In conference, Judge Floyd R. Gibson expressed his desire to reverse th e 1 judgment of the district court in this case, but his tempor ary disability due to illness has prevented his further participation. The Hono rable 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

___________ Bef ore 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. -2- MORRIS SHEPPARD ARNOLD, Circuit Judge. Vicky Helle r was an employee of National Farm Products, Inc., at its ho g 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 acti onin negligence and strict product liability against Gilmour Manufacturing, Inc. In the course of the litigation, Ms. H eller 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 ne gligence claim in the amount of only $1. Mr. Wolfe appealed on severa l grounds, and Gilmour cross-appealed. W e affirm the judgment of the trial court in all 3 respects.
I. Mr. Wolfe first complains that the trial court erred by giv ing an instruction to the ju ry regarding Ms. Heller's negligence and by failing to give a cautionary instructio n regarding compensation to Ms. Heller from collateral sources such as insurance. As
apreliminary matter, we note that we examine the correctness of jury instructions as a whole and not atomistically, a nd we will not reverse a judgment based on an alleged
erro r 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-3-

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 protectiv e ap ron, 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 c ame in contact with her skin because the top two or three buttons of her raincoa t were unbuttoned; there was also test imony that Ms. Heller told the doctor who treated herat the ho spital 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 he r injuries or some part of them. We hold that the t rial court did not err by instructing the jury t o consider Ms. Heller's failure to read the directions in determining he r ne gligence, because the jury could reasonably have concluded that, if she had rea d 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 collatera l to the wrongdoer do not dimi nish 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 tr ial 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 f ind 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 rega rding collateral payments. The record sho ws that the trial court considered the proposed instruction, noted som e concerns about it, and then decided not to give it. The trial court is, of course, in the best posit ion to evaluate any difficulties that might arise in the course of the trial, and-4-

to fashion jury instructions appropriate to them. Se e 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 tria l court abused its discretion by deciding not to give the instruction o n collateral sources of compensation.

II. Mr. Wolfe also asserts that the trial court erred by admitting two exhibits int o evidence during the testimony of Sue Dorn, the farrowing manager whowas supervising Ms. Heller on t he day of the accident. Exhibit 136 was a report that included a statement t hat 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 followin g the accident. Both exhibits w ere used to impeach Ms. Dorn by showing that her prior statements wer e inconsistent.
On direct examination, Mr. Wolfe used a portion of exhibit 139 to refres h Ms. Do rn's memory about the accident, and on cross-examination, Ms. Dorn wa s questioned extensively concerning both statements. On redirect examination, Ms. Dorn admitted th at she gave four different statements, all of them inconsistent with eac h other. Following this testimony, Gilmour offered the contested exhibits into evidence, and Mr . Wolfe objected on the grounds that both statements were hearsay. The tria l court adm itted them, since they had already been described to the jury anyway , concluding that t

hey would aid the jury in determining in what way and to what extent Ms. Dorn's prior statements were inconsistent with her testimo ny. We are unable to see ho w these statements could fail to be admissible under Fed. R. Evid. 402 on th e 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-5-

harmless because the contents were cumulative of other evidence already properl y admitte d. 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 o f Ms. Heller's failure to mitigate damages immediately following the accident. Yet the
rec ordshows other evidence of Ms. Heller's failure to mitigate damages, includin g 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, an d therefore that their admission without a limiting ins truction was harmless error at worst.

III. Mr. Wolfe c ontends that a general verdict of $1 is inconsistent with the jury' s specific interrogatories finding, first, that Gilmour was liable for the accident and , seco nd, that Ms. Heller was either not negligent or only slightly negligent relative t o 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 tria l court. It is well settled in this circuit that if a party fails to object to any asserted inconsistencies i n interrogat ories, and does not move for resubmission of the case before the jury i s discharged, that party's right to seek a new trial is waived. See Lockard v. Missour i Pacific Ra ilroad Co. , 894 F.2d 299, 304 (8th Cir. 1990), cert. denied , 498 U.S. 84 7 (1990). Even if we were to entertain this issue on appeal, we would be bound to reconcile the i nterrogatories if it is possible to do so. See Anheuser-Busch, Inc. v. John Labat t L t d. , 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 herdamages after an accident to which her negligence did not contribute, and that a nominal damage award was therefore in order. There is thus no necessaryinconsistency in the jury's answers to the relevant interrogatories.-6- 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 , 5 16 U.S. 1173 (1996). In a diversity case, a court will not address a plaintiff's claims unless th e 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 Expres s Services, Inc. v. City of Kansas City, 23 F.3d 1367, 1369-70 (8th Ci r. 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 petitio n is filed, the debtor loses sta nding 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 th e filing of this suit, and the bankruptcy trus tee 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 sh all 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 al lowed after objection" for a substitution of parties. Following Gilmour's objection, the trial court permitted Mr. Wolfe to b e substitutedfor Ms. Heller as the real party in interest, and the rule provides that such
a su bstitution "shall have the same effect as if the action had been commenced in th e name of the real party in interest." Id. Thus once Mr. Wolfe replaced Ms. Heller, the-7-

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 an d 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 sufficien t evidence that Gilmour was negligent, the t rial court erred by failing to enter a judgment
as a matt er of law for Gilmour. A careful review of the record, however, indicates a signifi cant

amount of evidence tending to show that Gilmour knew or should hav e known about faults in its sprayer and acted negligently by failing to warn users of these faults or to c orrect 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 bot tles tend to disconnect from their lids, and two experts offered testimon y regarding physical faults of the Gilmour sprayer. We believe that the jury could have reasonab lyfound from this evidence that Gilmour was negligent in failing either t o 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.