The HONORABLE MICHAEL J. DAVIS, U nited States District Judge for the 1 District of Minnesota, sitting by designation. -1- 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 surv iving children of Jane Ratliff. Appellants commenced this action in the United States District Court, Eastern District of M issouri, alleging that Gene Baugh, an employee of Appellee Schiber Truc k Company, Inc. (“Schiber”), wrongfully cause d the death of their mother. On April 22,T he Honorable E. Richard Webber, United States District Court, Easter n 2 District of Missouri, Northern Division. The re is a factual dispute as to whether Mr. Baugh actually had stopped th e 3 truck at the time of the accident, or whether the truck was still moving, albeit at only 5 m.p.h. -2- 1997, a jury returned a verdict finding deced ent Mrs. Ratliff 100% at fault and Schiber 0% at fault for the auto accident that caused her death. After the jury rendered it s ver dict, Appellants moved the district court for a new trial. By written order, th e distri ct 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 als o unpersuaded that a new trial was warranted because of asserted errors commit ted by the district court. Appellants now appeal the district court’s denial o f their motion for a new trial.
I. On July 28, 1995, Jane Ratliff was driving a car, traveling northbound in th e right lane of H ighway 61, a four lane highway in Pike County, Missouri. Her brother , Robert Sel im, was a passenger in the car. Ahead of her in the right lane was a commercial t anker truck owned by Schiber and driven by one of its employees, Gene Baugh. As she approach ed the Schiber truck, Mrs. Ratliff entered into the left lane to pa ss it. Once she moved into the left lane, she observed another vehicle, in the same left lane, travelin g 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 sub stantially slowed down, the truck in the right lane. As a result, when Mr s. Ratliff attempted to return to the right lane, she collided 3 with the truck, and suffered fatal injuries. Appellants commenced this wrongf ul death action against Schiber, alleging that-3-

Schiber proximately caused or contributed to the death of Mrs. Ratliff, because of the negligence of Gene Baugh in stopping t he truck in the right lane of the highway. In its defen se, Appellee argued Mr. Baugh was not negligent, and that in fact the acciden t was caused as a res ult 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 t he accident between Mrs. Ratliff and Mr. Baugh. The jury returned their verdict, finding Mrs. Ratliff 100% at fault.
II.
A verdict w ill 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 th e th verdi ctis against the clear weight of the evidence or to prevent injustice. Fireman’ s Fund Ins. C o. v. Aalco Wrecking Co., Inc. , 466 F.2d 179, 186 (8 Cir. 1972) cert
. th denied Aalco Wrecking Co., Inc. v. Fireman’s Fund Ins. Co. , 410 U.S. 930 (1973)

. Courts cannot reweigh the evidence and s et aside a jury verdict because the jury could ha ve drawn different conclusions or inferences or because the court feels that othe r results are more reasonable. Id. (citing Tennant v. Peoria and Pekin Union Ry , 32 1 U.S. 29, 35 (1944)). Great deference is accorded the district court ruling on a motion fornew t rial, 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 truc k driver that was also traveling northbound on Highway 61 on the date of th e accident. Ms. Freeman testified that she was not too far ahead of Mr. Baugh and Mrs. Rat liff when she noticed a cream colored Ford Fairmont driven by an older woma n 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 acciden t and stopped to phone for the police and an ambulance.-4-

Mrs. Ratliff’s brother, Robert Selim, also testified at the trial as a witness fo r Appellants. Mr. Selim testified that he and his sister were traveling to Des Moines , Iowa for a fa

mily 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 Highwa y Patrol, as a witness at trial. Trooper Becker was on duty the day of the accident and
was calle d to the scene. Because Mrs. Ratliff’s car had left skid marks, he an d Corporal Murphy took measurements at the accident scene to determine placement and dimension s of skid marks, gouge marks and the final resting places of the Ratlif f 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 wron g way driver. Trooper Becker also testified regarding Missouri statute section 304.019, whichprovides, in part, that “no person shall stop or suddenly decrease the speed or tur n a vehicle from direct course or move right or left upon a roadway until that movement can be made with reasonable safety.” Troop er Becker also testified that the speed limit at the scene was 40 m.p.h., as it was a construction zone.
Finall y, Appellants’ expert in the field of accident reconstruction, Franci s Old ham, testified that in his opinion, the accident was primarily caused because Mr

. Baughstopped 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 oc curred because Mrs. Ratliff would not have had to pull out to pass the truck, or i f 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 co ming into contact with the Schiber truck. Based upon the skid marks a s measuredby the state patrol, Mr. Oldham opined that Mrs. Ratliff was travelin g between 46 and 53 m.p.h. when she began to skid and that the distance between the-5-

wrong way vehicle and Mrs. Ratliff had to be at least 180 to 200 feet.
Oncross-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 spee d limit at the time of the accident, and that her excessive speed “probably contributed to some degree” to the accident. Counsel for Ap pellee asked Mr. Oldham if he had read the report of Serge ant Gray, a Missouri Highway Patrol trooper, who had prepared the report on the basis of his investigation of the accident. At tha t poi nt, counsel for Appellants asked to approach the bench, and there submitted hi s ob jection to any reference to Sergeant Gray’s report on the basis that Sergeant Gra y 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. Oldha m 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 vehi cle had been traveling at the posted speed limit of 40 miles per hour, the driver woul d have been able to slow down and mo ve back into the driving lane missing v ehicle number two and the wrong-way driver, are you aware of that opinion he gave? MR. OLDHAM: Yes. In its case-in-chief, Appe llee submitted the deposition testimony of the driver of
an other vehicle, Mr. Henke. Mr. Henke was traveling behind Ms. Ratliff when th e accident occ urred. Mr. Henke testified that he first observed Mrs. Ratliff’s vehicl e when she passed him in the left hand lane. Mr. Henk e 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 f or the first time after he came over a small crest in the road. When he firs t noticed the Schiber truck, Mr. Henke testified that its flashers were on,-6-

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 th e 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 “waivin g his hands trying to stop somebody.” Mr. Henke further testified as follows: [Mrs. Ratliff] just turned right, and the n just ran right into the left rear bumper of the truck. And that car bo unced. 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 applyher brakes as she attempted to move back into the right hand lane, and was therefore traveling a t 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 northboun d in the left hand lane. He then put on his flashers, slowed the truck’s speed, and waved his arms out of th e 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 fo r approximate lyten seconds before impact, and that the truck was moving slow, an d probably less than five m.p.h. Appe llants argue that the verdict, apportioning 100% fault to Ms. Ratliff, i s against the great weight of the evi dence 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 excessiv e-7-

speed. App ellants argue that the evidence presented at trial supports a finding o f negligence per se against Schiber, as Mr. Baugh violated Mo.Rev.Stat. § 304.019. Section 304.019 provides as follows: No perso n 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 suc h 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 operat or’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 s ignals herein required shall be given by means of the hand an d arm or by a signal light or signal device in good mechanical condition . . . however, when a vehicle is so constru cted 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 i t, and it is made in disregard of the presence of vehicles following so closely behind that they may be una ble to avoid a collision.” Matthews v. Mound City Cab Co. , 205 S.W.2d 243, 248 (Mo.App. 1947). Appellee, i n opposition to Appellants’ claim of negligence on the part of Mr

. Baugh, pr esented evidence and argument that Mrs. Ratliff was speeding, and that her excessive speed was the p roximate 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).-8-

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 violat e Mo.Rev.St at. § 304.019, evidence was presented establishing the existence of a n 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 o r stopping the truck, turning on the truck’s flashers and by waving his arms out of th e 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 shoulde r 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 rebu t the expert opinion of Mr. Oldham, but t he 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.
Ther e is also substantial evidence to support the jury’s finding that Mrs. Ratliff
was 100% n egligent. Mr. Henke testified that Mrs. Ratliff was traveling a t approximately 65-70 m.p .h. when she passed Mr. Henke’s vehicle, and that he did not ob serve her slowing down as she passed the Schiber truck. Trooper Becker testifie d that the speed limit at the site of the accident was 40 m.p.h. Appellants’ expert, Mr

. Oldh am, testified that he calculated Mrs. Ratliff’s speed at the beginning of her ski d 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.
Fro m this evidence, a reasonable jury could conclude that Mr. Baugh complied with Misso uri 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.-9- III. Appellants also assert as an additional bas is for a new trial, that the district court
e r red in allowing counsel to cross-examine Mr. Oldham as to Sergeant Gray’s report. Appe llants argue that because Sergeant Gray did not testify at trial, discussion of th e report he created was impermissible hearsay. Generally, a trial court has broad discretion in the matter of regulating cros s 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 exper t th testimony has been admitted, the rules of evidence then place “the full burden o f explora tionof facts and assumptions underlying the testimony of an expert witnes s 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 o f st opposin g counsel to explore and expose any weaknesses in the underpinnings of th e expert’s opinion. Id. at 21 (citation omitted).
The district court allowed counsel to c ross-examine Mr. Oldham with regard to Sergeant Gra

y’s report because Mr. Oldham had read the report prior to preparing his
own r eport. (Tr. 70). Appellee asserts a similar issue was addressed in Vodusek v

. BaylinerMari ne Corp. , 71 F.3d 148 (4 Cir. 1995). In Vodusek , the trial court ha d th allowe d counsel to cross-examine a testifying expert as to another non-testifyin g expert’s opinion. On appeal, the Fourth Circuit held that the trial court did not abuse its discretion in allowing such examinat ion, even though the other expert’s opinion was not placed into evidence, where the testifying expert had reviewed such other opinion and had rej ected it. Id. at 157. Appellants attempt to distinguish Vodusek by arguing that Sergeant G ray 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-10-

Sergeant G ray was an expert is not the relevant inquiry. What is relevant is whethe r Sergeant Gray’s report is a document of the type reasonably relied upon by acciden t 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 ad dition, while Mr. Oldham did not specifically testify that he rejected Serg eant 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. Ol dham why he rejected Sergeant Gray’s opinion, Mr. Oldham was given th e opportunity to do so on re-direct. Trial Tr. 71-72.

We believe that the district court did not err by permitting counsel to cross

exam ine Mr. Oldham concerning the report of Sergeant Gray. Mr. Oldham admitte d 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 hi s 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 exercisi ng 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 t he parties or their counsel, whether anyone knewany 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 an y life experience would prevent anyone from being fair to the parties , whether anyone had any prej udice against a plaintiff seeking money damages, whether-11-

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 deter mining what questions will be asked during voirdire. Labbee v. Roadway Express, Inc. , 469 F.2d 169, 172 (8 Cir. 1972)

. th “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. (citat

ion omitted). The record establishes no objection to the way in which voir dire was conducted. Absent an ob jection, 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 bythe district court, and the questions asked by counsel, we find no plain error.
V. At trial, the district court precluded any op inion 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, Appell ants provided that if allowed to testify, Mr. O ldham would state that had Mr. Baugh “moved his vehicle to the right even as little as 5 feet and cert ainly 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 dis trict court’s ruling was that under Missouri law there is no such duty. (Tr. 4-5). Ap pellants argue that Missouri law does indeed impose such a duty and refers t o Missouri model instruction 17.04 - which provides that a motorist has a duty-12-

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 do es not dispute that, under certain circumstances, a driver has a duty to swerve to avoid a collis ion. 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 t ruck. Rather, the issue is whether Mr. Baugh should have driven off of th e highway onto the shoulder to either avoid a collisio n between the truck and Mrs. Ratliff or a collision between the wron g 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). Consisten t with this definition, Missouri case law on the duty to swerve addresse s factual situations in which the evasive conduct contemplated is an abrupt change of dire ction by one party to an acciden t. In Hollis , an accident occurred when a driver in the eastbound lan e abruptly entered a lane of we stbound traffic, and was hit by a car traveling westbound. Evidence at trial established that at the time the eastbound driver swerved into th e westbou ndlane, the two cars were approximately four car lengths apart. Id. at 565

. One of the issue s 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 ne cessary 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-13-

that defendant had a duty to swerve to avoid the ac cident, 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 bee n quick and abrupt.
Hollis and Morgan also illustrate that the duty to swerve is triggered only wh ere the driver perceives that swerving will assist him or her in avoiding a collision, not to assist others from colliding.

Inthis 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 t o swerve on behalf of Mr. Baugh. Accordingly, we find that the district court did no t 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 warr anted because the district court erred in all owing counsel for Appellee, during his closing argument, to inject his persona l opinion as to the outcome of the case, improperly raised an insurance qu estion regarding the unidentifie d wrong way driver, and argued that Appellants had a pecuniary motive for bringing the action against Appellee. Appellants argue such statements wer e prejudicial and warrant a new trial.
“Trial courts are invested with broad dis cretion 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-14-

properly p reserved on appeal, we will review only for plain error. Dillon v. Nissa n Motor Co., Ltd. , 986 F.2d 263, 269 (8 Cir. 1993). th The challenged portion of the closing argument is as follows:
MR. PLEGGE: Sec ondly, we have the wrong way driver. There’s n o

question that dr

iver was going the wrong way. Mr. Oldham told you there’s no doubt that the driver was negligent an d tha t negligence contributed to cause the accident. So w e 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 your selves, “Why did they do this?” Well, I think the evidence is clear because yo u can’t sue a driver who you don’t know. You can’t sue the unidentified driver. Yo u can’t make any money doing that. You can’t sue. MR. MARKS: You r

Honor, this case does not involve the unidentifie d dr iver and there are no instructions concerning that and this is improper argument. THE COURT: Overruled. It is argument. Overruled. (Tr. 149). Couns el are given wide latitude in arguing inferences from the evidenc e presen ted. Titsworth v. Powell , 776 S.W.2d 416, 422 (Mo. Ct. App. 1989). At th e same time, counsel must not “go beyond the evidence and issues drawn by th e 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. -15- 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 neglige nt. 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 coun sel’s statements may not have been entirely correct , it was argument that was supported by the record. I n 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 cross

examination tha

t 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, wa s 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 co urt did not abuse its discretion in allowing counsel for Appellee to argue that money was the motive for suing Schiber. Improper statements that are add ressed by the objecting party, which limit or eliminate any prejudice, will not justify reversal. Throckmorton v. St. Louis-San Francisco R y Co. , 17 9 F.2d 165, 170 (8 Cir.) cert. denied339 U.S. 944 (1950). Appellant s th addressed counsel’s statements regarding any pecuniary motive in their rebuttal. (Tr. 161) .-16-

The order of the district court denying Appellants’ motion for a new trial i s affirmed.

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