The Honorable Andrew W. Bogue, United States District Judge for the District 1 of South Dakota, sitting by designation. The Honorable Fernando J. Gaitan, United States District Judge for the Western 2 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2765

___________ Cheryle Ann Scheerer; * John Scheerer, * * Appellants, * * Appeal from the United States v. * District Court for the * Western District of Missouri Hardee’s Food Systems, Inc., * * Appellee. *

___________ Submitted: February 12, 1998 Filed: July 9, 1998

___________ Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE, District Judge. 1

___________ McMILLIAN, Circuit Judge. C h eryle Ann Scheerer and her husband, John Scheerer, (the Scheerers) appeal from a final judgment entered in the United States District Court for the Western 2-2-

District of Missouri, in favor of Hardee’s Food Systems, Inc. (Hardee’s), following a second tria l in their action for damages resulting from injuries sustained by Mrs

. Scheerer when she slipped and fell in the parking lot of a Hardee’s restaurant in Lee’s Summit, Missouri. This is the thir d time this case has come before us. We previously reversed the district court’s grant of summary judgment for Hardee’s, Scheerer v

. Hardee’s F ood Systems , 16 F.3d 272 (8 Cir. 1994) ( Scheerer I ) (reversing an d th remanding for trial), and thereafter reversed a judgment f or Hardee’s following the first jury trial, id. , 92 F.3d 702 (8 Cir. 1996) ( Scheerer II ) (reversing and remanding for a th new trial). At the second tria l, the jury returned a verdict for Hardee’s upon assigning 0% fault to Hardee’s and 0% fault to Mrs. Scheerer. In the present appeal, th e Scheerers argue that the district court (1) erred in admitting certain t estimonial evidence related to the subject matter of an inadmissible document, (2) erred in instructing the jury, and (3) abused its discretion in allowing cross-ex amination and closing arguments which tended to impugn the Scheerers’ counsel. Upon careful review, we now affirm.
Jurisdiction
Thi s case was removed from state court to federal district court pursuant to 28 U.S.C

. § 1441. Jurisdiction in the district court was proper based upon 28 U.S.C

. § 1332. The notice of appeal was timely filed pursuant to Fe d. R. App. P. 4(a), and we have jurisdiction over the present appeal pursuant to 28 U.S.C. § 1291.
Discussion
In Scheerer II , we held that the district court erred at the first trial in admitting into evidence as a business report an incident report prepared in anticipation o f litigation by a non-witness employee of Hardee’s. 92 F.3d at 705-07. The inciden t report contained a statement attributed to a “friend” of Mrs. Scheerer that the cause of the accident was Mrs. Scheerer’s “slick shoes.” Id. at 705. Pr ior to the second trial, the district court entered an order precluding Hardee’s from mentioning the incident-3-

repo rt at any time before or during the trial, while in the presence of the jury o r pote ntial jurors, without prior permission from the district court. At trial, counsel for Hardee’s cross-examined the “friend,” Mrs. Fann, about her observations whil e assisting Mrs. Scheerer at the time of the accident. Counsel asked the followin g qu estion: “And you looked around and you said it must have been your slick shoes , didn’t you?” Appellants’ Appendix, Vol. 2, at 289 (trial transcript). Ove r the objection of counsel for the Scheerers , the district court allowed the question and admitted Mrs. Fan n’s answer, in which she admitted making the “slick shoes” comment. It i s undisputed that the incident report was not mentioned at the second trial. Thus, all that is at issue in this appeal is Mrs. Fann’s testimony about her own contemporaneou s “slick shoes” comment (which had been recorded in the inadmissible report).
The Scheer ers argue that the district court erred in permitting Mrs. Fann t o an swerthe “slick shoes” question. According to the Scheerers, “Hardee’s manage d to ge t through the ‘back door’ (cross-examining Mrs. Fann about her purporte d conclusions about what caused the slip and fall) what it could not get in through th e ‘front door’ (admission of the incident report).” Id. at 13. The Scheerers apparently do not dispute the propositions that the hearsay rule allows a witness to testify about his or her own prior statements, Fed. R. Evid. 801(c), or that an att orney ordinarily may ask on cros s-examination whether the witness previously made a particular statement under oath, Fed. R. Evid. 613. They argue, however, that – not only did Mrs. Fan n never actually admit at the first trial that she had made the “s lick shoes” comment – but also t hat there was no evidence that she had ever actually looked at the soles of Mrs. Scheerer’s shoes or personall y knew about them. Therefore, they contend, Mrs. Fann shouldnot have been “forced to testify as to her opinion on the ultimate issue in this case – the cause of Mrs. Scheerer ’s slip and fall,” because it violated Fed. R. Evid.Rule 701 provides: 3 If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions o r inferences which are (a) rationall y based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Rule 602 provides in relevant part: 4 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding t hat the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not , consist of the witness’ own testimony. Mrs. Fann testified at the first trial as follows. 5 Question: “Were you the one, Mi ss Fann, that decided or stated after she fell that it must have been her slick shoes?” Answer: “That was the conclusion I ma de, the comment, the fact that she had on black patent leather shoes.” Appellants’ Appendix, Vol. 1, at 102 (trial transcript).

-4- 701 and Fed. R. Evid. 602. Brief for Appellants at 15-25. 3 4 To begin, although not necess arily required under Fed. R. Evid. 613, the fact of the matter is that Mrs. Fann did essentially testify at th e first trial that she had made the “slick shoes” comment. More i mportantly, Mrs. Fann’s testimony regarding her own 5 observations at the time of the acc ident, which Hardee’s was able to elicit from her on
cross-e xamination, was relevant to rebut through reasonable inference the Scheerers’ evidence suggest

ing that Mrs. Scheerer slipped because of water, oil, or degreaser on-5-

the pa rking lot. See Fed. R. Evid. 401. Because Mrs. Fann’s contemporaneou s statement was rationally based on her own first-hand perceptions an d reasonably would have aided the jury’s understanding of a fact in issue (i.e., whet her there was water, oil, or deg reaser on the parking lot), it was not inadmissible under Fed. R. Evid. 602 o r Fed. R. Evid. 701. Furthermore, because Mrs. Fann’s contemporaneous statement of opi nion was “otherwise admissible,” it was not objectionable merely because i t embraced an ultimate issue to be decided by the trier of fac t. See Fed. R. Evid. 704(a).
We next turn to the Scheerers’ claims of instructional error at the second trial. In Scheerer II , we anticipated that some of th e instructional issues raised in that appeal would recur f

ollowing our remand and thus addressed them at that time. We held , among other things, that the district court did not err in instructin g the jury on the issues of whether an “open and obvious” danger existed in the parking lot or whether Mrs

. Scheerer fa

iled to keep a proper lookout and therefore may be comparatively at fault. 92 F.3d at 709-10. In the present appeal, the Scheerers again argue that the distric t court committed reversible error in giving the same “open a nd obvious” instruction, the same “proper lookout” instruction, and the same comparative fault instruction

. Alternatively, the Scheerers argue that the district court erred by giving thos e inst ructions together

because they are logically inconsistent. The Scheerers furthe r argue that it was reversible err or for the district court to use, in Instruction No. 10, the word “accident” instead of “incident” because “accident” implies a lack of any fault, whereas “incident” does not. See Instruction No. 10 (“The mere fact that an accident happened , standing alone, does not permit the jury to draw the inference that th e accid ent was caused by anyone’s negligence.”) (set forth in Addendum to Brief fo r Appellants at 6).
The Scheerers have made no showing that the evidence relevant to th e challenged instructions wa s materially different at the second trial. We therefore hold that the Scheerers’ legal arguments regarding Instructions Nos. 8, 9, and 12 ar e foreclosed under the “law of the case” doctrine because the exact same issues were-6-

raised on appeal and were decided favorably to Hardee’s in Scheerer II , 92 F.3d a t 709-10. See B ethea v. Levi Strauss & Co. , 916 F.2d 453, 456-57 (8th Cir. 1990 ) (distric t court is bound on remand to obey, without re-examining, court of appeals ’ mandate in same case). As to Instruction No. 10, we simply find no merit to th e Scheerers’ argument. When Instruction No. 10 is read in its entirety and in conjunction with the other jury instructions, it is simply un reasonable to construe the jury charge as
a whole as indicating that the jury should find no fault. See, e.g. , Dupre v. Fru-Co n Eng’g, Inc. , 112 F.3d 3 29, 335 (8th Cir. 1997) (when reviewing claim of instructional error, ins tructions are considered in their entirety to determine whether the charge, as a whole, fairly and adequately submits the issues to be tried). Accordingly, we hol d that the district court did not commit reversible error in its jury instructions. Finally, t he Scheerers argue that the district court abused its discretion b y allowing defense counsel to insinuate, in cross-examination of the Scheerers’ witnesses and in clo sing argument, that the Scheerers’ counsel may have suborned perjury o r encourag ed fabrication. In response, Hardee’s maintains that defense counsel di d noth ing wrong in highlighting, for example, the significant changes over time in th e testimony given by Mrs. Scheerer and the Scheerers’ witnesses and in pointing ou t logical inferences to be drawn therefrom.
No twithstanding the unflattering light that was shed upon the Scheerers ’ attorney, we hold that it was within the district court’s discretion to permit th e quest ions and arguments to which the Scheerers now object because they addresse d matters concerning the credibility of witnesses. Moreover, the questions and arguments by lawyers are not evidence, and we assume the jury was so instructed. Finally, th e arguments a

nd inferences raised by counsel for Hardee’s were certainly matters upon which counsel for the Scheerers could have responded through redirect examinatio n and rebut tal closing argument. Thus, upon careful review, we hold that the distric t court did not abuse its discretion in allowing cross-examination and closing arguments which tended to impugn the Scheerers’ counsel.-7- Conclusion For the reasons stated, the judgment of the district court is affirmed. In addition, the motio ns filed by Hardee’s to dismiss the present appeal as frivolous and fo r sanctions are denied. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.