                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3755
                        ___________________________

                               Keller Farms, Inc.

                                     Plaintiff - Appellant

                                        v.

McGarity Flying Service, LLC; Dennis E. McGarity; Michael C. Pemberton; John
                          Doe; John Doe Corporation

                                         Defendants

Colin V. Stewart, individually and as a Partner of Joint Venturer in Stewco Farms;
  Brandon G. Stewart, individually and as a Partner or Joint Venturer in Stewco
Farms; Faron B. Stewart, individually and as a Partner or Joint Venturer in Stewco
                                      Farms

                                   Defendants - Appellees

                       Kenny Hulshof; Renee L. Hulshof

                                        Defendants
                                 ____________

                    Appeal from United States District Court
              for the Eastern District of Missouri - Cape Girardeau
                                 ____________

                         Submitted: September 24, 2019
                             Filed: December 11, 2019
                                ____________

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
                         ____________
GRUENDER, Circuit Judge.

      Keller Farms appeals the district court’s 1 directed verdict and the jury’s
verdict in favor of appellees the Stewarts. We affirm.

                                          I.

      Keller Farms operates a farm in southeast Missouri, where it grows various
crops and maintains a number of both windbreak and ornamental trees. The Stewarts
also operate a farm in southeast Missouri, to the north and east of Keller Farms’
property. Other farms border, or are in close proximity to, Keller Farms’ property.

       In April and May 2015, Keller Farms, the Stewarts, and some operators of
neighboring farms applied herbicides to their fields. The Stewarts hired Dennis
McGarity to apply herbicides via airplane to their fields, which he did on April 23,
2015. In early May 2015, Keller Farms first detected herbicidal damage to some of
its crops. Around this time, Keller Farms also noticed damage to some of its trees.

      Keller Farms suspected that herbicide drift caused this damage and submitted
a complaint to the Missouri Department of Agriculture (“Department”), which
assigned Yvonne Barr to investigate the matter. Based on Barr’s investigation, the
Department issued a warning letter to McGarity in February 2016, finding that it was
more likely than not that chemicals he applied to the Stewarts’ field had drifted onto
Keller Farms’ property. Although Missouri law empowers the Director of the
Department to order restitution in such circumstances, see Mo. Rev. Stat.
§ 281.060.2, the Department opted only to issue McGarity this warning letter.

      Keller Farms subsequently sued McGarity and Michael Pemberton (who
applied herbicides to a different field farmed by the Hulshofs around the same time


      1
       The Honorable Abbie Crites-Leoni, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
                                         -2-
McGarity applied herbicides to the Stewarts’ field), alleging negligence, negligence
per se, and statutory trespass under Missouri law for applying herbicides in a manner
that allowed them to drift onto Keller Farms’ property and cause damage to its crops
and trees. Keller Farms later amended its complaint to add the Stewarts and the
Hulshofs to hold them vicariously liable for the herbicide drift. The district court
dismissed Pemberton from the action after he went bankrupt and dismissed
McGarity and the Hulshofs after Keller Farms settled with them. The action thus
proceeded against the Stewarts alone.

       In a pretrial order, the district court limited Keller Farms’ statutory trespass
count to tree damage, concluding that Keller Farms could not recover for crop
damage under the plain language of the statute. In a pretrial conference, the district
court also excluded two sets of evidence Keller Farms proffered: (1) the February
2016 warning letter issued to McGarity by the Department as well as testimony
regarding the findings and conclusions in the letter from Darryl Slade, who was at
that time the Enforcement Program Coordinator for the Department; and (2) two
warning letters the Department issued to McGarity regarding other instances where
it found he likely caused herbicide drift. During trial but before submitting the case
to the jury, the district court directed a verdict for the Stewarts on the statutory
trespass claim because Keller Farms failed to present sufficient evidence of tree
damage. The district court allowed the negligence and negligence per se claims to
go to the jury, which returned a verdict in favor of the Stewarts on both counts.

      The district court then entered final judgment in favor of the Stewarts on all
counts. Keller Farms moved for a new trial, challenging the district court’s directed
verdict on the statutory trespass count, its exclusion of evidence, and the jury’s
verdict on the negligence and negligence per se counts. The district court denied the
motion. Keller Farms appeals.




                                         -3-
                                           II.

      This is a diversity case arising out of Missouri. As such, “we apply state
substantive law and federal procedural law.” Barkley, Inc. v. Gabriel Bros., Inc.,
829 F.3d 1030, 1038 (8th Cir. 2016).

                                           A.

       Keller Farms asserts that the district court erred in two ways in directing a
verdict against it on its statutory trespass count. We review de novo both a district
court’s grant of judgment as a matter of law and a district court’s interpretation of
state law. Wurster v. Plastics Grp., Inc., 917 F.3d 608, 617 (8th Cir. 2019);
Klingenberg v. Vulcan Ladder USA, LLC, 936 F.3d 824, 831 (8th Cir. 2019).

       First, Keller Farms argues that the district court read the Missouri trespass
statute in an “overly-technical” manner to exclude Keller Farms’ claim for crop
damage. The statute under which Keller Farms brought this trespass claim provides:

      If any person shall cut down, injure or destroy or carry away any tree
      placed or growing for use, shade or ornament . . . or shall dig up, quarry
      or carry away . . . any roots, fruits or plants, or cut down or carry away
      grass, grain, corn, flax or hemp in which such person has no interest or
      right . . . the person so offending shall pay to the party injured treble the
      value of the things so injured, broken, destroyed or carried away, with
      costs.

Mo. Rev. Stat. § 537.340.1. The district court reasoned that only Keller Farms’
claim for tree damage was actionable under the statute because it makes “injury” to
trees compensable but requires crops to be dug up, cut down, or carried away, which
did not take place in this case. The district court was correct.

       In Missouri, when a statute is unambiguous, “[t]here is no room for
construction,” and “[c]ourts are without authority to read into a statute a legislative
intent contrary to the intent made evident by the plain language.” Kearney Special

                                          -4-
Road Dist. v. Cty. of Clay, 863 S.W.2d 841, 842 (Mo. 1993). Here, the statute
permits an action against a person who “injure[s]” another’s trees but only permits
an action against a person who “dig[s] up,” “carr[ies] away,” or “cut[s] down”
another’s “plants” such as “grass” or “grain.” Mo. Rev. Stat. § 537.340.1. The
“express mention” of injury with respect to trees “coupled with [the] obvious
omission” of injury with respect to crops indicates that only injury to trees is
actionable under the statute. Cf. Mo. Chamber of Commerce & Indus. v. Mo. Ethics
Comm’n, 581 S.W.3d 89, 94 (Mo. Ct. App. 2019). Keller Farms does not allege
McGarity dug up, carried away, or cut down its crops, but merely that he injured
them, so its claim for crop damage is not actionable under this statute.

        This reading of section 537.340 is supported by the terms of a related Missouri
statute. See Disalvo Props., LLC v. Bluff View Commercial, LLC, 464 S.W.3d 243,
246 (Mo. Ct. App. 2015) (“[W]hen engaging in statutory interpretation, it is
appropriate to take into consideration statutes involving similar or related subject
matter when such statutes shed light upon the meaning of the statute being construed
. . . .” (internal quotation marks omitted)). Section 537.353.1 expressly imposes
liability on one who “damages . . . any field crop product . . . grown for . . .
commercial purposes.” Mo. Rev. Stat. § 537.353.1 (emphasis added). This
provision indicates that “[t]he legislature knew how” to impose liability for generally
injuring crops and “did so” in section 537.353 but did not do so in section 537.340.
Cf. State ex rel. Jones v. Eighmy, 572 S.W.3d 503, 507 n.4 (Mo. 2019). Keller Farms
was the master of its complaint and chose to proceed under only section 537.340.
That choice limited it to pursuing only its tree-damage claim under the trespass
statute.

      Second, Keller Farms argues that it proffered sufficient evidence to make a
submissible case for its statutory trespass claim concerning damage to its windbreak
and ornamental trees. We disagree.

      In Missouri, the measure of damages under section 537.340 for injury to trees
that “have no substantial market value” if cut down—such as “trees used for a
windbreak, and ornamental or shade trees”—is the diminution in value of the
                                         -5-
underlying real estate caused by the injury. Barnes v. Ark.-Mo. Power Co., 281 S.W.
93, 95-96 (Mo. Ct. App. 1926); accord Ridgway v. TTnT Dev. Corp., 126 S.W.3d
807, 815 (Mo. Ct. App. 2004); Brand v. Mathis & Assocs., 15 S.W.3d 403, 406 (Mo.
Ct. App. 2000).

       That being said, in Tong v. Kincaid, the Missouri Court of Appeals suggested
the measure of damages under section 537.340 was not diminution in value alone
but rather the lesser of “the cost of restoring the property” and “the difference in fair
market value” of the property “before and after the injury.” 47 S.W.3d 418, 421
(Mo. Ct. App. 2001). But then in Ridgway, that same court noted that the “rules”
regarding “the potential measure of damage” “varied somewhat” depending on
whether recovery was sought under a common-law or statutory trespass theory. 126
S.W.3d at 814; see Ridgway v. TTnT Dev. Corp., 26 S.W.3d 428, 435-46 (Mo. Ct.
App. 2000) (recognizing that “[a] cause of action brought under [section 537.340]
differs from a cause of action brought under common law trespass”). The Ridgway
court then clarified that the Tong alternative applied in “common law trespass”
cases, but “the measure of damages” under section 537.340 remained “the difference
in the fair market value of the real estate” resulting from the tree damage in cases
involving trees without substantial market value. 126 S.W.3d at 815. As Ridgway
is more recent than Tong, it controls here. See Yoder v. Nu-Enamel Corp., 117 F.2d
488, 490 (8th Cir. 1941) (“Where co-ordinate decisions of a state court are
conflicting, the most recent pronouncement must be accepted by the federal court as
declaring the law of the state.”).

       Keller Farms argues that it produced evidence showing that its trees “had no
value in their hypothetical severed state.” We accept this claim for purposes of this
appeal. See Barnes, 281 S.W. at 95 (noting that the diminution-in-value measure of
damages “has been applied” in cases involving “windbreak” trees as well as
“ornamental or shade trees”). Thus, Keller Farms had to proffer evidence of the fair
market value of its real estate “immediately before and after the trespass” to establish
its damages. Id. at 96. The only “before” evidence proffered at trial was Keller
Farms’ purchase price of approximately $2,500,000 when it bought the land roughly
a decade ago. The only “after” evidence proffered at trial was an appraisal done in
                                          -6-
2018, valuing the land at over $7,000,000. Even if these assessments had occurred
“immediately” before and after the alleged trespass, they do not show a diminution
in value because of tree damage. Keller Farms therefore had insufficient evidence
of damages, barring recovery under the trespass statute.

       Keller Farms nevertheless argues that section 537.340 “provides for recovery
of ‘the value of the things so injured’ as the measure of damages” rather than the
diminution-in-value measure. But the Barnes court rejected this exact argument,
holding that “notwithstanding the use of the word ‘thing’ in the statute,” the measure
of damages for injury to trees without substantial market value in a case brought
under section 537.340 “is the difference in value of the premises immediately before
and after the trespass.” 281 S.W. at 95-96.

       Keller Farms also argues that “replacement cost” is the appropriate measure
of damages for injury to its windbreak trees because damages to those trees were
“relatively insignificant compared to the overall value of the property” and Missouri
caselaw suggests “replacement cost” is the proper measure of damages in such
circumstances. But none of the authorities cited by Keller Farms for this proposition
involve a claim for tree damage under the trespass statute. These cases do
acknowledge, however, that “[t]he particular facts and circumstances of each case
dictate” the applicable measure of damages. Dubinsky v. U.S. Elevator Corp., 22
S.W.3d 747, 751 (Mo. Ct. App. 2000). In cases involving claims under section
537.340 for damage to windbreak or ornamental trees, Missouri courts have
instructed that the applicable measure of damages “must be distinguished” from the
measure of damages applicable in other situations. See Beaty v. N.W. Elec. Power
Coop., Inc., 312 S.W.2d 369, 371 (Mo. Ct. App. 1958); see, e.g., Ridgway, 126
S.W.3d at 815. The authorities on which Keller Farms relies are thus inapposite.

      Additionally, Keller Farms argues that the “trunk formula method”—a
method its expert used to determine “the value of each tree” in order to come up with
a damages figure—provides the proper measure of damages for injury to its
ornamental trees. As it admits, however, “no Missouri court has specifically
authorized the use of this method of computing damage to ornamental trees . . . .”
                                         -7-
For good reason, it seems: cases discussing the trunk formula method suggest it is
a different measure of damages than the diminution-in-value measure Missouri
courts apply in this context. See Rover Pipeline, LLC v. 1.23 Acres of Land, C.A.
No. 17-cv-10365, 2018 WL 3322995, at *6 (E.D. Mich. July 6, 2018) (noting that
“the trunk formula method . . . values each tree distinctly from the land on which it
is situated”). In United States v. 0.648 Acres of Land, for instance, the district court
excluded an expert report providing a tree-damage figure based on the trunk formula
method after it concluded that “the exclusive method of valuation” under governing
law in that case was the diminution-in-value method. C.A. No. 13-4722, 2014 WL
2533778, at *2, *4 (E.D. La. June 5, 2014).

       Similarly here, “the difference in the fair market value of the real estate” is
the exclusive measure of damages involving injury to trees on that real estate that do
not have substantial market value on their own. Ridgway, 126 S.W.3d at 815; see
Doty v. Quincy, Omaha & Kansas City R.R. Co., 116 S.W. 1126, 1128 (Mo. Ct. App.
1909) (“Recoverable damages for the injury to them consists alone of the effect such
injury had on the market value of the land . . . .”). No Missouri court has endorsed
use of the trunk formula method in this context, and we decline to find that the
Missouri Supreme Court would do so given Barnes’ specificity as well as its
authoritative status in modern Missouri case law on the question of the proper
measure of damages under section 537.340 for injury to windbreak and ornamental
trees. See, e.g., Ridgway, 126 S.W.3d at 817 (discussing Barnes).

                                          B.

        Keller Farms also takes issue with the district court’s exclusion of two
different sets of evidence: (1) the Department’s February 2016 warning letter to
McGarity and Slade’s testimony about the conclusions in that letter; and (2) two
other warning letters issued to McGarity finding him likely responsible for herbicide
drift in other incidents. Whether evidence is admissible is a question of federal law,
Clark v. Martinez, 295 F.3d 809, 813 n.4 (8th Cir. 2002), and we review the district
court’s evidentiary rulings for abuse of discretion, Townsend v. Bayer Corp., 774
F.3d 446, 460 (8th Cir. 2014).
                                          -8-
       The district court excluded the February 2016 warning letter as well as Slade’s
testimony about it under Federal Rule of Evidence 403 after finding that this
evidence “would be unfairly prejudicial because it would suggest to the jury that an
official fact-finding body had already decided whether McGarity” was responsible
for Keller Farms’ damages, thereby invading the province of the jury. This decision
was not an abuse of discretion.

       With respect to expert testimony regarding ultimate issues of fact, we have
warned that “courts must guard against invading the province of the jury on a
question which the jury was entirely capable of answering” on its own based on the
other evidence available. Robertson v. Norton Co., 148 F.3d 905, 908 (8th Cir. 1998)
(internal quotation marks and brackets omitted). Here, the district court still
permitted Keller Farms to elicit testimony from Barr, the individual “who actually
conducted the investigation” for the Department. It also allowed Keller Farms’
expert to testify that there was “no doubt in [his] mind” that “chemicals sprayed by
Mr. McGarity on April 23rd did, in fact, migrate to Keller Farms,” causing damage.
It excluded Slade’s testimony because that testimony went to “the ultimate issue of
this case” and represented “the conclusion of the Department of Agriculture,” whose
imprimatur threatened to overwhelm the jury’s ability to make an independent
determination on this ultimate issue. The district court guarded against invading the
province of the jury, and it did not abuse its discretion in doing so.

       The same is true of its decision to exclude the February 2016 warning letter.
Generally, the admissibility of “administrative findings” of this sort is “left to the
sound discretion of the trial court.” Johnson v. Yellow Freight Sys., Inc., 734 F.2d
1304, 1309 (8th Cir. 1984). A district court does not abuse its discretion in excluding
such evidence where such findings have “little probative value” due to their
“conclusory” nature and “substantial evidence” concerning the “matters summarized
in the report” is otherwise presented to the jury. Id. at 1309-10. This was precisely
the case here. The February 2016 warning letter was a conclusory two-page
document, and Keller Farms proffered evidence from “numerous other witnesses”
testifying in support of its contention that McGarity’s herbicide application drifted
onto Keller Farms’ land. The district court exercised “sound discretion” in
                                         -9-
excluding this letter, which we “decline to disturb.” See Dindinger v. Allsteel, Inc.,
853 F.3d 414, 427 (8th Cir. 2017).

       The district court excluded the other two warning letters under Rule 403 after
finding that the “probative value” of these two letters was “substantially outweighed
by the danger of unfair prejudice, confusing the issues, and misleading the jury.”
The district court also noted that Keller Farms would “be able to question Mr.
McGarity about what sort of precautions he takes when performing aerial spraying
of herbicides.” The district court did not abuse its discretion in excluding these
letters.

       Generally, “[e]vidence of a . . . wrong . . . is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). Keller Farms argues that
this evidence should have been admitted to establish whether McGarity applied the
herbicides “in such a way as to allow them to drift onto the Keller Farms property.”
That is, Keller Farms proffered this evidence to show that McGarity acted in
accordance with his purportedly negligent character when he crop dusted the
Stewarts’ field. Rule 404 prohibits this.

        To avoid Rule 404’s prohibition of propensity evidence, Keller Farms argues
that this evidence should have been admitted because it had “another purpose,” Fed.
R. Evid. 404(b)(2), namely, to show that McGarity had “notice of a dangerous
condition,” see Hicks v. Six Flags over Mid-America, 821 F.2d 1311, 1316 (8th Cir.
1987). But McGarity’s awareness that spraying herbicides from an airplane could
create a dangerous condition was not “at issue in the case.” See Weitz Co. LLC v.
MacKenzie House, LLC, 665 F.3d 970, 975 (8th Cir. 2012). On the contrary,
McGarity volunteered that he knew Keller Farms’ property was close by, that he had
an obligation to act as “a reasonably careful and prudent aerial applicator would act,”
that if he caused any herbicide to drift onto Keller Farms’ property he would have
violated the law, and that he was aware of the risks of spraying herbicides in high
wind and took significant precautions to gauge wind before spraying. As


                                          -10-
McGarity’s awareness of a dangerous condition was not at issue, these other letters
were not admissible for “another purpose.” See id.

                                           C.

       Finally, Keller Farms argues that the district court should have set aside the
verdict and granted Keller Farms’ motion for a new trial both because the jury’s
verdict was against the weight of the evidence and because the Stewarts made an
improper closing argument resulting in jury nullification. We review the denial of a
motion for a new trial for an abuse of discretion, bearing in mind that such motions
“are generally disfavored and will be granted only where a serious miscarriage of
justice may have occurred.” United States v. Petroske, 928 F.3d 767, 774 (8th Cir.
2019).

       First, the district court did not abuse its discretion in denying the motion for a
new trial on the ground that the verdict was against the weight of the evidence.
“Where the basis of the motion for a new trial is that the jury’s verdict is against the
weight of the evidence, the district court’s denial of the motion is virtually
unassailable on appeal,” Keenan v. Computer Assocs. Int’l, Inc., 13 F.3d 1266, 1269
(8th Cir. 1994) (internal quotation marks omitted), and we review “the evidence
most favorably to the verdict,” Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 381 (8th
Cir. 2008). Here, the jury heard sufficient evidence to warrant its verdict. For
example, Barr testified that she “didn’t see a drift pattern” on Keller Farms’ property
from the direction of the Stewarts’ field, noting instead that she saw “drift from the
south,” the opposite direction, suggesting an alternate cause of Keller Farms’
damages. McGarity testified that he noticed herbicide damage in the area while in
the air the day he applied herbicides to the Stewarts’ field, further suggesting an
alternate cause of damages. The jury also heard the Stewarts’ expert explain why
he thought it was basically impossible for the herbicides McGarity sprayed to drift
onto Keller Farms’ property. It was for the jury to weigh the evidence and assess
credibility, and Keller Farms cannot meet its burden here merely by showing that
“the jury could have drawn different inferences or conclusions” from the evidence


                                          -11-
and testimony. Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 186
(8th Cir. 1972) (internal quotation marks omitted).

      Second, the district court did not abuse its discretion in denying the motion
for a new trial on the ground that the Stewarts’ closing argument was improper.
“[W]hen a new trial motion is based on improper closing arguments, a new trial
should be granted only if the statements are plainly unwarranted and clearly injurious
and cause prejudice to the opposing party and unfairly influence a jury’s verdict.”
Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 351 (8th Cir. 2002) (internal
quotation marks omitted) (brackets omitted). Even if closing arguments are
prejudicial, a “district court’s cautionary instructions [can] cure[] any prejudice that
might have been caused by the comment,” id. at 353, as may counsel’s chance to
respond to them, see, e.g., Gilster v. Primebank, 747 F.3d 1007, 1011 (8th Cir. 2014)
(considering counsel’s “opportunity to respond” to opposing counsel’s improper
closing argument as a factor in deciding whether such argument was sufficiently
prejudicial to warrant new trial).

        Keller Farms takes issue with comments made by the Stewarts’ counsel in
closing argument that Keller Farms argues suggested to the jury that it should
disregard the law and render a verdict for the Stewarts out of sympathy. But, even
assuming Keller Farms’ characterization of these comments is correct, any prejudice
Keller Farms ostensibly suffered was cured by the district court’s instructions and
Keller Farms’ closing argument. The district court instructed the jury at the start of
trial that attorneys’ statements and closing arguments were not evidence and that the
jury could not let its judgment be affected by sympathy, and the district court
reminded the jury before closing arguments that these instructions were still in
effect. Keller Farms then had a chance to rebut the Stewarts’ closing argument,
reminding the jury that it had to follow the law and could not be swayed by
sympathy. The district court’s admonition to the jury “at the beginning of trial . . .
that statements made by the attorneys are not evidence,” coupled with Keller Farms’
rejoinder to the Stewarts’ closing argument, “remedied any prejudice incurred” by
Keller Farms. See Billingsley v. City of Omaha, 277 F.3d 990, 997 (8th Cir. 2002).


                                         -12-
                                         III.

      We affirm the district court’s entry of judgment in favor of the Stewarts on all
counts in Keller Farms’ amended complaint, and we affirm its denial of Keller
Farms’ motion for a new trial.
                      ______________________________




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