United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 20-1362

___________________________ 

Amy Elizabeth Krekelberg

 Plaintiff - Appellee

v.

City of Minneapolis; Heather Young; Matthew Olson

 Defendants - Appellants

Minneapolis Park & Recreation Board; John & Jane Does; Entity Does; Keith 

Rowland; John Wurm; Mark Gasior

 Defendants 

____________

Appeal from United States District Court 

for the District of Minnesota

____________ 

Submitted: December 16, 2020

 Filed: March 19, 2021 

____________ 

Before GRUENDER, ERICKSON, and KOBES, Circuit Judges. 

____________

GRUENDER, Circuit Judge. 

Officer Amy Krekelberg of the Minneapolis Police Department (“MPD”) 

sued more than forty local government entities and employees for, among other 
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things, violating the Driver’s Protection Privacy Act (“DPPA”), 18 U.S.C. § 2721 et 

seq. By the time of trial, only three Defendants remained: the City of Minneapolis

(“City”) and MPD Officers Heather Young and Matthew Olson. The remaining 

claims involved 74 alleged DPPA violations based on 74 impermissible accesses of 

Krekelberg’s driver’s license data by 58 MPD police officers. The jury returned a 

verdict for Krekelberg, awarding both compensatory and punitive damages. 

Defendants appeal, claiming that based on certain evidentiary and jury-instruction 

errors, they should receive a new trial. The City claims that as a matter of law, it

cannot be liable for 72 of the 74 DPPA violations for which it was held vicariously 

liable. Defendants also challenge the jury’s punitive-damages award. For the 

reasons discussed below, we affirm in part, reverse in part, vacate the judgment, and 

remand for a new trial. 

I. 

Krekelberg began working for the Minneapolis Park Police Department in 

2006. In 2012, she transferred to the MPD. In 2013, she received a letter indicating 

that her driver’s license data had been accessed. She then contacted Minnesota 

Driver and Vehicle Services (“DVS”) and requested a report showing accesses of 

her data. DVS sent her an audit showing approximately one thousand accesses by 

more than forty different law-enforcement agencies between 2003 and 2012. 

Later that year, Krekelberg filed suit against more than forty local 

governments and government agencies, including the City, as well as one thousand

“Doe” defendants. The complaint alleged various causes of action, including DPPA 

claims.1

 During discovery, Krekelberg used a subpoena to determine the names of 

1

To prove a violation of the DPPA, Krekelberg was required to demonstrate 

that a defendant “knowingly obtain[ed], disclose[d], or use[d] personal information, 

from a motor vehicle record, for a purpose not permitted” by law. See 18 U.S.C. 

§ 2724(a). The statute permits recovery of “actual damages . . . not less than 

liquidated damages in the amount of $2,500” and “punitive damages upon proof of 

willful or reckless disregard of the law.” Id. § 2724(b)(1)-(2). 
-3-

the officers who accessed her DVS data. Once she obtained that information, she 

amended her complaint to add officers who had allegedly improperly accessed her 

DVS data. Because the amendment occurred nearly a year and a half after 

Krekelberg initially brought suit and the district court held that the amended 

complaint did not relate back, many of the newly named officers successfully moved 

to dismiss the claims against them as barred by the statute of limitations. The City 

then moved for judgment on the pleadings for all vicarious-liability claims against 

it that were based on the now-dismissed claims against MPD officers, though it did 

not argue that it had been sued untimely for those claims. The court denied the City’s 

motion.

By the time of trial, all defendants other than the City and MPD Officers Olson 

and Young had been dismissed from the suit or had settled with Krekelberg. 

Krekelberg’s only remaining claims against the City were DPPA claims based on 

vicarious liability for 58 MPD police officers who had accessed her data 74 times

between December 2009 and 2012. Her only remaining claims against Officers 

Olson and Young were for one DPPA violation each. At trial, Krekelberg presented 

evidence that her DVS data had been accessed improperly more than one thousand 

times between 2003 and 2012. The court also admitted evidence that the City failed 

to investigate Krekelberg’s claims, that Krekelberg experienced harassment and 

discrimination as a consequence of filing the lawsuit, and that the City failed to hold 

the offending officers accountable, all of which Krekelberg claimed caused her 

emotional distress. 

In addition, the district court instructed the jury that “before the trial began, 

[it] made a legal ruling that the City of Minneapolis is responsible for any damages 

that [the jury] may assess to Olson or . . . Young . . . .” The jury returned a verdict 

against the City for $285,000 in compensatory damages based on 74 accesses by 58 

MPD officers. It also assessed punitive damages against Officers Olson and Young 

in the amount of $150,000 each based on their single accesses. After trial, 

Defendants moved for a new trial based on evidentiary and jury instruction errors. 

The City also moved for judgment as a matter of law under Rule 50 on all vicarious-
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liability claims where the corresponding individual-liability claim had been 

dismissed based on the statute of limitations. The district court denied these 

motions.

On appeal, Defendants claim that the district court made a number of errors. 

First, the City claims the district court erred by failing to dismiss the 72 vicariousliability claims against it that corresponded to individual-officer claims dismissed as 

time-barred based on the statute of limitations. Second, Defendants argue that they 

should receive a new trial because the district court erred by: (1) admitting evidence 

of 850 accesses of Krekelberg’s DVS data by persons and entities whose conduct 

was no longer at issue in the suit; (2) admitting evidence of alleged harassment and 

discrimination against Krekelberg resulting from the lawsuit and of the City’s failure 

to investigate her claims; (3) instructing the jury that the City would be indemnifying

Officers Olson and Young; and (4) instructing the jury that violations of lawenforcement policy and state law were per se violations of the DPPA. Finally, 

Defendants argue that we should remit the punitive-damages award because it 

violates their right to due process. 

II.

First, we address the City’s argument that the district court should have 

granted its Rule 50 motion for judgment as a matter of law as to the 72 vicariousliability claims against the City that corresponded to individual-officer claims 

previously dismissed as time-barred. 

Under Rule 50, the district court may grant a motion for judgment as a matter 

of law if “a party has been fully heard on an issue during a jury trial and the court 

finds that a reasonable jury would not have a legally sufficient evidentiary basis to 

find for the party on that issue.” Fed. R. Civ. P. 50(a)(1); Am. Bank of St. Paul v. 

T.D. Bank, N.A., 713 F.3d 455, 461-62 (8th Cir. 2013). We review de novo a denial 

of a Rule 50 motion, viewing the evidence in the light most favorable to the party 

who prevailed before the jury. Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 769 (8th 
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Cir. 2004). We “will reverse only if there is a complete absence of probative facts 

to support the verdict.” Am. Bank, 713 F.3d at 462 (internal quotation marks 

omitted). 

The question here is a legal one: When a suit is dismissed as time-barred 

against an agent, must the suit against the principal, based solely on vicarious 

liability, also be dismissed when it is undisputed that the claims against the principal

were timely? “[W]hen Congress creates a tort action,” such as the DPPA, “it 

legislates against a legal background of ordinary tort-related vicarious liability rules 

and consequently intends its legislation to incorporate those rules.” Orduno v. 

Pietrzak, 932 F.3d 710, 718 (8th Cir. 2019). As we have explained, because the 

DPPA became law in 1994, the legal background against which Congress legislated 

includes the Restatement (Second) of Agency because it had been published at that 

time. Id. Relevant here, the Restatement (Second) of Agency provides that a 

principal may be liable for the torts of his agent. See Restatement (Second) of 

Agency § 219 (Am. L. Inst. 1958). Additionally, “[p]rincipal and agent can be 

joined in an action for a wrong resulting from the tortious conduct of an agent or that 

of agent and principal, and a judgment can be rendered against each.” Id. § 217B(1). 

But when “the action is based solely upon the tortious conduct of the agent, 

judgments on the merits for the agent and against the principal . . . are erroneous.” 

Id. § 217B(2). 

The City argues that, by dismissing the claims against certain officers as 

untimely while allowing a jury verdict against the City on related vicarious-liability 

claims to stand, the district court violated the rule articulated in section 217B(2). 

Everyone agrees that the principal (the City) and the agents (the individual police 

officers) were joined in an action “based solely upon the tortious conduct of the 

agent[s]” and that the jury returned a verdict against the City. See id. The question, 

then, is whether the district court’s dismissals of the DPPA claims against the 

individual police officers were “judgments on the merits for the agent[s].” 
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Pointing to Federal Rule of Civil Procedure 41(b), the City argues that a 

dismissal based on the statute of limitations is “on the merits.” Rule 41(b), which 

governs involuntary dismissals, states that “[u]nless the dismissal order states 

otherwise, a dismissal under [Rule 41(b)] and any dismissal not under this rule—

except one for lack of jurisdiction, improper venue, or failure to join a party under 

Rule 19—operates as an adjudication on the merits.” The City claims that this 

dismissal constitutes an adjudication “on the merits” because it is not one of the three 

listed exceptions in Rule 41(b). 

The City’s proposed interpretation of “judgment on the merits” in section 

217B(2) is erroneous. Section “217B’s ‘on the merits’ language was not intended 

to encompass procedural dismissals that do not adjudicate the wrongfulness of the 

agent’s conduct. Instead and in context, . . . [it] means judgment on the merits of the 

conduct, that is, a judgment finding that the employee is not culpable.” Verrastro v. 

Bayhospitalists, LLC, 208 A.3d 720, 728 (Del. 2019).2

 This view is bolstered by 

comment (e) to section 217B(2), which suggests that the rule is about when “the jury 

improperly returns a verdict for the agent and against the principal.” It is also in 

accord with Black’s Law Dictionary (11th ed. 2019), which defines “judgment on 

the merits” as “[a] judgment based on the evidence rather than on technical or 

procedural grounds.” 

With respect to the City’s Rule 41(b) argument, the Supreme Court explained 

in Semtek International Inc. v. Lockheed Martin Corp. that the phrase “adjudication 

on the merits” in Rule 41(b) means “with prejudice” and should not be equated with 

a “prototypical judgment on the merits”—“one in which the merits of a party’s claim 

are in fact adjudicated for or against the party after trial of the substantive issues.” 

531 U.S. 497, 502, 505-06, 509 (2001).3

 Thus, the dismissals of the 72 underlying 

2

Although Verrastro itself obviously postdates the DPPA, it interprets section 

217B(2), which forms the backdrop to this question. 

3

The City cites to Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), for the 

proposition that a dismissal based on the statute of limitations is “on the merits.” 
-7-

claims against the officers were not “judgments on the merits” under the meaning of 

section 217B(2), and that section does not prohibit the City from being held 

vicariously liable for them. 

The City also argues for dismissal of the 72 vicarious-liability claims on the 

basis of “ordinary tort-related vicarious liability rules.” In support, the City 

primarily relies on two state-court decisions issued before 1994: Greco v. University

of Delaware, 619 A.2d 900, 904 (Del. 1993), overruled by Verrastro, 208 A.3d 720, 

and Karaduman v. Newsday, Inc., 416 N.E.2d 557, 564 (N.Y. 1980). But both Greco

and Karaduman are inapposite for the same reason: neither poses the scenario in 

which a principal is timely sued while an agent is not. See Greco, 619 A.2d at 901-

02, 904; Karaduman, 416 N.E.2d at 558-59, 563. In both cases, the principal was 

not sued until after the agent’s statute of limitations had run. See Greco, 619 A.2d 

at 901-02, 904; Karaduman, 416 N.E.2d at 558-59, 563. 

Ultimately, the City has not proffered a sound argument for why we should 

dismiss the 72 timely filed vicarious-liability claims. Certainly, a principal may be 

sued for his agent’s conduct even if the agent is not sued as well. See, e.g., Brosamle 

v. Mapco Gas Prods., Inc., 427 N.W.2d 473, 475 (Iowa 1988) (“[T]he servant is not 

a necessary party to an action against the master.” (internal brackets omitted));

Rieser v. District of Columbia, 563 F.2d 462, 469 n.39 (D.C. Cir. 1977) (same). 

Therefore, we affirm the district court’s denial of the City’s Rule 50(b) motion for 

judgment as a matter of law with respect to the 72 vicarious-liability claims against 

it. 

Plaut states: “The rules of finality, both statutory and judge made, treat a dismissal 

on statute-of-limitations grounds the same way they treat a dismissal for failure to 

state a claim, for failure to prove substantive liability, or for failure to prosecute: as 

a judgment on the merits.” Id. at 228. But Plaut did not address questions of 

vicarious liability. Id. Nor did it explain what the term “judgment[] on the merits” 

means in the Restatement (Second) of Agency. Id. As Semtek notes, the phrase has 

multiple meanings. 531 U.S. at 501-02, 505-06.
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III.

Defendants argue that they are entitled to a new trial because the district court: 

(A) admitted evidence of 850 accesses that were not committed by the 58 MPD 

officers whose alleged DPPA violations were at issue; (B) admitted evidence of 

harassment, retaliation, and failure to investigate by the City; (C) instructed the jury 

that the City would indemnify Officers Young and Olson; and (D) instructed the jury 

that violations of law-enforcement policy and state law were per se violations of the 

DPPA. We conclude that Defendants are entitled to a new trial on the basis of (A), 

(B), and (C). 

A.

Defendants argue that the district court violated Federal Rule of Evidence 403 

by admitting evidence of 850 accesses that were not committed by the 58 officers 

whose conduct was at issue at trial.

4

 “We review the district court’s evidentiary 

rulings for abuse of discretion, and we may not reverse unless the district court erred 

and the error affected the substantial rights of the appellant.” Green v. City of St. 

Louis, 507 F.3d 662, 669 (8th Cir. 2007).

Rule 403 states that the court “may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 

issues, [or] misleading the jury,” among other things. “A trial judge can and should 

exclude evidence when convinced that it will create a danger of prejudice 

outweighing its probative value.” Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 

1981). “However, rule 403 . . . does not offer protection against evidence that is 

merely prejudicial in the sense of being detrimental to a party’s case.” Id. “The rule 

4

Defendants initially argued that the district court should have excluded 

evidence of another 50 time-barred accesses that were committed by the 58 officers 

whose conduct was at issue in the suit. We need not reach whether the district court 

abused its discretion in admitting this evidence because we conclude a new trial is 

required on other bases. 
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protects against evidence that is unfairly prejudicial, that is, if it tends to suggest 

decision on an improper basis.” Id. The Advisory Committee Notes to Rule 403 

explain that a decision on an “improper basis” is “commonly, though not necessarily, 

an emotional one.” 

The district court admitted evidence of 850 time-barred or dismissed access

claims that were not performed by the 58 police officers whose 74 accesses were at 

issue. These additional accesses were performed either by other MPD officers or by 

persons in different departments or law-enforcement agencies. Krekelberg argues 

that the district court properly admitted these 850 accesses because they were 

relevant to the emotional distress she suffered. We hold that under Rule 403 it was 

an abuse of discretion to admit this evidence because the risk of unfair prejudice 

substantially outweighed its probative value, which was minimal. 

At most, the 850 accesses were minimally probative of the emotional distress 

Krekelberg experienced from the 74 accesses actually at issue in the case. About 

500 of the 850 accesses were by persons who were not part of the MPD and whose 

accesses were time-barred or who had settled. The other 350 time-barred or settled 

claims related to accesses by officers in the MPD whose conduct was not at issue in 

the suit. None of these 850 accesses should have been considered in the jury’s 

damages calculation, which should have been based solely on the 74 non-timebarred, unsettled access claims. See Orduno, 932 F.3d at 719 (acknowledging that 

the defendant could not be liable for time-barred violations of the DPPA). Only the 

emotional damage caused by these 74 improper accesses was at issue.5

 To allow 

Krekelberg to recover emotional damages based on all 850 would be to allow her to 

recover damages based on settled or dismissed claims.

5

18 U.S.C. § 2724(b) does not expressly provide for emotional distress 

damages. However, no party challenges the award of emotional distress damages 

on appeal. Therefore, we assume, without deciding, that emotional distress damages 

are a permissible remedy for a violation of the DPPA.
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On the other hand, this evidence was extraordinarily prejudicial and risked 

confusing the jury because it took the focus off the 74 accesses from December 2009 

to 2012 at issue in the suit and onto the 850 time-barred accesses from 2003 to 

December 2009, which could not be considered as damages. Krekelberg testified 

that about half of the one thousand accesses “c[a]me from Minneapolis” and that 

they were conducted by more than two hundred MPD officers, which tended to 

portray the City as a bad actor. Krekelberg testified that learning about all these 

accesses, especially those performed by her coworkers at MPD, caused her 

emotional distress. Admitting into evidence such a large number of accesses by 

persons whose conduct was not at issue in the suit, many of whom worked for the 

City, is “inflammatory,” see Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 

1075 (5th Cir. 1986), and likely to “divert the jury’s attention from the real dispute 

in the case”—namely, the 74 accesses. See Wheeling v. Pittsburgh Steel Corp. v. 

Beelman River Terminals, Inc., 254 F.3d 706, 717 (8th Cir. 2001). Therefore, it was 

an abuse of discretion to admit this evidence, as it would have tended to increase the 

amount of damages on an impermissible basis.

6 See Orduno, 932 F.3d at 719 

(“Allowing evidence of other obtainments [of information that violated the DPPA] 

risked encouraging the jury to award damages based on time-barred incidents for 

which [the defendant] could not be liable” because “the jury’s task was to determine 

damages flowing from the . . . unlawful obtainments.”).

Krekelberg argues that the admission was harmless because the district court 

gave a limiting instruction. However, a limiting instruction is not a cure for any and 

all Rule 403 errors. See United States v. Roark, 924 F.2d 1426, 1434 (8th Cir. 1991) 

(holding that a limiting instruction may remedy one statement but cannot cure the 

entire theme of a trial); Rule 403 Advisory Committee Notes (“In reaching a decision 

6

In fact, it is likely to have done so. As discussed below in Section III.C, the 

district court instructed the jurors that the City would be liable for punitive damages 

assessed against Officers Young and Olson. The fact that the jury assessed $150,000 

in punitive damages against each of Officers Olson and Young, based only on one 

access each, suggests that the jury was attempting to assess punitive damages against 

the City on the basis of the City’s alleged “bad acts.” 
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whether to exclude on grounds of unfair prejudice, consideration should be given to 

the probable effectiveness or lack of effectiveness of a limiting instruction.”); 21A 

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5066 

(2d ed.) (“If the [limiting] instructions [would be] . . . ineffective . . . , then the trial 

judge should exclude the evidence under Rule 403.”). Here, Krekelberg made the 

evidence a theme of her case by introducing it multiple times in different ways and

by repeatedly referencing the one thousand improper accesses during opening and 

closing argument. See Roark, 924 F.2d at 1434. Thus, the limiting instruction did 

not overcome any unfair prejudice. 

B. 

Defendants also argue that the district court violated Rule 403 by admitting

evidence of harassment, retaliation, and failure to investigate by the City after 

Krekelberg notified her superiors of the violations. Defendants claim that this was 

an abuse of discretion because there was no evidence that any of the 58 officers 

involved in the improper accesses at issue committed these bad acts and that the City 

could not be vicariously liable for any conduct except for the conduct of the 58

officers. Krekelberg argues that this evidence was rightly admitted as evidence of 

reasonably foreseeable damages. 

Krekelberg’s argument is unavailing. In Orduno, the plaintiff challenged a 

district court’s exclusion of the city’s response to its employee’s violations of the 

DPPA. 932 F.3d at 719. On appeal, we affirmed the district court’s exclusion of 

evidence because “no question of the City’s direct liability was before the jury,” and, 

therefore, “the court did not abuse its discretion in focusing the trial on the harm that 

[the defendant’s] . . . violations caused [the plaintiff].” Id. In doing so, we implied

that a defendant’s response to a plaintiff’s allegations of DPPA violations cannot 

cause damages when the defendant is only vicariously liable. Krekelberg points to 

no evidence that the alleged harassment, retaliation, and failure to investigate were 

caused by the persons who accessed her data. See, e.g., Menghi v. Hart, 745 F. Supp. 

2d 89, 107 (E.D.N.Y. 2010) (awarding emotional distress damages for threats and 
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harassing phone calls from the person who unlawfully accessed the plaintiff’s 

information). Thus, this evidence was not probative of any of her damages. 

This evidence was also unfairly prejudicial. The retaliation, harassment, and 

failure-to-investigate evidence translated into a major and irrelevant trial theme: the 

City is a bad actor. Approximately a third of Krekelberg’s opening and closing

statements were devoted to this irrelevant theme. During the trial, Krekelberg

testified that “since trying to hold people accountable,” she had been “excluded from 

things” and had not been “backed up on calls,” causing “some sleepless nights, some 

depression.” Unknown persons took her nametag off her work mailbox so that it fell 

on the floor and was trampled numerous times. She lost part-time work because an 

officer said she “was trouble.” Someone filed an internal-affairs complaint against 

her, and no one at MPD ever asked her about her side of the story. On two separate 

occasions after filing suit, cars were parked in front of her house, which caused her 

constantly to fear that something was going to happen to her children or her. 

Krekelberg also testified that the City failed to hold accountable the officers who 

performed impermissible accesses, promoting rather than punishing them. And 

Krekelberg introduced evidence that the City failed to investigate the accesses

thoroughly and fairly, which her attorneys portrayed as a “coverup.”

We have previously noted in the Rule 403 context that while “[o]ne statement” 

may be “damaging but isolated,” “the jury [cannot] disregard the entire theme of the 

trial,” even if there is a limiting instruction. Roark, 924 F.2d at 1434. And with 

respect to this evidence, there was no limiting instruction. Failing to exclude the 

bad-acts testimony was an abuse of discretion under Rule 403, as it was minimally 

if at all probative to the issues at trial and essentially put the City on trial for 

harassment, discrimination, and failure to respond, when the 74 accesses were the 

only relevant source of City liability. 
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C. 

Finally, the City contends that the district court erroneously instructed the jury 

that the City was liable for all damages, including punitive damages, assessed against 

Officers Olson and Young. This court reviews jury instructions for abuse of 

discretion.7

 Am. Bank, 713 F.3d at 467. “A district court possesses broad discretion 

in instructing the jury, and jury instructions do not need to be technically perfect or 

even a model of clarity.” Id. “We limit our review to whether the jury instructions, 

taken as a whole, fairly and adequately represent the evidence and applicable law in 

light of the issues presented to the jury in a particular case.” Id. at 467-68 (internal 

quotation marks omitted). “Even if we find that a district court erroneously 

instructed the jury, we will reverse only where the error affects the substantial rights 

of the parties.” Id. at 468 (internal brackets omitted).

The district court provided the following instruction to the jury: “Before the 

trial began, I made a legal ruling that the City of Minneapolis is responsible for any 

damages that you may assess to Olson or to Young or to the additional accesses at 

issue in this case.” Krekelberg claims that this statement is solely about the City’s 

vicarious liability for accesses. However, Defendants claim that it is misleading and 

prejudicial because the Court already held that the City could not be vicariously 

liable for punitive damages. Defendants are correct that the district court had 

previously ruled that the City was not vicariously liable for punitive damages. 

Krekelberg does not dispute this ruling on appeal. 

7

Krekelberg claims that Defendants forfeited this objection by failing to object 

earlier, when the court asked the jurors during voir dire whether “anyone on this 

potential jury panel . . . would have a problem awarding damages against the City of 

Minneapolis for the conduct of a police officer.” Krekelberg is incorrect. The 

question by the court in voir dire did not carry the same implications as the jury 

instruction. The voir dire question referenced vicarious liability generally. On the 

other hand, as discussed below, the jury instruction implied that the City would be 

responsible for punitive damages assessed against Officers Olson or Young. 
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The jury instruction implied that the City would be responsible for punitive 

damages assessed against Officers Olson or Young. The court stated that the City 

would be responsible for “any damages” assessed to Officers Olson or Young. It 

did not distinguish between punitive damages and compensatory damages. 

Moreover, the verdict form indicated only two places where it expressly stated that 

damages could be assessed to Officers Olson and Young, and both assessed only

punitive damages. Thus, the court’s jury instruction effectively informed the jury 

that the City was responsible for punitive damages assessed against Officers Olson

and Young. 

We have previously reversed a jury’s verdict on the basis that the jurors were 

informed about the indemnification status of the defendant. See Griffin v. Hilke, 804 

F.2d 1052, 1057 (8th Cir. 1986). “The reasoning behind this . . . is that it will result 

in an unduly generous award of damages by the jury.” Id. Indeed, the same 

reasoning is well illustrated by what happened here, where the jury awarded 

$150,000 in punitive damages against each officer for a single access. Accordingly, 

we conclude that it was an abuse of discretion to instruct the jury in this manner. 

D.

We conclude that the cumulative effect of the faulty jury instruction and the 

evidentiary errors affected Defendants’ “substantial rights.” Am. Bank, 713 F.3d at 

464, 468. Whether an error affects “substantial rights” is determined by whether 

there is harmless error, which turns on whether the “error affected the judgment.” 

Shinseki v. Sanders, 556 U.S. 396, 407-08 (2009); see also Qualley v. Clo-Tex Int’l, 

Inc., 212 F.3d 1123, 1127-28 (8th Cir. 2000) (“Where the district court errs in 

admitting evidence, we will only grant a new trial or set aside a verdict if there is a 

clear and prejudicial abuse of discretion . . . [which] occurs when the error 

prejudicially influences the outcome of the case.” (internal brackets and quotation 

marks omitted)). “[T]he burden” for making this “showing . . . rests on the party 

asserting it.” Qualley, 212 F.3d at 1128. To determine whether the errors 
-15-

prejudicially influenced the outcome of the case, we look to the jury’s verdict. Id. 

at 1131. 

Here, the punitive-damages portion of the jury’s verdict is incongruous with 

the facts on which it is premised. The jury awarded $150,000 in punitive damages 

against Officer Olson, and another $150,000 against Officer Young, for only a single 

access each. These findings are so excessive that “the jury had to [have] look[ed]

beyond the” two accesses at issue to extraneous things. See id. Here, it is evident 

that this award was based on the abundance of highly prejudicial, minimally relevant 

evidence about 850 accesses not at issue in the case (more than half of which were 

performed by persons who were not MPD officers), the City’s and its employees’ 

alleged bad acts, and the erroneous jury instruction that the City would be liable for 

Officers Olson and Young’s punitive damages. 

Considering that these evidentiary errors and jury instructions influenced the 

verdict, we vacate the judgment and remand for a new trial.8

 

IV.

For the foregoing reasons, we affirm the district court’s order declining to 

dismiss the vicarious-liability claims against the City, but we vacate the judgment, 

reverse, and remand for a new trial due to the erroneous admission of evidence and

faulty jury instruction that affected Defendants’ substantial rights. 

_____________________________

8

We need not reach whether the punitive-damages award should be remitted, 

as it will be vacated. Likewise, we need not reach whether the district court erred in 

instructing the jury that violations of law-enforcement policy and state law are per 

se violations of the DPPA, as we deem the necessity for a new trial sufficient on 

other bases.