                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1921
                                   ___________

Jeffrey J. Niemiec;                   *
Michelle Niemiec, his wife,           *
                                      *
            Appellants,               *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
Union Pacific Railroad Company,       *
a Delaware Corporation;               *
Burlington Northern Santa Fe          *
Railway, a Delaware Corporation,      *
                                      *
            Appellees.                *
                                 ___________

                              Submitted: March 15, 2006
                                 Filed: June 7, 2006
                                  ___________

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Jeffrey J. Niemiec, a yard engineer employed by Union Pacific ("UP"), was
injured in a collision between a locomotive engine he was operating and a locomotive
engine belonging to Burlington Northern and Santa Fe Railway ("BNSF"). Niemiec
sued UP under the Federal Employers' Liability Act ("FELA") and sued BNSF,1


      1
       Niemiec's wife, Michelle Niemiec, joined him in his claims against BNSF.
alleging negligence and loss of consortium. The jury found in favor of Niemiec,
finding BNSF 100% at fault, and awarding Niemiec $200,000 in damages for his
claims against BNSF. Niemiec appeals, arguing that the district court2 erred in giving
a failure-to-mitigate instruction to the jury and also erred by failing to order a new
trial based on the inadequacy of the damages award. We affirm.

                                  I. Background
      A BNSF locomotive negligently collided with a UP locomotive operated by
Niemiec in UP's yard in Council Bluffs, Iowa, injuring Niemiec. Niemiec began
experiencing soreness in his back within a couple of hours. The next day, Niemiec
sought treatment at an emergency room and told the physician that he was having
back spasms. Subsequently, Niemiec began feeling pain down his right leg.

      Niemiec's injuries kept him off work for approximately four months. He
followed up with his own physician, Dr. Hajii, who referred him to physical therapy.
Dr. Connie Lorenzo, the physician UP hired to evaluate Niemiec, also recommended
physical therapy. UP provided Niemiec's physical therapy and work hardening. After
Niemiec completed physical therapy and work hardening, Dr. Lorenzo authorized
Niemiec to return to work with UP as a yard engineer. Niemiec worked for about three
weeks and unfortunately re-injured his back. Niemiec returned to Dr. Lorenzo,
complaining of pain in his lower back and pain radiating down his left leg. Dr.
Lorenzo considered Niemiec temporarily disabled and referred him to a spine
specialist, Dr. Eric Phillips.

      Dr. Phillips performed back surgery on Niemiec eight months after the first
accident. After Niemiec's surgical recovery, his doctors opined that Niemiec could
never work as a locomotive engineer, a switchman, a conductor, or a hostler because


      2
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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train vibration poses a risk of re-injury. Niemiec could maintain his seniority with UP
only in one of those positions.

      In October 2002, Niemiec filed suit under FELA against UP, his employer, and
against BNSF, claiming negligence in the operation of its train. At trial, testimony
centered not upon fault but upon Niemiec's damages. Niemiec and BNSF offered
expert testimony from economists regarding the financial impact of the accident to
Niemiec. The jury returned a verdict for UP on Niemiec's FELA claim but found for
Niemiec on his negligence claim against BNSF. The jury awarded Niemiec $200,000
and $1,000 to his wife for loss of consortium.

       Niemiec subsequently filed a motion for a new trial, arguing that the damages
awarded were insufficient and against the greater weight of evidence. He also argued
that the district court erred in permitting the railroads to introduce evidence and make
argument regarding apportionment of damages and mitigation of damages. The district
court denied Niemiec's motion for a new trial.



                                    II. Discussion
      Niemiec raises two arguments on appeal. First, he argues that the district court
abused its discretion in submitting instructions on mitigation of damages to the jury.
Second, he argues that the district court erred in denying his motion for a new trial
based on the inadequacy of the damages award.

                         A. Mitigation of Damages Instruction
       We review a district court's instructions to the jury for an abuse of discretion.
Brown v. Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir. 2002). Niemiec contends
for the first time on appeal that no mitigation of damages instruction should have been
given at all. Niemiec argues that the district court abused its discretion because neither
UP nor BNSF proved that Niemiec could have taken and held actual jobs. Niemiec

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asserts that UP and BNSF misled the jury about his vocational and occupational
choices following his rehabilitation. Specifically, he contends the companies argued
that he could have improved his economic condition by choosing an occupation other
than teaching school as an alternative to railroad jobs.

       Federal Rule of Civil Procedure 51(b) requires the district court to inform the
parties of its proposed jury instructions and to give the parties an opportunity to object
on the record to those proposed instructions. To be timely, a party must object before
the jury is instructed and before final jury arguments. Horstmyer v. Black & Decker,
Inc., 151 F.3d 765, 770–71 (8th Cir. 1998) (citing Fed. R. Civ. P. 51; Commercial
Prop. Inv., Inc. v. Quality Inns Int'l, Inc., 61 F.3d 639, 643 (8th Cir. 1995)). A party
must object to the use or content of the jury instructions to preserve such matters for
appeal. See id. at 771 ("Our review of the record reveals that appellants did not object
to the use or content of the Special Verdict Form and objected only generally to the
use of the district court's curative instruction."). The purpose of the objections are to
give the district court the opportunity to correct any substantive errors in the
instructions. Id.

       A party's failure to object to jury instructions results in a waiver of that
objection, absent a showing of plain error. Id. "'Plain error is a stringently limited
standard of review,' especially in the civil context, and must result in a miscarriage of
justice in order to compel reversal." Id. (quoting Rush v. Smith, 56 F.3d 918, 924 (8th
Cir. 1995)). When reviewing a substantive challenge to jury instructions, we ask
"whether the instructions, taken as a whole and viewed in light of the evidence and
applicable law, fairly and adequately submitted the issues in the case to the jury." Id.
(internal quotations and citations omitted). We will only reverse when the jury
instructions, viewed in their entirety, "contained an error or errors that affected the
substantial rights of the parties." Id. (internal quotations and citations omitted).




                                           -4-
       On appeal, Niemiec argues that insufficient evidence exists in the record to
support the district court's failure-to-mitigate instructions to the jury. While Niemiec
contends that he made the sufficiency-of-the -evidence argument to the district court,
Niemiec actually only argued to the district court about the form of the instructions.
Niemiec urged the district court to advise the jury that he did not have to move or
change crafts to comply with his duty to mitigate and that a reasonable effort to
mitigate includes finding another job or being further educated to find reasonable
employment. Therefore, because Niemiec never objected to the giving or use of the
failure-to-mitigate instructions based on insufficient evidence, we review for plain
error.

       We hold that no plain error exists. The district court's instructions on the
failure-to-mitigate claim mirrored Iowa law requirements, as set forth in Vasconez v.
Mills, 651 N.W.2d 48, 54 (Iowa 2002).3 Furthermore, BNSF offered evidence to
support its failure-to-mitigate defense. First, BNSF presented evidence that Niemiec
could have worked in 85% to 90% of the 10,000 jobs listed in the Dictionary of
Occupational Titles since the fall of 2003 and chose not to work in any capacity.
Second, BNSF presented evidence that Niemiec could have applied for jobs both
within UP and elsewhere without further education and that he did not apply for such
jobs since being medically cleared to return to work in the fall of 2003. Third, the jury
heard testimony that Niemiec could have been earning $19,000 at a minimum in a job
outside UP without obtaining further education and up to $40,000 as a train dispatcher
with UP. Fourth, Niemiec never objected to the special verdict form, which instructed
the jury to reduce the damages awarded to Niemiec for the value they assigned to his


      3
        The defendant must introduce substantial evidence that: (1) there was
something the plaintiff could have done to mitigate his loss, (2) requiring the plaintiff
to do so was reasonable under the circumstances, (3) the plaintiff acted unreasonably
in failing to undertake the mitigating activity, and (4) a casual connection exists
between the plaintiff's failure to mitigate and the damages claimed. Vasconez, 651
N.W.2d at 54.

                                          -5-
failure to mitigate his damages. Given the evidentiary record, the district court did not
plainly err by instructing the jury on mitigation of damages.

                            B. Inadequacy of Damages
       Niemiec's second argument is that the district court erred in not granting a new
trial because the jury's award of $200,000 in damages was inadequate. Niemiec
contends that $200,000 fell well below even the lowest figure adduced by the experts
for either UP or BNSF and is consequently inadequate in light of the evidence.

       Iowa state law governs the question of adequacy of damages. "Although the
appropriateness of a new trial is a federal procedural question decided by reference
to federal law, in determining whether a state law claim damage award is excessive,
state case law guides our inquiry." Sanford v. Crittenden Mem'l Hosp., 141 F.3d 882,
884 (8th Cir. 1998) (internal citation omitted). We review the denial of a motion for
a new trial for an abuse of discretion, giving deference to the trial judge. Moses.com
Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1059 (8th Cir. 2005).

        As to the adequacy inquiry, Iowa law holds that "[t]he determination of
damages is traditionally a jury function. A jury's assessment of damages should be
disturbed 'only for the most compelling reasons.'" Estate of Pearson v. Interstate
Power & Light Co., 700 N.W.2d 333, 345 (Iowa 2005) (quoting Rees v. O'Malley, 461
N.W.2d 833, 839 (Iowa 1990))."[Iowa courts] have been reluctant to interfere with a
jury verdict and give considerable deference to a trial court's decision not to grant a
new trial." Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 869 (Iowa
1994). Whether a jury's award of damages is inadequate depends on the facts of each
case. Matthess v. State Farm Mut. Auto. Ins. Co., 521 N.W.2d 699, 702 (Iowa 1994).
"Although evidence presented at trial may justify a higher damage award, this alone
does not control. The key question is whether after examining the record, 'giving the
jury its right to accept or reject whatever portions of the conflicting evidence it chose,
the verdict effects substantial justice between the parties.'" Foggia v. Des Moines

                                           -6-
Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa 1996) (quoting Kautman v. Mar-Mac
Cmty. Sch. Dist., 255 N.W.2d 146, 148 (Iowa 1977)).

        Therefore, Iowa courts will only set aside a jury award if it "(1) is flagrantly
excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense
of justice; or (3) raises a presumption it is a result of passion, prejudice or other
ulterior motive; or (4) is lacking in evidentiary support." Estate of Pearson, 700
N.W.2d at 345. Iowa courts "put the most emphasis on whether there is evidentiary
support for the verdict."Id. If evidence supports the verdict,"the others will hardly
arise, if it lacks support they all may arise." Id.

       The evidentiary record in this case supports a $200,000 verdict, and that amount
does not shock the conscience or appear to be the result of passion or prejudice. Here,
the jury verdict form did not itemize Niemiec's past and future damages; therefore, we
cannot determine how the jury categorized the damages awarded. This is not a case,
as Niemiec suggests, where the evidence is uncontroverted that his damages were, at
a minimum, $300,000. The jury was entitled to determine what weight, if any, to give
any of the expert testimony offered by the parties. Also, the jury could have
discounted or added to the assumptions made by an expert. See Foggia, 543 N.W.2d
at 891 (stating that the jury can accept or reject any portions of the conflicting
evidence it chooses).

      Finally, while Niemiec argues that statements by BNSF's counsel during closing
argument amounted to an "admission" that Niemiec's damages were, at a minimum,
$300,000, a careful reading of the closing argument reveals that BNSF's counsel only
suggested a damages award of $300,000 if the jury thought that Niemiec would lose
wages in the future and could not recoup those wages through other employment
opportunities. In addition, counsel went on to say that evidence in the case actually
supported a damages verdict of no more than $200,000.



                                          -7-
                                    III. Conclusion
       Therefore, we hold that the district court did not abuse its discretion in denying
Niemiec's motion for a new trial. Accordingly, we affirm the judgment of the district
court.
                       ______________________________




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