilots’ violations of military and civilian flight rules. Plaintiffs assert that had the trial court ruled on the comparative fault issue earlier and prоperly enforced its ruling, no evidence concerning these alleged violations would have been permitted. The record does not reflect whether plaintiffs objected either to the timeliness of the ruling or the subsequent admission of evidence; regardless of the standard of review, however, the district court did not err in admitting this еvidence, because it was relevant to defendant‘s argument that its alleged negligence was not the cause of the accident. See Whisenand v. McCord, 996 S.W.2d 528, 531 (Mo.Ct.App.1999) (explaining that a defendant may introduce any evidence that tends to establish that it is not liable for negligence, including evidence that a third party caused the accident).
F. Evidence that the Army Paid to Replace Power Lines
Plaintiffs сontend that defendant violated a stipulated motion in limine to exclude testimony that the Army reimbursed defendant for the replacement of its power lines. Although the district court instructed the jury to disregard the testimony, which consisted simply of an affirmative answer to a single question, plaintiffs argue that the district court should have further rebuked defense counsel and its failure to do so prejudiced plaintiffs. The record does not show that plaintiffs requested an admonition, nor does it reflect the existence of any such stipulation, other than a reference in plaintiffs’ written motions in limine. Furthermore, the transcript indicates that defense counsel elicited this testimоny only after plaintiffs’ counsel first asked the witness about the cost of replacing the lines. While counsel‘s misconduct may in some cases be so prejudicial as to require a new trial, see Sanders-El v. Wencewicz, 987 F.2d 483, 485 (8th Cir.1993), we conclude that under these circumstances the district court‘s instructions to the jury adequately cured any prejudicial effect this testimony may have had.
G. Admission of Evidence by Affidavit
Plaintiffs contend that the district court erred in admitting seventeen affidavits into evidence. The affidavits disputed the testimony of Mike Harp, whose state court testimony was read into evidence after the district court determined that he was an unavailable witness. Absent a stipulation of the parties, affidavits may not bе treated as evidence. See Eames v. Eames, 463 S.W.2d 576, 579 (Mo.Ct.App.1971). Defendant contends that plaintiffs agreed to the admission of the affidavits in return for the court‘s ruling admitting Harp‘s former testimony. The parties indicate that the following colloquy occurred between court and counsel:
Madden: Judge, we would like to use the affidavits attached to the summary judgment, and we would also like to call one live witness on that issue.
The Court: I‘ll do it.
Cloon [plaintiffs’ counsel]: They can have that in their case.
The Court: Huh?
Cloon: You mean in their case?
The Court: Yeah.
Cloon: Okay.
The Court: Yeah.
Cloon: But I‘m just going to read, and if they want to read their cross-examination, I guess, they can do that.
Virtel: Yeah.
Cloon: But then in their case in chief.
Virtel: Yeah, right.
Cloon: Okay.
While the meaning of this dialogue is somewhat difficult to decipher, it is consistent with defendant‘s contention that plaintiffs agrеed to permit the introduction of the affidavits. Such an interpretation is further bolstered by the fact that plaintiffs did not raise this issue in their motion for a new trial. Accordingly, the district court did not err in admitting the affidavits.
H. Failure to Give Cautionary Instructions
On the second day of trial, plaintiffs’ counsel reported to the district court that on the previous night the local news aired a stоry on their case in conjunction with a report concerning an unrelated plane crash in Italy wherein the pilots were criminally prosecuted for violating military regulations. Plaintiffs assert that the district court erred in failing to inquire whether the jurors had seen the broadcast and in failing to instruct them as to the distinctions between the two сases.
Whether to give a cautionary instruction is within the discretion of the district court, see Stineman v. Fontbonne College, 664 F.2d 1082, 1087 (8th Cir.1981), and we will not disturb its rulings absent an abuse of discretion, see Lovett v. Union Pacific R.R. Co., 201 F.3d 1074, 1082 (8th Cir.2000). Here, the district court instructed the jury not to read or view any media reports concerning this case, and plaintiffs offer no evidence that the jurors were exposed to the allegedly prejudicial broadcast. Cf. Lovett, 201 F.3d at 1083 (affirming the district court‘s refusal to give cautionary instruction where the plaintiff failed to demonstrate prejudice). Moreover, plaintiffs failed to present a transcript or a videotape of the broadcast either to the district court or this Court. Instead, they rely on counsel‘s recollection of the coverage. Under these circumstances, we are unable to say that the district court abused its discretion in refusing to give a specific cautionary instruction.
I. Weight of the Evidence
Plaintiffs appeal the district court‘s denial of their motion for a new trial on the basis that the verdict was against the great weight of the evidencе. We review the district court‘s denial of a motion for a new trial under
For these reasons, the judgment of the district court is affirmed.