United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C-HARLES A. SHAW UNITED STATES DISTRICT JUDGE.
closed diversity case is before the Court on plaintiff Leslie
Grussing's Motion for New Trial pursuant to Rule
59(a)(1)(A), Federal Rules of Civil Procedure. Defendants
oppose the motion and it is fully briefed. For the following
reasons, the motion will be denied.
complaint alleged that defendants Dr. Corey Solman, Jr. and
Orthopedic and Sports Medicine, Inc. (collectively referred
to as “defendants”) committed medical malpractice
by failing to diagnose and treat an infection in her knee
following arthroscopic surgery, specifically by failing to
test fluid aspirated from her knee on July 18, 2014. As a
result of the infection, plaintiff subsequently had to
undergo further surgical treatment including total knee
case was tried before a jury on January 30, 2017 through
February 3, 2017, when the jury returned a verdict in favor
of defendants. Plaintiff timely filed her motion for new
trial, which asserts that the Court erred by (1) not
sustaining plaintiff's objection to defense counsel's
misstatement of the burden of proof in closing argument; (2)
allowing defense expert witness Dr. Matthew Matava to testify
in violation of Rule 26, Fed. R. Civ. P., as to opinions not
previously disclosed and bases for opinions not previously
disclosed; and (3) halting plaintiff's cross- examination
of Dr. Matava on the issue of whethe r normal-appearing
synovial fluid can be infected.Plaintiff also asserts that even
if no single individual error warrants a new trial, the
cumulative effect of the errors was prejudicial and affected
the jury's verdict.
granting or denial of a new trial is a matter of procedure
governed by federal law.' Bank of Am., N.A. v. J.B.
Hanna, LLC, 766 F.3d 841, 851 (8th Cir. 2014)
(alteration in original) (quoting Brown v. Royalty,
535 F.2d 1024, 1027 (8th Cir. 1976)).” Lincoln
Composites, Inc. v. Firetrace USA, LLC, 835 F.3d 453,
459 (8th Cir. 2016). It is almost entirely within the
discretion of the trial court whether to grant a new trial.
See Fed.R.Civ.P. 59(a); Belk v. City of
Eldon, 228 F.3d 872, 878 (8th Cir. 2000).
new trial is appropriate when the first trial, through a
verdict against the weight of the evidence, an excessive
damage award, or legal errors at trial, resulted in a
miscarriage of justice.” Gray v. Bicknell, 86
F.3d 1472, 1480 (8th Cir. 1996). The key question is whether
a new trial is required in order to avoid a miscarriage of
justice. Maxfield v. Cintas Corp., No. 2, 563 F.3d
691, 694 (8th Cir. 2009). “[A] new trial is only an
appropriate remedy when an aggrieved party proves prejudice,
meaning that the result at trial would have been different if
not for the district court's error.” Acuity v.
Johnson, 776 F.3d 588, 596 (8th Cir. 2015) (citations
Defense Counsel's Closing Argument on the Burden of
first point in support of her new trial motion is that the
Court erred in not sustaining plaintiff's objection to
defense counsel's misstatement of the burden of proof in
closing argument. The defense argument at issue,
plaintiff's objection, and the subsequent discussion is
MR. ELLINGTON [defendants' counsel]: I want to discuss
briefly just a few instructions. One of those is the burden
of proof. The plaintiff has the burden of proof in this case.
As indicated a minute ago, I believe the evidence supports a
verdict for Dr. Solman. And we don't have an obligation
under the law to prove anything. I don't believe
plaintiff has met their burden. I think - but if you are just
sitting there and you are not sure, then the law requires
that you find in favor of the defendants.
A few other instructions. One of them.
MR. HENDRICKSON [plaintiff's counsel]: Objection, Your
Honor, this is a misstatement of the law, “not
sure.” THE COURT: Counsel.
MR. ELLINGTON: Your Honor -- THE COURT: Follow the
MR. ELLINGTON: Yes. And the Court will give you the burden of
proof, what that is. More likely than not.
THE COURT: Well, it's in the instruction.
MR. ELLINGTON: Yes, Your Honor.
THE COURT: Yes.
Tr. of Defs.' Closing Arg., Pl.'s Ex. 1, 3:1-19
(emphasis added) (Doc. 113).
asserts that the Court did not sustain the objection to
defense counsel's argument but rather merely admonished
the jury to follow the instructions, and thus allowed a
misstatement of the burden of proof to stand. Plaintiff
argues that under Missouri law, such a misstatement of the
law is prejudicial and requires a new trial, offering
citation to Missouri decisions.
respond, correctly, that federal law governs the permissible
scope of closing argument in a diversity case. Kostelec
v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228
(8th Cir. 1995) (citing cases); Vanskike v. Union Pacific
R. Co., 725 F.2d 1146, 1149 (8th Cir.
1984). Under federal law, no error results from
closing argument unless the statements made were plainly
unwarranted and clearly injurious. Vanskike, 725
F.2d at 1149. In determining whether plaintiff has made the
requisite showing of prejudice arising from defense
counsel's statement in closing argument, the Court must
examine the entire trial. Gilster v. Primebank, 747
F.3d 1007, 1011 (8th Cir. 2014).
case, there was significant discussion of the plaintiff's
burden of proof during jury selection. Plaintiff's
counsel introduced the topic of the burden of proof and told
the venire panel that plaintiff had to prove “we are
more likely right than wrong . . . . Just a slight tip of the
scales.” Tr. of Pl.'s Voir Dire, 2:20-23 (Doc.
115). Plaintiff's counsel emphasized the “more
likely than not” standard and contrasted it to the much
higher burden of proof in a criminal case. Id.,
2:24-3:11. Several venire members stated they might have
difficulty with or disagreed with the applicable “more
likely than not” burden of proof, and questions and
discussion on the topic ensued. Id., 3:12-4:22. One
venire person asked plaintiff's counsel, “[W]hen
you say slightly tip the scales, are we talking 51/49
reasonable?” Id., 4:23-25. Plaintiff's
counsel stated, “51/49 would do it. And that is the
standard that the law says you have to apply. If you believe
you need 60-, 70-, 80-percent certainty, then you
wouldn't be able to follow that standard.”
Id., 5:1-4. The venire person responded, “It
is less than what I thought, but I did not realize the margin
was that narrow.” Plaintiff's counsel replied,
“It is. The law says more likely right than
wrong.” Id., 5:5-8.
thereafter, the Court informed the venire panel that in a
civil case the party who has the burden of proving a fact
must prove it by a preponderance or the greater weight of the
evidence, that is, to prove it is more likely true than not
true, and stated that the jury would be given further
instructions on the burden of proof later. Id.,
6:2-9. After the jury was selected and the panel was sworn,
the Court read initial instructions to the jury, including an
instruction describing the burden of proof which stated in
part that the party with the burden of proof was required to
prove a fact by the greater weight of the evidence, which
meant the fact was more likely true than not true.
the conclusion of all the evidence and immediately before
closing arguments, the Court read the final instructions to
the jury. Instruction number five instructed the jury on the
burden of proof and informed the jury that “[t]he
burden is upon the party who relies upon any such [factual]
proposition to cause you to believe that such proposition is
more likely to be true than not true.” See
Doc. 97 at 6, Instr. No. 5. Instruction number six informed
the jury, among other things, that “[l]awyers'
statements, arguments, questions, and comments are not
evidence.” Id. at 7, Instr. No. 6. The Court
cautioned jury that they must remember to follow all of the
instructions, and stated that each juror would have a copy of
the instructions for use in the jury room. Instruction number
one instructed the jury that they must follow all of the
Court's instructions. Id. at 1, Instr. No. 1.
counsel addressed the issue of the burden of proof in closing
MR. HENDRICKSON: I have to talk to you now about a couple
critical instructions. The first one I want to talk about is
number five. That's the burden of proof. We're
showing you here. These are the instructions you'll get.
This is what we talked about all the way back in jury
selection. If you believe that the overall weight of the
evidence is more likely than true ...