*2 BEAM, Before ARNOLD and Circuit HENLEY, Judges, and Senior Circuit Judge.
BEAM, Judge. Circuit Corporation appeals $2,000,000, en- favor of Todd Gander for 13, 1988, following July tered on recovery for trial. Gander’s theories of personal injuries sounded in both strict lia- negligence, and the bility in tort and in favor of on both claims. found Gander compara- also assessed Gander’s fault on the claim at tive 90%. appeal, FMC On confusing and form was misstated right useless swelling. Gander’s prevent have al- should district court minor problems with him wit- arm causes Gander’s to cross-examine lowed FMC buttoning top of his shirt or things, income tax as- like the effects nesses about laces; testified that lost income. While his shoe Gander tying on Gander’s sessments *3 the ver- about him to be frustrated problems reservations these cause we have some form, Moreover, attempts at affirm. voca- and irritable. dict unsuccessful, and tional rehabilitation I. BACKGROUND discharged from Anheuser- was Gander 31, August 1987. He now does Busch on the on right arm at elbow lost his Gander hospital. a local work some volunteer at working for An- February while inju- testimony indicated that the The trial Gander worked in St. Louis. heuser-Busch changed life. ry enormously Gander’s $34,- has operator, and made conveyor as a coal At the time in 1984. plus benefits indicated, jury case tried to a As the was con- average pay for coal the trial in liability and products strict on theories of $47,891 plus benefits. veyor operators was single verdict form sub- negligence. The to operator, jury Gander’s reference conveyor coal mitted to the contained As a required coal from I on shepherding theories. Part verdict entailed both work where liability required the boilers Part II entry plant into the to the strict energy. The comparative electrical fault of converted to the was the to assess transported the coal conveyor belts which in the event plaintiff and the defendant of their to one side ride frequently that it found for of coal dust accu- required drums as result to drive Part III gence claim. convey- When mulating on the drums. found for total assess side, it would often to one theories, or rode belt Gander’s on both assessed Gander wall, spills. causing coal climb 90%, total to be and found $2,000,000. was work- February Gander On which had pulley drum ing near a head dismissed, was After coal, was and which clogged with
become about expressed doubt spill. major coal responsible partly for $2,000,000 for verdict was whether to clean the drum taught had Gander been $2,000,000 $200,000; i.e., total dam- brush, shutting off without a fox tail to fault assessed by the ages reduced 90% to proceeded system. thus Gander initially entered The district Gander. brush, tail but fox clean the drum with the $200,000. mo- On Gander’s judgment for brush, caught the fox tail rolling drum however, the judgment, tion to amend the device into pulling forearm Gander’s to was entitled that Gander court decided rolling go. let able before he was claim, ground, off literally lifted Gander drum by reduced Gander’s not be which could at the elbow when severed and his arm was law. Missouri fault under comparative guard. a shear into contact with it came followed. appeal This Barnes took Gander Fellow workers reattached. his Hospital where arm II. DISCUSSION success- surgery was Although Gander’s The Verdict Form A. right still has his extent that he ful to the the district appeal that argues on arm, that the arm testified at he trial submitting court erred both like an orna- just “It’s essentially useless. form, on, Trial Gander’s good.” hanging ment it’s amending inaccurate, confusing and 122. He has Transcript, vol. close- arguments are judgment. While and must shoulder limited movement his ultimately turn on ly related and both straight. It keep wrist his wear brace correctly stated form the verdict no whether limply. has flops Gander otherwise sepa- arguments law, we treat the finger- Missouri lost his fingers, has feeling his rately. nails, glove on his hand must wear by
The verdict form was submitted Gan strict which could not be der, Ap from the comparative and was taken Missouri reduced fault. Gander’s proved MAI Jury Instructions. 35.15 illus replied: Id. at 272. The district court “Not (the (3d Supp.1989) tration ed. form is indi on the note Af- based three.” Id. A, note, cated and is taken from MAI as Verdict quoting ter the court continued: 37.07). ap 36.01 and The form used is directing me “This is to reduce that illustration, by proved, at least as an percent.” Id. at 274. The district court for the Court submission $200,000. then entered of both strict amend, Upon Gander’s motion to how- claims, at the time and was new of trial. ever, the district court decided that it had *4 Appellant Brief at 9. It contains three for improperly damages by reduced the total parts,1 dealing the first with the strict lia percentage comparative the fault as- claim, bility comparative the second with sessed to Gander. “Inasmuch as this is a claim, negligence fault on the and the third comparative negligence prin- case in which difficulty with total the dis ciples apply only jury’s determina- had, arguable the trict court error negligence tion on the claim and not to the form, note, closing the stems from the jury’s strict findings the as explains damages which the reduction in reflected on the plain- verdict form entitle plaintiffs comparative neg for fault on the tiff ato in the amount of Two ligence claim. ($2,000,000).” Million Dollars Memoran- you percentage NOTE: If assessed a Order, 87-1155C(6), 13, dum and July No. any plaintiffs fault defendant on 1988, at 2. personal injury claim for based on gence, judge the will reduce the total To the extent that FMC plaintiffs damages by any amount of amending district court erred in percentage you plain- of fault assess to judgment, disagree. we “The decision to tiff. grant deny a Rule 59 motion is commit dismissed, After the had been ted to the sound discretion of the trial appeared that the verdict remarked to be court.” A.W. v. Northwest R-1 School $200,000; i.e., $2,000,000 damages Dist., (8th Cir.), total re- 813 F.2d 165 cert. denied, duced fault assessed to Gander. 484 90% U.S. 108 S.Ct. 98 Transcript, (1987); Trial vol. Corp., Gander L.Ed.2d 100 v. Slater KFC argued $2,000,000, (8th 1980). that the verdict was for Cir. Under since the found for Gander on the apply Missouri are bound to we 1. as follows: Beginning you those listed greater personal injury NOTE: personal injury claim of the claim of the blanks as found in favor of of fault to of such next to that name. NOTE: your Corporation, liability against defendant FMC/Link-Belt On the claim of assess a verdict. than 100%. Complete Complete percentages plaintiff with Part below, we, negligence required by your percentage of those listed based on the based on PART II this form as plaintiff plaintiff write in a If Otherwise, I, personal injury must be jury, you following by filling the verdict form reads whether or not of fault to assess a product find in favor of: Todd Gander for on his claim for below, theory 100%. percentage write in “zero" verdict on the required by percentage defect. based on the total of strict any you If you will reduce the total We, personal injury part of tiff's you based on defendant on NOTE: If injury NOTE: sonal damages by any percentage On the claim of centages any plaintiff. find in favor of assessed damages disregarding any [******] based on defendant on plaintiff Complete jury, of fault as follows: negligence, you based on find the total amount of assessed a based on percentage negligence. plaintiff PART III be_- plaintiff plaintiffs we, following paragraph amount of negligence, product claim for percentage of fault of fault on his claim for jury, personal claim for fault on the defect or if assess you plaintiff's personal of fault injury assess per- per- any if Gander, ease, assessed to percentage v. Pac diversity see Walker Inc., though Cir. it in Gander’s car, F.2d found favor Hence, 1986), court was correct FMC ar- the district is amending judgment. jury probably Missouri law intended gues, that Gan- resting $200,000, on a strict liabil that verdict and thus as- clear der receive by plaintiffs reduced ity claim cannot be damages total sessed because Lippard Houd comparative fault. thought total would be Indus., (Mo.1986), 715 S.W.2d must, therefore, aille con- reduced We 90%. “the Supreme Court held that legally form sider whether contributory is not at plaintiffs negligence misleading. unduly incorrect or products liability in a case.” Id. issue question, close do While is a explained think that the verdict form misstates pro neither should agreed argu Missouri law. FMC oral recovery on a plaintiffs nor hibit reduce difficulty form ment claim. “We adhere to strict note, which, closing from the as indi stems prod of ‘defective that distributors view cated, reduction, require can be read to pay unreasonably dangerous’ should ucts *5 plaintiff’s comparative on fault on based prod damages by caused the injuries claim, negligence liability in the the strict ucts, a without reduction because Although open the note leaves this guilty degree of a of care may have been not, possibility, it as the district court does As counsel lessness.” Id. at 494. defense initially thought, it. require Because of its argument, judgment the admitted oral location, grammatical and the structure $200,000 theory liability strict under the misleading. note is somewhat The note Mis clearly as matter of was incorrect can be read indicate connection be Therefore, we find no abuse souri law. contributory finding tween a by district court. discretion the negligence and a reduction in the claim not, does end the matter. This jury per the assesses a total If argument in terms is better stated FMC’s defendant, any centage of fault to then is, ” That of the verdict form’s correctness. judge damages total ac “the will reduce prop- the fact the amended that damages The cordingly. reduction thus erly law not mean reflected Missouri does fault, by jury assessing can be caused the the form itself did not misstate that verdict finding on the lia regardless any strict unduly jury. the Missouri law or confuse possible bility this is a read claim. While Thus, the incor- FMC that form was note, required reading. ing not a of the it is or, law, alterna- rect as matter of the However, the note is as matter tive, confusing the in- that was so that incorrect; simply unclear. Given is not may, jury jury of the is unclear. The tent that clear the that Missouri law is indeed, closing by misled the have been negligence princi- apply comparative cannot (as note, by read first read which could be the strict the strict ples to court) apply comparative the district fact, will, by unaffected liability claim be as as fault to strict claim well assessed to percentage of fault face, claim. On to the The negligence claim. note does tiff specifically is not limited to the note otherwise, legal- thus is not require and not specifically gence claim. Nor does note It not misstate Missouri incorrect. does ly apply to claim. Because law. jury, according ambiguity, the of this is, however, at FMC, The verdict form may led to have been conclude confusing to jury.2 by any potentially damages total would be reduced least substantially by simply Although clarified form is form could eliminating we hold that verdict note, correct, concluding technically set aside we cannot case, problem agreed jury at oral is main verdict in this recommend MAI form. 37.03 as written in the district with the MAI the form not be used the federal clearly correctly presently instructs illustration courts of circuit as written. 35.15 this must, therefore, damages to such sum consider whether the amount of his We form, him together fairly justly compensate with the instructions taken as will misleading confusing jury, so any damages you believe he sus- cannot stand. In de jury reasonably and is certain to sus- tained termining the verdict form is con whether tain in the future as a direct result of fusing, light it in of the we must consider in the evidence. occurrence mentioned given. instructions See United States Moreover, specifically in- (10th Cir.), Hines, F.2d cert. structed, through instruction number denied, 104 S.Ct. 467 U.S. damages re- that it should calculate total (1984). enough It is if the L.Ed.2d 831 gardless plaintiff’s fault. “In determin- govern “charge as a whole ... state[s] ing plaintiff’s damages, the total amount of imperfections or a fairly; law technical you damages by any not reduce such must clarity will not render the lack of absolute percentage you may of fault assess to erroneous.” Toro Co. v. R & instructions plaintiff.” Instruction number see also R Products (3d Thus, Supp.). MAI 37.03 ed. 1989 Cir.1986). We find that was cor correctly district court instructed the adequately instructed Mis rectly and that its function was to determine therefore, law, and, that the verdict souri plaintiff’s recovery, amount of but to deter- form, clearly wrong, also is not so mine the amount of total dam- confusing that verdict must be ages. Any efforts to calculate upset. damages plaintiff’s recovery in terms of important inquiry is whether the contrary would be to the court’s instruc- properly instructed tions. *6 regardless any calculated of were to be jury properly Not was the instruct plaintiff on the fault assessed to calculating damages, ed on its role in but Initially, we note that the verdict properly the district court also instructed and correct on this form itself is clear jury comparative principles fault III, jury In matter. Part finds apply In do not to strict claims. “We, damages, total the form states: provided struction that: “The number plaintiffs jury, find the total amount of compute any recovery plain will damages disregarding any on the n part be_” personal (emphasis claim based on plaintiff tiffs for of by reducing you the amount added). comparative negligence This instruction that plaintiff’s damages by any calculating find as total fault is not to be considered any percentage you plaintiff.” than of fault assess to damages total is much clearer concluding MAI inference from the note that Instruction number see also 35.15 might damages (3d Supp.1989) (emphasis jury lead the to inflate total illustration ed. plaintiff’s added).3 Thus, anticipation may of a reduction while the verdict form comparative negligence claim. concluding fault on the be unclear about whether its provided claim, 18 further applies Instruction number note to the strict that, jury if the found in favor of Gander quite jury instructions were clear that the claim, or a on the strict assessed finding comparative fault does not so negli- percentage of fault to FMC on whole, apply. As a the instructions cor gence then rectly specifically jury instructed the ambiguities may the form have disregarding fault on the of about explicit plaintiff, you must determine the total created. Given this correct and given jury on the matters which the conclud- and from the instruction at trial. MAI same is, ing attempts note to cover. The note there- alternate 37.03 does not discuss theories of lia- fore, unnecessary. to be If a note is deemed bility jury, specific and thus the submitted required, versions that clari- several alternative negli- to Gander's claim based on reference fy readily problem come to mind. above, gence, emphasized in the text varies from MAI 37.03. 37.03, 3. MAI from which the illustration is drawn, materially differs from illustration Cir.1987) (“Whether or not the instruction, speculation mere it is charge of the court jury misunderstood the damages at total jury calculated after the plaintiffs question to be reexamined reduction for is not anticipation of a rendered.”) (citation negligence claim. omit- verdict has been comparative fault on ted). Moreover, that a speculation mere in the holding finds as well Our may have been based
jury verdict
which,
on Federal Rule of Evi-
cases
based
law,
misunderstanding
jury’s own
606(b),
improper impeachment
dence
instructed,
in
forbid
is an
though properly
im-
improper
jury
of a
verdict. While
upset
jury
basis on which
sufficient
case,
Rule
peachment occurred
jury’s
that a
is well settled
verdict. “It
606(b)
have been
misappre
establishes that would
misunderstanding
testimony,
they
computation
improper
inquire
jurors
of the
what
errors in
hension of
computation,
unsound
In Karl v.
really
methods of
intended
their verdict.
improper
improper
motives can
reasoning or other
R.
therefore, did not intend to award logical problems. When Gander first con- $2,000,000. Scogin v. damages of See also psychiatrist, severely tacted the he was Fitness, Inc., 780 F.2d Century suicidal, depressed hospi- and had to and Cir.1985); Peveto, F.2d at 489. psy- talized for treatment. Id. at 75. The monthly, chiatrist still sees Gander and tes- persuasive Finally, we find symptoms tified that his are a constant damages in this case is the evidence of state of flux. Id. at 80. While Gander is jury’s calculation sufficient to suicidal, body longer the scars on his $2,000,000. The uncontra damages grafts, from skin nerve and vein trans- wages, past and figures dicted for lost plants, harvesting and muscle are devastat- future, expert provided by plaintiff’s wit self-image. to Gander’s Id. at 77. ness, Viscusi, damages in excess establish easily is also frustrated and irrita- Gander $2,000,000. testified that at the Viscusi ble, insomnia, suffers from decreased (all wage contract for an oiler Anheuser wife, intimacy feelings interest in with his more), actually paid Busch oilers were Gan hopelessness worthlessness, and wages twenty the next seven der’s lost generally poor has a outlook for the future. $1,395,711. years Trial Tran would be Moreover, psychiatrist Id. at 90. testi- Gander’s sub script, vol. at 316. Given that, alone, psychology fied on the basis of earnings growth stantial 15% work, Gander should not return to where accident, years prior to the id. at four likely perhaps he would be frustrated and figure “ludicrous.” Id. Viscusi called this disposed again think suicide. Id. Rather, wages lost Gander’s psychiatrist 84. The testified that Gan- accurately by considering reflected more long range poor. der’s outlook is Id. oiler, average wages for the and would be $1,693,000. closer to Id. at 318. Viscusi Thus, given sup- the substantial evidence gave wage also lost scenarios which calcu jury’s porting calculation of wage growth lated Gander’s at better than $2,000,000, the correct instruction of the interest, gave figures rang the rate of speculation and mere $2,217,761. ing from Id. at may have intended to award Gander fig 320-22. used these Gander’s counsel $200,000, we cannot set aside the ver- ures, losses, together past wage medi ground that dict on the the verdict form suffering, argue pain cal bills and was unclear. *8 3, $3,000,000 in Id. vol. 234-35.4 B. Income Taxes figures argues at all
Nor were these excessive FMC next that district court physi- light injury. permitting of Gander’s Gander’s erred cross-examination right cian testified that arm is of witnesses about the effect of Gander’s Gander’s useless; that he has no almost use his income taxes on Gander’s lost income. develop fingers, frequently attempted which swell and FMC first to cross-examine Vis- ulcers; cusi, permanent, burning that he has the economist who testified about thumb, pain wages. in his index and middle fin- Gander’s lost FMC asked Viscusi numb; gers, figures using he which are otherwise whether the he was splint gross his wrist and terms income. then must wear a to Counsel actually glove keep swelling get to down the in his asked whether Gander would hand; dollars, subject gross object- to which that his arm is and those Gander 1, swelling in slowly; Transcript, heals that the his arm ed. Trial vol. at 340-41. At $3,000,000 figure. transcript 4. While counsel said at oral that Gan- contains 3, damages, Transcript, der the trial Trial vol. at 234-35. asked for
1381
bench,
linked to the issue of
said that under Missouri
whether the total
Gander
law,
inappro-
subject
income tax assessments were
award was
to income taxation.
Id.
cross-examination,
priate subjects for
and
3,
objected
vol.
at 214-15. Gander
any contrary holdings from FELA
agreed,
pre
instruction and the court
thus
apply
diversity
case.
cases could not
cluding
arguing
taxability
FMC from
suggested
Id. at 342. FMC
that it should
jury.
the award to the
Id. at 215.6 It is
economist,
to cross-examine the
but
be able
objections
somewhat unclear from the
by the
whether the law
when asked
ap
at trial
discussions
whether FMC
was clear that such cross-examination was peals from the
rulings
district court’s
responded: “I
permissible, FMC counsel
cross-examination or
from the district
think I can.” Id. at 343. The district court
court’s refusal to
instruct
on income
allowed FMC to cross-examine
subject
was not
to income taxa
taxes,
grant
but also said that it would
case, however,
tion. In either
Missouri law
if
mistrial Gander were able to show
is clear that the trial
court did not err
improper.
such cross-examination
Id.
rulings.
at 344.
made no further efforts to
FMC
appropriate
We must first consider the
taxes.
cross-examine Viscusi about income
governing
FMC
its brief
exchange
The second
over income taxes
that these issues are controlled Norfolk
bench,
present-
when
occurred at the
FMC
490,
Ry. Liepelt, 444
& Western
v.
U.S.
100
ed to the court Nesselrode v. Executive
755,
(1980)
S.Ct.
62 L.Ed.2d
Jones
Inc.,
(Mo.1986),
Beechcraft,
S.W.2d
Laughlin
Pfeifer,
Corp.
&
Steel
permitted
which
said
cross-examina-
FMC
U.S.
S.Ct.
these cases
cases,
More recent Missouri
rulings.8
Id. at 45.
in its
erred
Dempsey
has been
establish
cases, however, are not con
These
Approved Jury In-
by Missouri
superseded
held, in
specifically
trolling. We have
(MAI)
the FELA con-
outside of
structions
(8th
Indus.,
trial a “defective condi- the definition of
garding single products issue in a
tion” good. involving simple consumer
action jury may be left agree I cannot
Yet guidance at all on the definition factory equipment with involving
a case expected to typical jurors can be few familiar, where and in a case from the can infer
is defined and recovery on either form that liability, or will be re-
gence, strict both fault. percentage plaintiff's
duced suffered a recognize
I might warrant a two- injury that
grievous I damage award. am con-
million dollar
cerned, however, the award be is free of the a verdict which
result of Thus, I one here. that affect
taints a new trial. and remand for
would reverse GREENE, Widow of John
Alice Petitioner,
Pierschbacher,
DIRECTOR, OF WORKERS’ OFFICE PROGRAMS, UNIT-
COMPENSATION LA- DEPARTMENT OF
ED STATES
BOR, Respondent.
No. 88-2815. Appeals, Court
United States
Eighth Circuit. 24, 1990.
Jan. Inc., Corp., 1134-35 869 F.2d Beechcraft, sett v. K-Mart 707 S.W.2d v. Executive rode 371, (8th Cir.1989); banc); v. Siemens-Elema (en Cowens (Mo.1986) see also & n. 11 cf. (8th Cir.1988) (rejecting AB, Mfg. & Worth Steel Jarrell v. Fort reasoning prohibited argument that Nesselrode (Mo.Ct.App.1984). We have S.W.2d diversity case from defin held, only guidance, court in provide the district the MAI "unreasonably dangerous” as used giving the term authority, instruc binding for the instruction). See, e.g., diversity in a strict case. Ber tions in a federal