                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2936
                                  ___________

Debra Kubitz; Bruce Kubitz; Debra      *
Kubitz, as Parent and Next Friend      *
of a Minor Larry Kubitz,               *
                                       *
                  Appellants,          *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Dohrn Transfer Company,                *
                                       *
                 Appellee.             *
                                  ___________

                             Submitted: February 15, 2002

                                 Filed: June 7, 2002
                                  ___________

Before HANSEN, Chief Judge, HEANEY and RICHARD S. ARNOLD, Circuit
      Judges.
                             ___________

HEANEY, Circuit Judge.

     Debra Kubitz brought an action in the United States District Court1, against
Dohrn Transfer Company (Dohrn) for injuries she claimed she received when she


      1
       The Honorable John Jarvey, United States Magistrate Judge for the Northern
District of Iowa, presiding with the consent of the parties pursuant to 28 U.S.C.
§636(c).
attempted to unload an electric sign from the back of a Dohrn freight truck.
Following a trial, a jury returned a special verdict form which indicated that Dohrn
was negligent, but that its negligence was not the proximate cause of any damage to
Kubitz. Kubitz appeals, and we affirm.

I.    BACKGROUND

      Kubitz was an employee of Tierney’s Clothing Store in Waukon, Iowa. On
November 11, 1998, a Dohrn freight truck arrived at the store to deliver an electric
sign. The sign was in a cardboard carton that weighed approximately 110 pounds.
Dohrn’s delivery driver entered the store and requested assistance in unloading the
carton. Kubitz was alone in the store at the time, so she went outside to help.

        Once outside, Kubitz stood behind the truck while the driver went into the back
of the truck to move the carton. The driver then pushed the carton towards Kubitz
until it started to drop toward the ground. The driver wanted Kubitz to steady the
carton while he got out of the truck to help lower it to the ground. Instead, Kubitz
took a step back and attempted to support the full weight of the carton. She alleges
that she suffered an immediate and permanent injury to her back as a result, and that
she is now unable to engage in regular employment.

       Kubitz filed her suit against Dohrn on September 23, 1999, claiming that its
driver failed to exercise due care for her safety when he unloaded the carton from the
truck. Following the jury verdict, Kubitz filed a motion for a new trial, arguing that
the verdict was not supported by the evidence. The district court denied the motion,
finding that Dohrn had presented evidence that Kubitz had back problems and sought
chiropractic treatment prior to the unloading incident, and that Dohrn had argued a
comparative fault defense. The district court reasoned the jury could have determined
that Dohrn’s negligence was not a substantial factor in causing Kubitz’s injuries.



                                         -2-
II.   DISCUSSION

       Kubitz asserts the district court improperly denied her motion for a new trial.
We review a district court’s denial of a motion for new trial for an abuse of discretion.
Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 688 (8th Cir. 2001). We will
reverse the district court only if there is an “absolute absence of evidence to support
the jury’s verdict.” Peerless Corp. v. United States, 185 F.3d 922, 927 (8th Cir. 1999)
(citation omitted).

       At trial, Dohrn presented evidence to indicate that Kubitz did not suffer a
permanent injury as a result of the unloading incident. Kubitz’s primary chiropractor,
Dr. Suhr, testified that Kubitz received periodic chiropractic treatments prior to
November 11, 1998 because she suffered temporary injuries while working on her
farm. He also testified that he did not uncover objective findings to corroborate
Kubitz’s claims that she suffered a permanent back injury as a result of the the lifting
incident. See Appellee’s Appendix, at 43. Further, although Kubitz called several
doctors to testify that the lifting incident caused her to suffer a permanent and
debilitating back injury, Dr. Cederberg, an orthopedic surgeon who performed an
IME of Kubitz on June 7, 2000, testified as follows:

      I thought that [her back injury] was not related to the work injury in
      question. . . . I couldn’t find much wrong with her on an objective basis
      . . . her symptoms just didn’t correlate [with] anything in the findings,
      or even on the MRI scan of her thoracolumbar spine that was taken as
      part of her workup. Things just did not correlate very well at all. . . .
      [O]n November 11, [1998] while doing that work activity with the box
      she might have pulled a few muscles for a short period of time.




                                          -3-
Appellant’s Appendix, at 71-72.2

       This testimony was sufficient to cast doubt on Kubitz’s suggestion that she was
permanently injured as a result of the lifting incident. The jury could have concluded
that Kubitz suffered only temporary muscle strain on November 11, 1998. In the
alternative, the jury could have determined that Kubitz’s back pain was the result of
a preexisting injury.

      We acknowledge that considerable evidence was presented in support of
Kubitz’s claim. The evidence that was presented at trial, however, was sufficient to
substantiate the jury’s verdict. The district court properly denied Kubitz’s motion for
a new trial.

III. CONCLUSION

      For the reasons cited above, the judgment of the district court is affirmed.

      A true copy.

             Attest:

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




      2
        Dr. Cederberg also testified that, although Kubitz had a bulging disc in her
back, it was unlikely that this disc injury could have been caused by a single lifting
incident. See Appellee’s Appendix, at 036.

                                         -4-
