The HONORABLE MICHAEL J. DAVIS, United States District Judge for the 1

District of Minnesota, sitting by designation.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

___________

97-2760

___________

*

Rebecca Ratliff and *

Robert Ratliff, *

 *

Plaintiffs/Appellants, *

 *

v. * Appeal from the United States

 * District Court for the Eastern

Schiber Truck Company, Inc. * District of Missouri.

 *

Defendant/Appellee. *

____________

Submitted: February 12, 1998

Filed: August 5, 1998

_____________

Before WOLLMAN and HANSEN, Circuit Judges, and DAVIS , District Judge. 1

DAVIS, District Judge.

Appellants Rebecca and Robert Ratliff are the surviving children of Jane Ratliff.

Appellants commenced this action in the United States District Court, Eastern District

of Missouri, alleging that Gene Baugh, an employee of Appellee Schiber Truck

Company, Inc. (“Schiber”), wrongfully caused the death of their mother. On April 22,
The Honorable E. Richard Webber, United States District Court, Eastern

2

District of Missouri, Northern Division.

There is a factual dispute as to whether Mr. Baugh actually had stopped the

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truck at the time of the accident, or whether the truck was still moving, albeit at only

5 m.p.h.

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1997, a jury returned a verdict finding decedent Mrs. Ratliff 100% at fault and Schiber

0% at fault for the auto accident that caused her death. After the jury rendered its

verdict, Appellants moved the district court for a new trial. By written order, the

district court considered the arguments of counsel and denied their motion for a new 2

trial, finding the verdict was not against the clear weight of the evidence. The district

court was also unpersuaded that a new trial was warranted because of asserted errors

committed by the district court. Appellants now appeal the district court’s denial of

their motion for a new trial.

I.

On July 28, 1995, Jane Ratliff was driving a car, traveling northbound in the right

lane of Highway 61, a four lane highway in Pike County, Missouri. Her brother,

Robert Selim, was a passenger in the car. Ahead of her in the right lane was a

commercial tanker truck owned by Schiber and driven by one of its employees, Gene

Baugh. As she approached the Schiber truck, Mrs. Ratliff entered into the left lane to

pass it. Once she moved into the left lane, she observed another vehicle, in the same

left lane, traveling southbound directly toward her. To avoid a head-on collision with

the wrong way driver, Mrs. Ratliff attempted to return to the right lane. However, at

that point, Mr. Baugh had stopped, or substantially slowed down, the truck in the right

lane. As a result, when Mrs. Ratliff attempted to return to the right lane, she collided 3

with the truck, and suffered fatal injuries.

Appellants commenced this wrongful death action against Schiber, alleging that
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Schiber proximately caused or contributed to the death of Mrs. Ratliff, because of the

negligence of Gene Baugh in stopping the truck in the right lane of the highway. In its

defense, Appellee argued Mr. Baugh was not negligent, and that in fact the accident

was caused as a result of Mrs. Ratliff’s excessive speed. The matter was tried before

a jury on April 21 and 22, 1997. The verdict form provided to the jury directed that the

jury apportion the fault of the accident between Mrs. Ratliff and Mr. Baugh. The jury

returned their verdict, finding Mrs. Ratliff 100% at fault. 

II.

A verdict will stand if it is supported by substantial evidence. Purchal v.

Patterson, 762 F.2d 713, 715 (8 Cir. 1985). A new trial may be granted where the

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verdict is against the clear weight of the evidence or to prevent injustice. Fireman’s

Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186 (8 Cir. 1972) cert.

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denied Aalco Wrecking Co., Inc. v. Fireman’s Fund Ins. Co., 410 U.S. 930 (1973).

Courts cannot reweigh the evidence and set aside a jury verdict because the jury could

have drawn different conclusions or inferences or because the court feels that other

results are more reasonable. Id. (citing Tennant v. Peoria and Pekin Union Ry, 321

U.S. 29, 35 (1944)). Great deference is accorded the district court ruling on a motion

for new trial, and will be reversed only upon a strong showing of abuse. Shaffer v.

Wilkes, 65 F.3d 115, 118 (8 Cir. 1995). th

At trial, Appellants offered the testimony of Ruth Freeman. Ms. Freeman is a

truck driver that was also traveling northbound on Highway 61 on the date of the

accident. Ms. Freeman testified that she was not too far ahead of Mr. Baugh and Mrs.

Ratliff when she noticed a cream colored Ford Fairmont driven by an older woman

traveling southbound in the left, northbound lane. Ms. Freeman maintained her speed

and passed the wrong way vehicle. After the vehicle passed, she heard the accident

and stopped to phone for the police and an ambulance.
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Mrs. Ratliff’s brother, Robert Selim, also testified at the trial as a witness for

Appellants. Mr. Selim testified that he and his sister were traveling to Des Moines,

Iowa for a family reunion. He stated that on the day of the accident, the weather was

clear. Shortly before the accident, Mr. Selim testified that as their car approached the

Schiber truck, Mrs. Ratliff moved into the left lane in order to pass the truck. He could

not recall how fast his sister was driving at that time. 

Appellants also called Bruce Becker, a trooper with the Missouri Highway

Patrol, as a witness at trial. Trooper Becker was on duty the day of the accident and

was called to the scene. Because Mrs. Ratliff’s car had left skid marks, he and

Corporal Murphy took measurements at the accident scene to determine placement and

dimensions of skid marks, gouge marks and the final resting places of the Ratliff

vehicle and the Schiber truck. Trooper Becker also testified that he spoke with Mr.

Baugh at the scene, who stated that he had stopped his truck after seeing the wrong

way driver. Trooper Becker also testified regarding Missouri statute section 304.019,

which provides, in part, that “no person shall stop or suddenly decrease the speed or

turn a vehicle from direct course or move right or left upon a roadway until that

movement can be made with reasonable safety.” Trooper Becker also testified that the

speed limit at the scene was 40 m.p.h., as it was a construction zone.

Finally, Appellants’ expert in the field of accident reconstruction, Francis

Oldham, testified that in his opinion, the accident was primarily caused because Mr.

Baugh stopped the trailer truck in response to the wrong way driver while remaining

in the right lane of the highway. Mr. Oldham opined that if Mr. Baugh had continued

to drive at 40 m.p.h., the accident would not have occurred because Mrs. Ratliff would

not have had to pull out to pass the truck, or if she did pull out to pass, she would have

seen the wrong way driver sooner and would have had more room to swerve and brake

before coming into contact with the Schiber truck. Based upon the skid marks as

measured by the state patrol, Mr. Oldham opined that Mrs. Ratliff was traveling

between 46 and 53 m.p.h. when she began to skid and that the distance between the
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wrong way vehicle and Mrs. Ratliff had to be at least 180 to 200 feet.

On cross-examination, Mr. Oldham admitted that although his report identified

Mr. Baugh as negligent, the wrong way driver was also negligent and contributed to the

accident. Mr. Oldham also admitted that his calculations established that Mrs. Ratliff

was exceeding the speed limit at the time of the accident, and that her excessive speed

“probably contributed to some degree” to the accident. Counsel for Appellee asked Mr.

Oldham if he had read the report of Sergeant Gray, a Missouri Highway Patrol trooper,

who had prepared the report on the basis of his investigation of the accident. At that

point, counsel for Appellants asked to approach the bench, and there submitted his

objection to any reference to Sergeant Gray’s report on the basis that Sergeant Gray

was not going to be called as a witness. The district court overruled the objection on

the basis that Mr. Oldham had reviewed Sergeant Gray’s report when Mr. Oldham

wrote his report. Counsel for Appellees then asked Mr. Oldham the following:

MR. PLEGGE: Are you aware that Sergeant Gray said in his report that

in summary if Jane Ratliff’s vehicle had been traveling at the

posted speed limit of 40 miles per hour, the driver would

have been able to slow down and move back into the driving

lane missing vehicle number two and the wrong-way driver,

are you aware of that opinion he gave?

MR. OLDHAM: Yes.

In its case-in-chief, Appellee submitted the deposition testimony of the driver of

another vehicle, Mr. Henke. Mr. Henke was traveling behind Ms. Ratliff when the

accident occurred. Mr. Henke testified that he first observed Mrs. Ratliff’s vehicle

when she passed him in the left hand lane. Mr. Henke testified that he was traveling 58

m.p.h. on cruise control, and estimated that Mrs. Ratliff was traveling at approximately

65-70 m.p.h. when she passed him. He testified that after she passed him, he observed

Mrs. Ratliff return to the right hand lane. Shortly thereafter, he observed the Schiber

truck for the first time after he came over a small crest in the road. When he first

noticed the Schiber truck, Mr. Henke testified that its flashers were on,
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and that the truck was coming to a stop. At that time, Mrs. Ratliff was approximately

200 yards behind the truck, still traveling at a rate of 65-70 m.p.h., when she swung into

the left lane to pass the truck. Mr. Henke testified that he also swung into the left lane

to pass the Schiber truck and at that time, saw the wrong way driver. He also observed

that the Schiber truck’s door was open and that the driver was “waiving his hands trying

to stop somebody.” Mr. Henke further testified as follows: 

[Mrs. Ratliff] just turned right, and then just ran right into the left rear bumper of

the truck. And that car bounced. I don’t know how high, but it was higher than

the tanker because I saw the complete under side of that vehicle in the air, and

then bounced back about ten feet.

(Dep. Tr. 16-17). Mr. Henke testified that Mrs. Ratliff did not apply her brakes as she

attempted to move back into the right hand lane, and was therefore traveling at

approximately 65-70 m.p.h. when she hit the Schiber truck.

Appellee also called the driver of the Schiber truck, Gene Baugh, as a witness.

Mr. Baugh testified that at the time of the accident, he was traveling in a construction

zone, and that one or two miles into the construction zone he first saw the wrong way

driver in the northbound left hand lane of Highway 61. He testified that he then looked

into his rear-view mirror and saw Mrs. Ratliff traveling northbound in the left hand lane.

He then put on his flashers, slowed the truck’s speed, and waved his arms out of the

window in an attempt to warn the driver of the vehicle traveling in the wrong lane, or

the driver of the car behind him. Mr. Baugh stated that his flashers were on for

approximately ten seconds before impact, and that the truck was moving slow, and

probably less than five m.p.h.

Appellants argue that the verdict, apportioning 100% fault to Ms. Ratliff, is

against the great weight of the evidence as the jury was presented with evidence which

establishes three contributing factors to the accident - the wrong way vehicle, Mr.

Baugh’s negligence in slowing his truck in the right lane, and Ms. Ratliff’s excessive
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speed. Appellants argue that the evidence presented at trial supports a finding of

negligence per se against Schiber, as Mr. Baugh violated Mo.Rev.Stat. § 304.019.

Section 304.019 provides as follows:

No person shall stop or suddenly decrease the speed of or turn a vehicle from a

direct course or move right or left upon a roadway unless and until such

movement can be made with reasonable safety and then only after the giving of

an appropriate signal in the manner provided herein.

(1) an operator or driver, when stopping, or when checking the speed of

the operator’s vehicle, if the movement of other vehicles may reasonably

be affected by such checking of speed, shall extend such operator’s arm

at an angle below the horizontal so that the same may be seen in the rear

of the vehicle; 

***

(4) The signals herein required shall be given by means of the hand and

arm or by a signal light or signal device in good mechanical condition . .

. however, when a vehicle is so constructed or loaded that a hand and arm

signal would not be visible both to the front and rear of such vehicle then

such signals shall be given by such light or device. 

Every sudden and abrupt stop of an automobile is not, in and of itself, proof of

negligence, “but only that such a stop will constitute negligence if there is no emergency

shown to justify it, and it is made in disregard of the presence of vehicles following so

closely behind that they may be unable to avoid a collision.” Matthews v. Mound City

Cab Co., 205 S.W.2d 243, 248 (Mo.App. 1947). 

Appellee, in opposition to Appellants’ claim of negligence on the part of Mr.

Baugh, presented evidence and argument that Mrs. Ratliff was speeding, and that her

excessive speed was the proximate cause of the accident. Where the speed of a driver

prevented the driver from avoiding a collision, such speed may be the proximate cause

of the accident. Marshall v. Bobbitt, 482 S.W.2d 439, 442 (Mo. 1972).
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We find that substantial evidence exists to support the jury’s finding that Mr.

Baugh was not negligent. In support of their finding that Mr. Baugh did not violate

Mo.Rev.Stat. § 304.019, evidence was presented establishing the existence of an

emergency situation; namely an individual was driving south in the left, northbound lane

of Highway 61. Evidence was also presented in the form of Mr. Henke’s and Mr.

Baugh’s testimony that Mr. Baugh complied with Section 304.019 by slowing or

stopping the truck, turning on the truck’s flashers and by waving his arms out of the

window in response to the emergency situation presented by the wrong way driver. Mr.

Baugh, Trooper Becker and Mr. Henke all testified that there was no paved shoulder

and from this evidence the jury could infer it was reasonable for Mr. Baugh to react as

he did. Appellants argue that Appellee did not rebut the expert opinion of Mr. Oldham,

but the jury was free to accept or reject the expert testimony of Mr. Oldham.

Obviously, the jury rejected Mr. Oldham’s opinion that Mr. Baugh was negligent. 

There is also substantial evidence to support the jury’s finding that Mrs. Ratliff

was 100% negligent. Mr. Henke testified that Mrs. Ratliff was traveling at

approximately 65-70 m.p.h. when she passed Mr. Henke’s vehicle, and that he did not

observe her slowing down as she passed the Schiber truck. Trooper Becker testified

that the speed limit at the site of the accident was 40 m.p.h. Appellants’ expert, Mr.

Oldham, testified that he calculated Mrs. Ratliff’s speed at the beginning of her skid

mark to be 46-53 m.p.h. Mr. Oldham also admitted that Mrs. Ratliff’s excessive speed

contributed to the accident, and that if she had been driving within the speed limit, the

accident would not have been the same. 

From this evidence, a reasonable jury could conclude that Mr. Baugh complied

with Missouri law when he slowed or stopped the truck in response to the wrong way

driver, and that Mrs. Ratliff’s speed was the proximate cause of the accident.
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III.

Appellants also assert as an additional basis for a new trial, that the district court

erred in allowing counsel to cross-examine Mr. Oldham as to Sergeant Gray’s report.

Appellants argue that because Sergeant Gray did not testify at trial, discussion of the

report he created was impermissible hearsay. 

Generally, a trial court has broad discretion in the matter of regulating cross

examination, and the exercise of such discretion will not be reversed absent an abuse

of that discretion. Palmer v. Krueger, 897 F.2d 1529 (10 Cir. 1990). Once expert

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testimony has been admitted, the rules of evidence then place “the full burden of

exploration of facts and assumptions underlying the testimony of an expert witness

squarely on the shoulders of opposing counsel’s cross-examination. Newell Puerto Rico,

Ltd. v. Rubbermaid Inc., 20 F.3d 15, 20 (1 Cir. 1994). It is thus the burden of

st

opposing counsel to explore and expose any weaknesses in the underpinnings of the

expert’s opinion. Id. at 21 (citation omitted). 

 The district court allowed counsel to cross-examine Mr. Oldham with regard to

Sergeant Gray’s report because Mr. Oldham had read the report prior to preparing his

own report. (Tr. 70). Appellee asserts a similar issue was addressed in Vodusek v.

Bayliner Marine Corp., 71 F.3d 148 (4 Cir. 1995). In Vodusek, the trial court had

th

allowed counsel to cross-examine a testifying expert as to another non-testifying

expert’s opinion. On appeal, the Fourth Circuit held that the trial court did not abuse

its discretion in allowing such examination, even though the other expert’s opinion was

not placed into evidence, where the testifying expert had reviewed such other opinion

and had rejected it. Id. at 157. Appellants attempt to distinguish Vodusek by arguing

that Sergeant Gray was not an expert, nor could he be qualified as one, and that Mr.

Oldham did not testify that he relied on or rejected Sergeant Gray’s opinions. 

Appellants’ attempt to distinguish Vodusek is not persuasive. Whether or not
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Sergeant Gray was an expert is not the relevant inquiry. What is relevant is whether

Sergeant Gray’s report is a document of the type reasonably relied upon by accident

reconstructionists in forming their opinions. Fed.R.Evid. 703. Given the fact that Mr.

Oldham reviewed both Sergeant Gray’s and Trooper Becker’s reports, it appears such

documents are of the type generally relied upon. In addition, while Mr. Oldham did not

specifically testify that he rejected Sergeant Gray’s conclusion, such testimony was not

necessary. Clearly, Mr. Oldham rejected Sergeant Gray’s conclusion that Mrs. Ratliff

’s negligence caused the accident. Although counsel, on cross-examination, did not ask

Mr. Oldham why he rejected Sergeant Gray’s opinion, Mr. Oldham was given the

opportunity to do so on re-direct. Trial Tr. 71-72. 

We believe that the district court did not err by permitting counsel to crossexamine Mr. Oldham concerning the report of Sergeant Gray. Mr. Oldham admitted

that he had read the report prior to submitting his own report. Therefore counsel was

free to cross-examine the expert as to all documents he reviewed in establishing his

opinion. Newell Puerto Rico, Ltd. 20 F.3d at 21. 

IV.

Appellants also argue they are entitled to a new trial because the district court

limited counsel to only twenty minutes for voir dire. Such limitation, Appellants argue,

prevented them from effectively and intelligently exercising their peremptory challenges

and challenges for cause. 

Voir dire was initially conducted by the district court, asking the entire panel the

following questions: whether anyone knew the parties or their counsel, whether anyone

knew any of the potential witnesses, whether anyone had served previously on a jury,

whether they or any relatives had been involved in litigation as a party to a lawsuit,

whether any life experience would prevent anyone from being fair to the parties,

whether anyone had any prejudice against a plaintiff seeking money damages, whether
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anyone had a problem with the burden of proof as a preponderance of the evidence, and

whether anyone would hold it against an attorney for making an objection. The district

court then allowed counsel for the parties twenty minutes each to conduct further voir

dire.

Courts have broad discretion in determining what questions will be asked during

voir dire. Labbee v. Roadway Express, Inc., 469 F.2d 169, 172 (8 Cir. 1972).

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“However, the substance of voir dire examination is subject to the right of the parties

to have an impartial jury and the questioning must in general attempt to preserve that

right.” Id. (citation omitted). The record establishes no objection to the way in which

voir dire was conducted. Absent an objection, the reviewing court will only review for

plain error to determine if the limitation was so prejudicial as to cause a miscarriage of

justice. Fleming v. Harris, 39 F.3d 905, 908 (8 Cir. 1994). “Under plain error review, th

an error not identified by a contemporaneous objection is grounds for reversal only if

the error prejudices the substantial rights of the [Appellants] and would result in a

miscarriage of justice if left uncorrected.” Id. Given the questions asked of the jury

panel by the district court, and the questions asked by counsel, we find no plain error.

V.

At trial, the district court precluded any opinion testimony from Mr. Oldham that

Mr. Baugh was negligent because he did not leave the roadway and pull off on to the

shoulder. In their offer of proof to the district court, Appellants provided that if allowed

to testify, Mr. Oldham would state that had Mr. Baugh “moved his vehicle to the right

even as little as 5 feet and certainly if he had gotten his vehicle completely off the right

lane . . . the accident could have been avoided and, yes, it would have been negligence

for the tractor trailer driver to have failed to have done that.” (Tr. 5). The basis for

the district court’s ruling was that under Missouri law there is no such duty. (Tr. 4-5).

Appellants argue that Missouri law does indeed impose such a duty and refers to

Missouri model instruction 17.04 - which provides that a motorist has a duty
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to swerve, if there was enough time to do so to avoid an accident. 

Missouri law does impose a duty on motorists to “stop, swerve, slacken speed

or sound a warning when he or she knows or by the exercise of the highest degree of

care could have known that there was a reasonable likelihood of collision in sufficient

time to take such preventative measures.” Hollis v. Blevins, 927 S.W.2d 558, 564 (Mo.

Ct. App. 1996). The duty to swerve arises when a driver knew or should have known

the collision would likely occur. Id. 

Appellee does not dispute that, under certain circumstances, a driver has a duty

to swerve to avoid a collision. Appellee argues, however, that in this case, the issue is

not whether Mr. Baugh could have swerved to avoid the accident between Mrs. Ratliff

and the truck. Rather, the issue is whether Mr. Baugh should have driven off of the

highway onto the shoulder to either avoid a collision between the truck and Mrs. Ratliff

or a collision between the wrong way driver and Mrs. Ratliff. It is Appellee’s position

that driving onto the shoulder does not constitute “swerving.”

 “Swerve” is defined as: [t]o turn aside abruptly from a straight or direct course.

WEBSTER’S II, NEW RIVERSIDE DICTIONARY (Office Ed. 1984). Consistent

with this definition, Missouri case law on the duty to swerve addresses factual situations

in which the evasive conduct contemplated is an abrupt change of direction by one party

to an accident. In Hollis, an accident occurred when a driver in the eastbound lane

abruptly entered a lane of westbound traffic, and was hit by a car traveling westbound.

Evidence at trial established that at the time the eastbound driver swerved into the

westbound lane, the two cars were approximately four car lengths apart. Id. at 565.

One of the issues at trial was whether the westbound driver had the time and ability to

swerve, to avoid the accident. These facts suggests quick, abrupt evasive action would

have been necessary to avoid collision. Similarly, in Morgan v. Toomey, 719 S.W.2d

129 (Mo. Ct. App. 1986), the defendant was driving through a parking lot when he hit

plaintiff, who was standing next to a car. Plaintiff had argued
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that defendant had a duty to swerve to avoid the accident, and his failure to swerve was

negligent. The evidence at trial established that at the time it became apparent that the

plaintiff would be hit by defendant’s car, there was only two feet separating them. Id.

at 137. These facts also suggest that the evasive action considered had to have been

quick and abrupt. 

Hollis and Morgan also illustrate that the duty to swerve is triggered only 

where the driver perceives that swerving will assist him or her in avoiding a collision,

not to assist others from colliding. 

In this case, the Appellants argue that Mr. Baugh should have moved the truck

over five feet or onto the shoulder upon seeing the wrong way driver and Mrs. Ratliff

on a potential collision course. We agree that these facts do not trigger the duty to

swerve on behalf of Mr. Baugh. Accordingly, we find that the district court did not

abuse his discretion in precluding Mr. Oldham from testifying that Mr. Baugh had a duty

to drive onto the shoulder to avoid a collision between the wrong way driver and Mrs.

Ratliff. 

VI.

Finally, Appellants argue a new trial is warranted because the district court erred

in allowing counsel for Appellee, during his closing argument, to inject his personal

opinion as to the outcome of the case, improperly raised an insurance question regarding

the unidentified wrong way driver, and argued that Appellants had a pecuniary motive

for bringing the action against Appellee. Appellants argue such statements were

prejudicial and warrant a new trial.

“Trial courts are invested with broad discretion in controlling closing arguments,

and we will reverse only if the trial court abused that discretion.” United States v.

Macklin, 104 F.3d 1046, 1049 (8 Cir. 1996)(citation omitted). Where an issue is not th
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properly preserved on appeal, we will review only for plain error. Dillon v. Nissan

Motor Co., Ltd., 986 F.2d 263, 269 (8 Cir. 1993). th

The challenged portion of the closing argument is as follows:

MR. PLEGGE: Secondly, we have the wrong way driver. There’s no

question that driver was going the wrong way. Mr. Oldham

told you there’s no doubt that the driver was negligent and

that negligence contributed to cause the accident. So we

have two drivers who admittedly were negligent and they sue

Mr. Baugh who in my opinion I think the evidence supports

was the only driver that didn’t do anything wrong.

Now ask yourselves, “Why did they do this?” Well, I think

the evidence is clear because you can’t sue a driver who you

don’t know. You can’t sue the unidentified driver. You

can’t make any money doing that. You can’t sue.

MR. MARKS: Your Honor, this case does not involve the unidentified

driver and there are no instructions concerning that and this

is improper argument.

THE COURT: Overruled. It is argument. Overruled.

(Tr. 149).

Counsel are given wide latitude in arguing inferences from the evidence

presented. Titsworth v. Powell, 776 S.W.2d 416, 422 (Mo. Ct. App. 1989). At the

same time, counsel must not “go beyond the evidence and issues drawn by the

instructions or urge prejudicial matters or a claim or a defense which the evidence and

issues drawn by the instructions do not justify . . .” Id. “In ruling on the propriety of

final argument, the challenged comment must be interpreted in light of the entire record

rather than in isolation.” Id.
Appellants assert that they can, and have, sought uninsured motorist coverage. 4

So, while there is truth to the fact that you cannot sue an unidentified driver, it is not

correct to state that “you can’t get money” from an unidentified driver.

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Appellants did not object, at trial, to the statement in which counsel injected his

opinion as to Mr. Baugh’s negligence, therefore the issue can only be reviewed for plain

error. Dillon, 986 F.2d at 269. In this case, the evidence supports the argument that

Mr. Baugh was not negligent. We therefore find no plain error in counsel injecting his

personal opinion that Mr. Baugh was not negligent in this case.

We also find that the trial court did not abuse its discretion in permitting counsel

to argue that one cannot sue an unidentified driver. While counsel’s statements may not

have been entirely correct , it was argument that was supported by the record. In

4

addition, the statement did not prejudice Appellants because their own expert prepared

a report opining that only Mr. Baugh was negligent, but the expert testified on crossexamination that the negligence of the wrong way driver was “self-evident.” (Tr. 59).

See Shelley v. St. Louis Public Service Co., 279 S.W.2d 182 (Mo. App.

1955)(argument in defendant’s closing that it was unfair not to sue one driver involved

in accident, was not prejudicial where plaintiff repeatedly referred to the absent driver

as being ‘probably’ negligent, and a ‘no good so-and-so’). 

Finally, we find the district court did not abuse its discretion in allowing counsel

for Appellee to argue that money was the motive for suing Schiber. 

Improper statements that are addressed by the objecting party, which limit or eliminate

any prejudice, will not justify reversal. Throckmorton v. St. Louis-San Francisco Ry

Co., 179 F.2d 165, 170 (8 Cir.) cert. denied 339 U.S. 944 (1950). Appellants

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addressed counsel’s statements regarding any pecuniary motive in their rebuttal. (Tr.

161) .
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The order of the district court denying Appellants’ motion for a new trial is

affirmed.

A true copy.

Attest:

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