# United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2199

___________ Glen Wood, * *

Plaintiff-Appellee, * * The Travelers Insurance * Company, * Appeal from United States * District Court for the Eastern Intervenor-Appellee, * District of Arkansas. * v. * * Minnesota Mining and * Manufacturing Company, * * Defendant-Appellant. *

___________ Submitted: January 15, 1996 Filed: April 21, 1997

___________ Before LOKEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ BRIGHT, Circuit Judge.
Glen Woodsought damages after being struck by Minnesota Mining and Manufa cturing Company’s (3M) train while crossing 3M’s tracks in hi s employer’s truck. Th e jury returned a $300,000 verdict in favor of Wood. 3M challenges the ver dict and raises a variety of evidentiary issues. We affirm.

### -2- BACKGROUND
Glen W ood drives a truck for Silica Transport. On April 10, 1992 , Wood picked up a load at a 3M plant in his tractor-trailer rig and drove his truck through a 3M railroad crossing as a 3M train moved toward him. There wer e no crossbucks or lights at the crossing. The train enginee r honked the horn, shouted and waved. Because the train was travelin g backwards, the horn faced away from Wood who did not hear these noises fro m inside the cab of the truck. The 3M train ran into Wood’s truck. Th e train engineer jumpedoff the train before the collision, thus, there was no one on board when the train struck Wood and t he horn was not blowing in the final seconds before the collision. Wood’s employer, Silica Transport, paid 3M $28,000 for damage t o 3M’s train. Wood subsequently filed suit on April 12 , 1994, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332 and se eking damages for personal injur ies due to 3M’s negligence. He alleged permanent injuries to hi s lower back and left shoulder, loss of earnings and earning capacity, and pain and suffering. A jury returned a verdict i n Wood’s favor and awarded him $300,000 in damag es. 3M then filed a motion for judgment as a matter of law and, in the alternative, for a new trial. The district court denie d these motions and 3M appealed.

DISCUSSION

3M raises five issues on appeal. First, 3M argues that the tria l court erred by denying 3M’s motions for judgment as a matter of law
. Second, 3M asserts the trial court erred in admitting plaintiff’s expert test imony. Third, 3M contends the trial court’s exclusion of Wood’ s employer’s payment for damages to 3M’s

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locomotive under Fed.R.Evid. 408 constituted prejudicial error. Fourth, 3M argues the trial c ourt’s jury instruction regarding the duty of the 3M railroad to keep a lookout on the train was prejudicially improper. Fifth , 3M believ es the jury verdict was against the weight of the evidence an d required a new trial. We consider these arguments in turn.

I. 3M first argues that the district co urt erred by denying 3M’s motion for a verdict as a matter of law:

If during a trial by jury a party has b een fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on tha t issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party .

. . . Fed.R.Civ.P. 50. In making this determination, the trial judge must “view the evidence in the light most favorable to the plaintiff, and to give the plaintiff the benefit of all favorable inferences reasonably to be drawn from the evidence.” Lang v. Cone , 542 F.2d 751, 754 (8th Cir. 1976); Croo m v. Younts , 323 Ark. 95, 913 S.W.2d 283, 286 (1996). “We review th e district court’s denial of a motion for judgment as a matter of law de nov o using the same standards as the district court.” Keenan v. Computer Assoc . Int’l, Inc. , 13 F.3d 1266, 1268 (8th Cir. 1994).
3M is not entitled to a verdict as a matter of law. Wood introduced evidence of an essentially unguarded rail crossing lacking guards, lights , or cr ossbucks. The effectiveness of stop signs was, at best, nominal
. Finally, the train’s horn failed to alert Wood because it faced th e opposite direction. Viewing the

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evidence in the light most favorable to Wood supports the trial court’ s denial of 3M’s motion for judgment as a matter of law.

II.
3M next argues that the district court erred by admitting th e testimony of Archie Burnham and by excluding evidence of a payment b y Wood’s employer to 3M for damage to 3M’s train. We review thes e evidentiary rulings o nly for an abuse of discretion. Crues v. KFC Corp. , 768 F.2d 230, 233 (8th Cir. 1985). We consider these arguments in turn.

A.
Archie Bu rnham testified as an expert regarding whether 3M properly constructed the railr oad crossing and provided reasonable warning of that crossing. 3M argues that the trial court abused its discretion becaus e Burnham’s testimony was irrelevant and unreliable. We disagree.
Federal Rule of Evidence 702 governs the admissibility of exper t testimo nyand the trial judge screens such evidence for relevance an d reliability. Daubert v. Merrell Dow Pharmaceutical, Inc. , 509 U.S. 579, 589 (1993). In order to determine relevance, the trial court reviews the expert testimony to e nsure it is scientifically based and will assist the trier of fact in determining a fact at issue. Id. at 589-90. Th e exclusion of an expert’s opinion is proper only if it is “`so fundamentall y unsupported that it can offer no assistance to t he jury . . . .’” Hose v. Chicago Northwestern Transp. Co. , 70 F.3d 968, 974 (8th Cir. 1995) (quotin g Loudermill v. Dow Chem. Co. , 863 F.2d 566, 570 (8th Cir. 1988)).

### “I want you to understand the witness is not telling you that 1 

### he thinks there’s any Arkansas law or regulation that requires a cross buck. He’s giving you his opinion as to what he thinks is the prudent thing to do on private crossings.” Appellees’ App. at 112. -5- The distr ict court noted several facts relating to Burnham’s career which qua lify him as an expert. For example, Burnham, a highway safet y specia list, completed graduate studies at Yale University. During hi s thirty-year career with the Georgia Department o f Transportation, he spent sixteen years directing the office of traffic and safety which oversees al l of the sta te’s public railroad crossings. In addition, Burnham was a contributing editor o f an important text regarding traffic engineering as it app lies to railroad crossings. Accordingly, the court properl y cons idered him an expert in the field of traffic control systems an d railroad crossings. The trial court also engaged in a le ngthy hearing before determining that B urnham’s testimony was relevant. Appellees’ App. at 90-100
. Burnham’s testimony assisted the jury in determining whether 3M properly con structed a railroad crossing on its property and whether 3M provide d reasonable warning of that crossing. The distri ct court informed the jury that Burnh am’s testimony was not evidence of a legal violation by 3M
. Appellees’ App. at 111-112. We do not believe that the trial court erred 1 in determining that the testimony would assist the jury in determinin g whether the crossing was reasonably safe. In add ition, the district court implicitly determined that th e testim onywas reliable. 3M, however, asserts Burnham’s methodology an d fact- gathering techniques relating to his decibel readings and sit e distan ce triangulation were suspect. The district court reviewed thi s methodology at length and did not abuse its

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disc retion in determining that Burnham’s methodology was sound
. Furthermore, the fact that Burnham lacked expertise in private crossings did not render his testimony unhelpful. Finally, 3M argues that the district judge failed in his duty as the “gatekeeper” for the expert testimony. Before trial, Burnham stated that he would not testify about the operation of the brake system or whether th e train engineer applied the brakes too late. At trial, however, Burnha m testified to both issues without objection. Even if such testimony wa s inappropriate, we conclude that admitting it was harmless error. We do no t believ e the jury’s verdict would have been different without thi s testimony.

We co nclude, therefore, that the district court did not abuse it s discretion by admitting Burnham’s testimony.

B.
3Malso asserts that the district court erroneously excluded 3M’ s evidence that Wood’s employer, Silica Transport, paid $28,000 for damages to 3M ’s locomotive. The district court refused to admit this evidenc e under Fed.R.Evid. 408, which states in relevant part:

Ev idence of (1) furnishing or offering or promising t o furnish, or (2) accepting or offering or promising to accept, a valu able consideration in compromising or attempting t o compromise a claim which was disputed as to either validity or amount, is not admissibl e to prove liability for or invalidity of the claim or its amount. . . .

3M asse rts that, in order for Rule 408 to be operative, litigatio n must be taking place or threatened and cites to S.A.

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Healy Co. v. Milwaukee Metro Sewerage Dist. , 50 F.3d 476, 480 (7th Cir
. 1995), fo r support. In this case, Silica Transport paid 3M $28,00 0 approximately two years before Wood filed his lawsuit.
We need n ot reach that issue, however, because we conclude that the paym ent by Wood’s employer was irrelevant to Wood’s case against 3M
. Fed.R.Evid. 402. The employer’s financial concession is not binding in any way on Wood’s legal action. Even if relevant, we conclude that thi s evidence’s unfair prejudicial effect substantial ly outweighs its probative value beca use a jury could be unfairly swayed by evidence of Silica’ s financial concession to 3M. Fed.R.Evid. 403. Accordingly, the district court properly excluded evidence of Silica’s payment to 3M.

III.
3M next argues that the district court gave an incorrect jur y instruc tion. The district court submitted the following instruction , entitled Duty of Railroad To Keep Lookout , over 3M’s objection:

Al l persons operating trains upon any railroad in thi s state sh all have the duty to keep a constant lookout fo r person s and property upon, near, or approaching the railroa d track. A violation of this duty is negligence. This does not mean that each member of the train cre w mu st keep a constant lookout, but it does mean that a n efficien t lookout must be kept by some member of the crew a t all times.
Appellant’s App. at 399. Arkansas law states: “It shall be the duty of al l persons running train s in this state upon any railroad to keep a constant lookout for all persons, including licensees andtrespassers, and property upon the track of any and all railroads.”

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Ark. Code Ann. § 23-12-907(a)(1) (1995). We review the district court’s determinations of state law de novo. Salve Regi na College v. Russell , 499 U.S. 225, 231 (1991).
3M objec ted to this instruction, arguing that the statute applie d to public railroads involved in interstate commerce and not to privat e rail roads such as 3M’s. 3M further argues that the Arkansas statut e regards “railroads” as being “on an equal basis with other persons, firms, and corporations . . . .” Ark. Code. Ann. §§ 23-12-901, 23-12-907(c)
. Accord ing to 3M, the legislature expressed its intention to trea t “railroads” as a separate jural entity which could sue and be sued, like any othe r person, firm, or corporation. In short, 3M asserts th e instruction effectively imposed an obligation on3M that state law did not recognize.
The district court determined that t he statute “applies only to `all per sons operating trains,’ it does not require it to be a railroa d corpo ration or common carrier, and there’s no requirement that it be a pub lic road, and, therefore, I think all of the definitions in th e instruc tion are met by the facts in the case.” Appellee’s App. at 205
. We agree that a plain reading of the statute sup ports the district court’s juryinstructions regarding 3M’s duty to keep a lookout on its railroad.

Alternatively, 3M argues that the instruction was unwarranted i n this case because 3M introduced undisputed evidence that the train engineer kep t a lookout , saw the truck, blew the horn, applied the brakes, yelled an d waved t o warn Wood of the approaching train. We disagree. Whether th e engineer kept an adequate lookout was a fact question for the jury and we decline to disturb that conclusion here.

### -9- IV. Finally, 3M contends that the distri ct court erroneously denied 3M’s motion for a new trial because the verdict is against the weight of th e evidence. The authority to grant or deny a new trial is a matter within the district court’s discretion and is not to be reversed absent a clear abuse of that discret ion. Keenan , 13 F.3d at 1269. “The key question is whether a new trial should have been granted to avoid a miscarriage o f justice.” Id. Where, as here, the “basis of the motion for a new trial is that the jury’s verdict is against the weight of the evidence, th e distri ct court’s denial of the motion `is virtually unassailable o n appeal.’” Keenan , 13 F.3d at 1269 (quoting Peterson ex rel. Peterson v. General Motors Corp. , 904 F.2d 436, 439-40 (8th Cir. 1990)). Based on the facts presented at tr ial and discussed in Section I, there is evidence to support the jury’s verdict. Accordingly, we decline to do disturb the jur y verdict.

CONCLUSION

For t he foregoing reasons, we affirm the decision of the distric t court.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.