Submitted January 13, 2015
[Copyrighted Material Omitted]
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For Luther Stanley, Plaintiff - Appellant: Charles Armbruster, III, Michael Todd Blotevogel, ARMBRUSTER & DRIPPS, Alton, IL.
Cottrell, Inc., Defendant - Appellee: Daniel Carpenter, Amy Lorenz-Moser, Jeffery Thomas McPherson, Thomas Blumeyer Weaver, ARMSTRONG & TEASDALE, Saint Louis, MO; Michael P. Downey, DOWNEY LAW GROUP, Saint Louis, MO.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
MURPHY, Circuit Judge.
In the course of his work for Allied Systems, Inc., Luther Stanley fell from the upper deck of a flattop trailer manufactured by Cottrell, Inc. As a result of injuries to his back and left leg, Stanley could thereafter no longer work as a car hauler. He sued Cottrell for negligence, strict liability, breach of warranty, and outrage, alleging that the company could and should have installed additional fall protections on the trailer. The case was tried to a jury which found for Cottrell. Stanley moved for a new trial, arguing that the district court erred by refusing to allow the testimony of two rebuttal witnesses and by its instructions to the jury on his negligence and strict liability claims. Stanley also objected to the bill of costs submitted by Cottrell. The district court denied his motion for a new trial and awarded Cottrell $11,171.92 in costs, and Stanley appeals. We affirm the judgment and the award of costs.
From 1978 to 2008 Stanley worked as a car hauler for Allied Systems, Inc., an auto transportation fleet. In addition to transporting cars, he was responsible for loading and unloading the cars from his trailer.
On September 28, 2008 Stanley attempted to unload a car from the upper deck of a 55 foot, eight car trailer manufactured by Cottrell. He lifted himself onto the upper deck railing of the trailer, moved sideways across the railing, and placed his right hand on the trunk of the car. As he reached for the car door with his left hand, he lost his hold and fell, landing on his back and left leg. Although his back was not seriously injured from the fall, his leg has been operated on seven times since the fall, resulting in $642,797.38 in medical costs.
Stanley sued Cottrell in Missouri state court, raising claims for negligence, strict liability, breach of warranty, and outrage. He alleged that his trailer was defective and unsafe under Missouri law because it was not equipped with additional fall protections such as ladders, handholds, and extended catwalks. He also alleged that Cottrell could have and should have installed such safety equipment on his trailer. Cottrell removed the action to the United States District Court where the case proceeded to a jury trial during which there was contrasting expert testimony regarding whether Cottrell could have designed and equipped the trailer with additional fall protections.
During Stanley's case in chief, Dr. Gerald Micklow testified that " study after study" had confirmed that flattop trailers posed significant safety hazards when they did not have ladders, handholds, and extended catwalks. He explained that federal regulations limited the frame or cargo bearing portion of flattop trailers to 102 inches in width, but an additional three inches was allowed on either side of the frame for non cargo bearing safety devices. Federal regulations thus limited the total width of flattop trailers to 108 inches. Relying on photographs of Stanley's trailer, Dr. Micklow testified that the trailer was only 102 inches wide rather than 108 inches and that Cottrell could have designed the trailer to include additional fall protections. At the close of Dr. Micklow's testimony, Cottrell moved for a directed verdict. The district court denied the motion.
Cottrell also presented the testimony of expert witness George Widas who agreed that federal law prohibited flattop trailers from exceeding 108 inches in width, including the frame of the trailer and all non cargo bearing safety devices. Based on his investigation of an exemplar trailer of the same make and model as Stanley's trailer, he concluded that Cottrell could not have equipped the trailer with additional fall protections because it already contained six inches of safety extensions on a 102 inch wide frame. On cross examination, Widas again explained that the total width of the trailer was 108 inches, the maximum allowable width under federal law.
Stanley's counsel attempted to call his client and Norman Miller, another Allied employee who was familiar with the trailer, to offer rebuttal testimony regarding the width of the trailer. Counsel stated that " it was completely unexpected [that] Widas would actually come in here and suggest to this jury that the [trailer] was 108 inches wide when everybody who knows anything about these [trailers] knows that's not possible given the configuration of the [trailer]." Cottrell replied that Stanley's counsel had misunderstood the expert testimony offered by Widas whose views had been known well in advance of trial. The court refused to allow Stanley or Miller to give rebuttal testimony on the width of the trailer, concluding that such testimony was " arguably cumulative [given] all the other evidence that's come in from both sides."
Before the case was submitted to the jury, the district court and the parties discussed the content and order of the proposed jury instructions. Stanley intended to submit claims for strict liability and negligence with proposed verdict directors for each claim. The parties agreed that the verdict director for the strict liability claim would begin with the phrase " on Plaintiff's claim for personal injury based on product defect" and then list its elements. Similarly, the verdict director for the negligence claim would begin with the phrase " on Plaintiff's claim for negligence" and then list its elements. The parties also agreed that Cottrell could submit a " true converse instruction" for each verdict director as long as those instructions used " identical or substantially the same language" as their corresponding verdict directors.
After Cottrell edited the instructions, the district court read them out loud to the parties. In respect to Instruction 15, the strict liability instruction, the court stated, " in your verdict, you must assess a percentage of fault to Defendant Cottrell if you believe, first, Defendant Cottrell designed the car hauling trailer in the course of Defendant's business and the car hauling trailer design was then in a defective condition." Instead of stating the remaining elements of the strict liability claim, the court read the preamble of Instruction 16 which was the converse of the strict liability instruction: " On Plaintiff's Luther Stanley's claim for personal injury based on product defect." In respect to Instruction 17, the negligence instruction, the district court stated, " in your verdict, you must assess a percentage of fault to Defendant Cottrell if you believe, first, Defendant designed the car hauling trailer, and, second, the car hauling trailer did not have upper deck handholds or upper deck handrails." It then read the preamble of Instruction 18, the converse of its negligence instruction: " On Plaintiff Luther Stanley's claim for personal injury based on product defect." The court asked whether there were any objections to the " form, content, or order" of the instructions, and Stanley responded, " I would just restate our objections to the instructions as we discussed earlier." 
In open court the district court read the instructions to the jury, including the verdict directors for the strict liability and negligence claims (Instructions 15 and 17, respectively) and the converse instructions for the strict liability and negligence claims (Instructions 16 and 18, respectively). Copies of the verdict directors and converse instructions were also given to the jury. The instructions read as follows:
Jury Instruction No. 15
In your verdict, you must assess a percentage of fault to defendant Cottrell, ...