In conference, Judge Floyd R. Gibson expressed his desire to reverse the

1

judgment of the district court in this case, but his temporary disability due to illness has

prevented his further participation.

The Honorable John F. Nangle, United States District Judge for the Eastern

2

District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2971/3125

___________

John V. Wolfe, Trustee, *

*

Appellant/Cross-Appellee, *

*

and *

*

Liberty Mutual Insurance, * Appeals from the United States

* District Court for the District

Plaintiff, * of Nebraska.

*

v. *

*

Gilmour Manufacturing Company, *

*

Appellee/Cross-Appellant. *

___________

Submitted: March 11, 1998

Filed: May 8, 1998

___________

Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges, 1

and NANGLE, District Judge. 2

___________
The Honorable Lyle E. Strom, United States District Judge for the District of 3

Nebraska.

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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 in all 3

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
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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., 443 N.W.2d 872, 875 (Neb. 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
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to fashion jury instructions appropriate to them. See Hall v. Arthur, 1998 WL 154620,

at *3 (8th Cir. April 6, 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
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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. Heller was either not negligent or only slightly negligent relative to

Gilmour's negligence. Mr. Wolfe asserts that the evidence of Ms. Heller's damages was

uncontroverted, and that it included medical bills and lost wages totaling about $28,000.

But Mr. Wolfe did not raise this issue in a timely fashion before the trial court. It is well

settled in this circuit that if a party fails to object to any asserted inconsistencies in

interrogatories, and does not move for resubmission of the case before the jury is

discharged, that party's right to seek a new trial is waived. See Lockard v. Missouri

Pacific Railroad Co., 894 F.2d 299, 304 (8th Cir. 1990), cert. denied, 498 U.S. 847

(1990).

Even if we were to entertain this issue on appeal, we would be bound to reconcile

the interrogatories if it is possible to do so. See Anheuser-Busch, Inc. v. John Labatt

Ltd., 89 F.3d 1339, 1347 (8th Cir. 1996), cert. denied, 117 S. Ct. 944 (1997). In this

case, the jury could have concluded from the evidence that Ms. Heller failed to mitigate

her damages after an accident to which her negligence did not contribute, and that a

nominal damage award was therefore in order. There is thus no necessary inconsistency

in the jury's answers to the relevant interrogatories.
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IV.

On cross-appeal, Gilmour argues that Ms. Heller originally lacked standing even

to bring the suit. Standing is, of course, a threshold issue in every case before a federal

court. If a plaintiff lacks standing, he or she cannot invoke the jurisdiction of the court.

See Boyle v. Anderson, 68 F.3d 1093, 1100 (8th Cir. 1995), cert. denied, 516 U.S. 1173

(1996). In a diversity case, a court will not address a plaintiff's claims unless the

plaintiff meets the "case or controversy" requirements of article III of the Constitution

and also has standing to sue under the relevant state law. See Metropolitan Express

Services, Inc. v. City of Kansas City, 23 F.3d 1367, 1369-70 (8th Cir. 1994). According

to Nebraska law, causes of action, including those for negligence, constitute property

rights that are vested in the trustee of a bankruptcy estate upon commencement of a

bankruptcy proceeding. As a result, once a bankruptcy petition is filed, the debtor loses

standing to pursue any cause of action that accrued prior to the filing of that petition.

See Forrest v. Eilenstine, 554 N.W.2d 802, 807 (Neb. Ct. App. 1996).

Ms. Heller petitioned for bankruptcy between the time of the accident and the

filing of this suit, and the bankruptcy trustee did not abandon the claim against Gilmour

prior to the filing of the suit. Thus, when Ms. Heller sought to invoke the jurisdiction

of the trial court, she did not have standing under either article III or Nebraska law to

pursue her action. To remedy this problem, Ms. Heller first reopened her bankruptcy

estate and then substituted the bankruptcy trustee as the plaintiff in this case.

In doing so, she relied on Fed. R. Civ. P. 17(a), which provides that "[n]o action

shall be dismissed on the ground that it is not prosecuted in the name of the real party

in interest until a reasonable time has been allowed after objection" for a substitution of

parties. Following Gilmour's objection, the trial court permitted Mr. Wolfe to be

substituted for Ms. Heller as the real party in interest, and the rule provides that such

a substitution "shall have the same effect as if the action had been commenced in the

name of the real party in interest." Id. Thus once Mr. Wolfe replaced Ms. Heller, the
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suit continued as if Mr. Wolfe had filed it originally. There is, of course, no dispute that

Mr. Wolfe had standing to pursue this action under article III of the Constitution and

under Nebraska law. Accordingly, we hold that Gilmour's cross-appeal is in this respect

unfounded.

V.

Gilmour asserts finally that because Mr. Wolfe failed to produce sufficient

evidence that Gilmour was negligent, the trial court erred by failing to enter a judgment

as a matter of law for Gilmour. A careful review of the record, however, indicates a

significant amount of evidence tending to show that Gilmour knew or should have

known about faults in its sprayer and acted negligently by failing to warn users of these

faults or to correct them. In addition to Ms. Heller's testimony concerning the facts of

the accident itself, three managers from National Farm Products testified that Gilmour

sprayer bottles tend to disconnect from their lids, and two experts offered testimony

regarding physical faults of the Gilmour sprayer. We believe that the jury could have

reasonably found from this evidence that Gilmour was negligent in failing either to

discover, to correct, or to warn of these risks. We therefore do not believe that the trial

court erred in denying Gilmour's motion for judgment as a matter of law.

VI.

For the foregoing reasons, we affirm the judgment of the trial court in all

respects.

A true copy.

Attest:

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