                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-4040
                                    ___________

CHRISTINE J. NANNINGA,                  *
individually, and on behalf of          *
Larry L. Nanninga and Scott M.          *
Nanninga, and as personal               *
representative of the estate of Bruce E.*
Nanninga, deceased; LARRY L.            *
NANNINGA; SCOTT M. NANNINGA,            * Appeal from the United States
                                        * District Court for the
         Plaintiffs - Appellants,       * Western District of Missouri
                                        *
    v.                                  *
                                        *
THREE RIVERS ELECTRIC                   *
COOPERATIVE, a Missouri Corporation, *
                                        *
         Defendant -Appellee.           *
                                 ___________

                         Re-submitted: * November 1, 2000
                                Filed: December 19, 2000
                                  ___________

      *
         Defendant filed a petition for rehearing and suggestion for rehearing en banc
this panel’s previous opinion. On April 4, 2000, the Court ordered that the petition be
held in abeyance until the Supreme Court of Missouri ruled upon the appeal in Lopez
v. Three Rivers Electric Cooperative, Inc., a case arising out of the same accident at
issue here. The Missouri Court subsequently issued its ruling on August 29, 2000,
clarifying the applicable standard of care, and on October 30, 2000, we granted the
petition for rehearing by the panel, vacating the opinion and judgment filed on
February 8, 2000.
Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
                          ___________

TUNHEIM, District Judge.

       On July 31, 1994, plaintiffs' decedent Bruce Nanninga, a flight engineer, was
killed along with three other crew members when their CH-47 military helicopter struck
a set of defendant's power lines strung approximately 100 feet over the Osage River in
central Missouri. Nanninga drowned as a result of the accident, and his widow and
children filed a wrongful death diversity action in the United States District Court for
the Western District of Missouri. Plaintiffs filed suit in the Western Division, but the
district court granted defendant's motion for intradistrict change of venue and
transferred the action to the Central Division.

      Meanwhile, the families of two of the three other crew members killed in the
crash brought suit in Missouri state court. On May 7, 1998, after discounting for
comparative fault on the part of the decedents, a jury awarded those plaintiffs
$2,750,000 and $2,500,000, respectively.

        On August 11, 1998, the jury in this action returned a verdict for defendant. The
district court denied plaintiffs' motions for judgment as a matter of law and for a new
trial and entered judgment for defendant. Plaintiffs' appeal raises the following issues:
(1) whether the state court jury's finding of liability should collaterally estop defendant
from contesting its liability in this case; (2) whether the district court correctly
instructed the jury that defendant owed plaintiffs' decedent a duty of ordinary care; (3)
whether the trial court erred in denying plaintiffs' motion for a change of venue; (4)
whether the trial court erred in restricting plaintiffs' voir dire; (5) whether the trial court


       1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
                                             -2-
erred in delaying its ruling on the issue of comparative fault; (6) whether the trial court
erred in permitting evidence and argument relating to the decedents' violation of
military regulations; (7) whether the trial court erred in permitting evidence that the
United States Army paid for the replacement of the power lines; (8) whether the trial
court erred in allowing testimony via affidavit; (9) whether the trial court adequately
instructed the jury concerning media publicity; and (10) whether the verdict was against
the weight of the evidence.2 We affirm.

A.    The Applicable Standard of Care

       Plaintiffs contend that, under Missouri law, defendant owed a duty of the highest
degree of care because defendant is supplier of electricity. We review the district
court's determination of state law de novo, see Salve Regina College v. Russell, 499
U.S. 225, 231 (1991); First Bank v. Hogge, 161 F.3d 506, 510 (8th Cir. 1998), and we
are bound by the highest state court’s pronouncement of state law, see B.B. v.
Continental Ins. Co., 8 F.3d 1288, 1291 (8th Cir. 1993).

       As noted above, in the parallel state court case, the Missouri Supreme Court
determined that ordinary care is the correct standard of care in the circumstances of this
case. See Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 158 (Mo. 2000). We
therefore affirm the trial court’s instruction on the standard of care.




      2
       The parties also bring several motions. Both parties move to supplement the
appellate record with material from the state court case; neither party has responded to
the other's motion. Accordingly, both motions are granted. Plaintiffs also bring a
motion to certify the question of the proper standard of care to the Missouri Supreme
Court, or in the alternative, for a stay pending the appeal of the state court case. As the
Missouri Supreme Court has now ruled on the proper standard of care, plaintiffs’
motion is denied as moot.
                                            -3-
B.    Collateral Estoppel

       In their motion for judgment as a matter of law and again in their motion to
renew request for judgment as a matter of law, plaintiffs argued that defendant should
be collaterally estopped from contesting its liability because the state court jury found
defendant liable. The district court declined to apply collateral estoppel because the
state court applied a different standard of care, the plaintiffs could have intervened in
the state case, and the state court submitted the issue of the decedents' comparative
fault to the jury, whereas the district court determined that there was no basis for
comparative fault.

        The application of collateral estoppel in diversity cases is determined according
to state law. See Jaramillo v. Burkhart, 999 F.2d 1241, 1243 (8th Cir. 1993). In
Missouri, trial courts have broad discretion in permitting the offensive use of collateral
estoppel. See State v. Daniels, 789 S.W.2d 243, 245 (Mo. Ct. App. 1990). Previously,
we concluded that the district court did not abuse its discretion in refusing to apply
collateral estoppel because the issues in the two cases were not identical and plaintiffs
could have joined the state case. See Nanninga, 203 F.3d at 535. Because the
Missouri Supreme Court has reversed the judgment of the state trial court, there is now
an additional reason to affirm the district court’s refusal to apply collateral estoppel.
Before the doctrine may be applied, a final judgment on the merits must have been
rendered involving the same claim or issue sought to be precluded. See Robin Farms,
Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo. Ct. App. 1999). In Missouri, when an
appellate court vacates a judgment, the lower court’s judgment cannot be considered
a final judgment on the merits for purposes of collateral estoppel. See State v. Nunley,
923 S.W.2d 911, 922 (Mo. 1996). For this reason and the reasons articulated in our
previous decision, therefore, we conclude that the district court did not abuse its
discretion in refusing to give collateral estoppel effect to the state court judgment.




                                           -4-
C.     Change of Venue

       Plaintiffs initially filed this lawsuit in the Western Division of the Western
District of Missouri in Kansas City. The district court granted defendant's motion for
intradistrict change of venue and the case was assigned to the Central Division in
Jefferson City. The district court denied plaintiffs' motion for a change of venue back
to Kansas City. Plaintiffs argue that the jurors in Jefferson City were biased in favor
of defendant because they were members of electrical cooperatives.

       The district court's denial of a motion for a change of venue is reviewed for
abuse of discretion. See Shapiro v. Kauffman, 855 F.2d 620, 621 (8th Cir. 1988). The
party challenging the impartiality of the jurors has the burden of showing that particular
jurors hold opinions that raise a presumption of partiality. See id. Plaintiffs have failed
to make this showing. Other than the adverse verdict, they point to nothing that could
call the jurors' impartiality into question. The district court did not abuse its discretion
in permitting the action to remain in Jefferson City.

D.     Voir Dire

       Plaintiffs argue that the district court abused its discretion in limiting voir dire
both in time and scope. Defendant first contends that because the plaintiffs did not
object to the twenty minute time limit on voir dire, we must review that issue for plain
error. Although the record does not reflect whether plaintiffs objected to the time limit,
under either standard of review the district court did not err in limiting voir dire in time
or scope.

      District courts have broad discretion in determining what questions will be asked
during voir dire. See Ratliff v. Schiber Truck Co., 150 F.3d 949, 956 (8th Cir. 1998).

                                            -5-
Plaintiffs cite specific questions that they ought to have been allowed to ask,
concerning such topics as holding companies accountable, placing a monetary value on
human life, and media coverage of an unrelated military plane crash in Italy. While the
district court denied some of plaintiffs' questions, the court and plaintiffs' counsel
together covered the following topics: the jurors' background, ability to serve, prior jury
service, and familiarity with the case and witnesses; whether any jurors were users or
members of defendant; juror familiarity with defendant's insurance carrier; monetary
awards in lawsuits; military and aviation experience; opinions about compensating for
a loss of life with money; and feelings about lawsuits being brought against a company.
These questions touched on nearly all the areas plaintiff contends should have been
covered during voir dire, and we are unable to conclude that the time limit or the
restrictions were an abuse of discretion.

E.    Comparative Fault

       On the fourth day of trial, the district court determined that it would not instruct
the jury on comparative fault. Plaintiffs argue that the district court erred in not making
this determination earlier and in subsequently permitting defendant to present evidence
and argument concerning the pilots' violations of military and civilian flight rules.
Plaintiffs assert that had the trial court ruled on the comparative fault issue earlier and
properly enforced its ruling, no evidence concerning these alleged violations would
have been permitted. The record does not reflect whether plaintiffs objected either to
the timeliness of the ruling or the subsequent admission of evidence; regardless of the
standard of review, however, the district court did not err in admitting this evidence,
because it was relevant to defendant's argument that its alleged negligence was not the
cause of the accident. See Whisenand v. McCord, 996 S.W.2d 528, 531 (Mo. Ct. App.
1999) (explaining that a defendant may introduce any evidence that tends to establish
that it is not liable for negligence, including evidence that a third party caused the
accident).


                                            -6-
F.     Evidence that the Army Paid to Replace Power Lines

       Plaintiffs contend that defendant violated a stipulated motion in limine to exclude
testimony that the Army reimbursed defendant for the replacement of its power lines.
Although the district court instructed the jury to disregard the testimony, which
consisted simply of an affirmative answer to a single question, plaintiffs argue that the
district court should have further rebuked defense counsel and its failure to do so
prejudiced plaintiffs. The record does not show that plaintiffs requested an admonition,
nor does it reflect the existence of any such stipulation, other than a reference in
plaintiffs' written motions in limine. Furthermore, the transcript indicates that defense
counsel elicited this testimony only after plaintiffs' counsel first asked the witness about
the cost of replacing the lines. While counsel's misconduct may in some cases be so
prejudicial as to require a new trial, see Sanders-El v. Wencewicz, 987 F.2d 483, 485
(8th Cir. 1993), we conclude that under these circumstances the district court's
instructions to the jury adequately cured any prejudicial effect this testimony may have
had.

G.     Admission of Evidence by Affidavit

       Plaintiffs contend that the district court erred in admitting seventeen affidavits
into evidence. The affidavits disputed the testimony of Mike Harp, whose state court
testimony was read into evidence after the district court determined that he was an
unavailable witness. Absent a stipulation of the parties, affidavits may not be treated
as evidence. See Eames v. Eames, 463 S.W.2d 576, 579 (Mo. Ct. App. 1971).
Defendant contends that plaintiffs agreed to the admission of the affidavits in return for
the court's ruling admitting Harp's former testimony. The parties indicate that the
following colloquy occurred between court and counsel:

       Madden:                        Judge, we would like to use the affidavits
                                      attached to the summary judgment, and we

                                            -7-
                                       would also like to call one live witness on
                                       that issue.
      The Court:                       I'll do it.
      Cloon [plaintiffs' counsel]:     They can have that in their case.
      The Court:                       Huh?
      Cloon:                           You mean in their case?
      The Court:                       Yeah.
      Cloon:                           Okay.
      The Court:                       Yeah.
      Cloon:                           But I'm just going to read, and if they want
                                       to read their cross-examination, I guess,
                                       they can do that.
      Virtel:                  Yeah.
      Cloon:                         But then in their case in chief.
      Virtel:                  Yeah, right.
      Cloon:                         Okay.



       While the meaning of this dialogue is somewhat difficult to decipher, it is
consistent with defendant's contention that plaintiffs agreed to permit the introduction
of the affidavits. Such an interpretation is further bolstered by the fact that plaintiffs
did not raise this issue in their motion for a new trial. Accordingly, the district court
did not err in admitting the affidavits.




                                            -8-
H.    Failure to Give Cautionary Instructions

       On the second day of trial, plaintiffs’ counsel reported to the district court that
on the previous night the local news aired a story on their case in conjunction with a
report concerning an unrelated plane crash in Italy wherein the pilots were criminally
prosecuted for violating military regulations. Plaintiffs assert that the district court
erred in failing to inquire whether the jurors had seen the broadcast and in failing to
instruct them as to the distinctions between the two cases.

        Whether to give a cautionary instruction is within the discretion of the district
court, see Stineman v. Fontbonne College, 664 F.2d 1082, 1087 (8th Cir. 1981), and
we will not disturb its rulings absent an abuse of discretion, see Lovett v. Union Pacific
R.R. Co., 201 F.3d 1074, 1082 (8th Cir. 2000). Here, the district court instructed the
jury not to read or view any media reports concerning this case, and plaintiffs offer no
evidence that the jurors were exposed to the allegedly prejudicial broadcast. Cf.
Lovett, 201 F.3d at 1083 (affirming the district court’s refusal to give cautionary
instruction where the plaintiff failed to demonstrate prejudice). Moreover, plaintiffs
failed to present a transcript or a videotape of the broadcast either to the district court
or this Court. Instead, they rely on counsel’s recollection of the coverage. Under these
circumstances, we are unable to say that the district court abused its discretion in
refusing to give a specific cautionary instruction.

I.    Weight of the Evidence

       Plaintiffs appeal the district court’s denial of their motion for a new trial on the
basis that the verdict was against the great weight of the evidence. We review the
district court’s denial of a motion for a new trial under Fed. R. Civ. P. 59 for abuse of
discretion. See Porous Media Corp. v. Pall Corp., 110 F.3d 1329, 1338 (8th Cir.
1997). Where the district court’s denial of the motion is based on its conclusion that
the verdict is not contrary to the weight of the evidence, its holding is “virtually

                                            -9-
unassailable.” Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th Cir. 1997). Here,
defendant offered evidence that it was not negligent in failing to mark its lines because
the lines and supporting structures were visible and the lines were too low to present
an unreasonable risk. Alternatively, even if the jury concluded that defendant was
negligent, it might have determined that the pilot was negligent in flying too low and
that this negligence was the cause of the accident. We thus discern no abuse of
discretion in the district court’s denial of plaintiffs’ motion.

      For these reasons, the judgment of the district court is affirmed.



A true copy.

  ATTEST:

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




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