                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1085
                                   ___________

Bonnie Rodrick,                        *
                                       *
            Appellant,                 * Appeal from the United States
                                       * District Court for the
      v.                               * Western District of Missouri.
                                       *
Wal-Mart Stores East, L.P., doing      *
business as Wal-Mart Supercenter,      *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: September 22, 2011
                                Filed: January 20, 2012
                                 ___________

Before LOKEN, BEAM, and MURPHY, Circuit Court Judges.
                           ___________

BEAM, Circuit Judge.

       Bonnie Rodrick tripped on a rug in front of a drinking fountain at a Wal-Mart
store in Maryville, Missouri, in 2004, suffering injuries to her left hip. Invoking
diversity jurisdiction, Rodrick sued Wal-Mart in 2007 asserting tort claims for her
injuries. Following a four-day trial, a jury ruled in favor of Wal-Mart. Rodrick filed
a motion for new trial, which the district court denied.1 Rodrick appeals and we
affirm.

      1
      The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri.
I.     BACKGROUND

       On April 2, 2004, Rodrick tripped on a rug and fell as she passed in front of a
water fountain in a Maryville, Missouri, Wal-Mart. She testified that before she fell,
she looked at the mat and did not see a corner turned up. After the fall, however, she
turned around and saw that the corner of the rug in front of the fountain had a turned-
up corner "just enough to catch your toe," causing her to trip. Rodrick fractured her
left hip as a result of the fall and underwent surgery to repair the hip within a few
days, which was immediately followed by rehabilitation. However, the screws used
in the first surgery failed and Rodrick then had a total hip replacement just over one
month later, on May 21, 2004, which was also followed by physical therapy.

       One year later, Rodrick fell while visiting her husband at a nursing home,
resulting in a third surgery in April 2005, followed by several months in a wheelchair.
She claims this second fall was due to a dropped toe, which she claims developed
following the initial Wal-Mart fall. Rodrick began to experience many difficulties
after the 2004-2005 time frame, including an inability to go to the bathroom by
herself, the need to use a wheelchair or walker for stability, an inability to care for her
then-infirm husband before his death, and other similar limitations. Rodrick sued
Wal-Mart for her injuries and the jury returned a verdict in Wal-Mart's favor.
Rodrick then filed a motion for new trial.

       Rodrick raised three issues in her motion for new trial, each of which she raises
on appeal. Rodrick challenged (1) the court's admission of the testimony and "expert"
report from Dr. Simon, a physician who conducted an independent medical
examination, who testified based upon his own personal observations of Rodrick; (2)
the court's exclusion of evidence regarding prior falls on the rug, which Rodrick
sought to introduce by way of cross-examination; and (3) the court's denial of a new
trial based upon certain statements from defense counsel during closing arguments
regarding the good character of the Wal-Mart store manager which had been

                                           -2-
discussed during voir dire. Any additional facts relevant to these issues accompany
the discussion of that issue below.

II.   DISCUSSION

       Inversely related to a trial court's wide discretion in deciding whether to grant
a new trial is our limited scope of appellate review. "We review the district court's
denial of [Rodrick's] motion for a new trial for abuse of discretion, and give the
district court's ruling high deference." PFS Distrib. Co. v. Raduechel, 574 F.3d 580,
592 (8th Cir. 2009). Encompassed within the district court's ultimate denial are its
evidentiary rulings. We likewise afford the district court broad discretion in its
evidentiary rulings, "[i]n deference to a district court's familiarity with the details of
the case and its greater experience in evidentiary matters." Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 384 (2008). We will reverse only "if the district court's
ruling was based on 'an erroneous view of the law or a clearly erroneous assessment
of the evidence' and affirmance would result in 'fundamental unfairness.'" Wegener
v. Johnson, 527 F.3d 687, 690 (8th Cir. 2008) (quoting Davis v. U.S. Bancorp, 383
F.3d 761, 765 (8th Cir. 2004)).

      A.     Dr. Simon's Expert Testimony

       At trial, the court allowed Wal-Mart's independent physician, Dr. Simon, to
testify regarding the observations he made during his independent medical
examination of Rodrick. Dr. Simon prepared a report following the evaluation.
Specifically as to the report, Rodrick claims that it should not have been entered into
evidence, nor should it have served as the basis for Dr. Simon's testimony, because
it did not comply with Fed. R. Civ. P. 26(a)(2), which dictates the form and
framework of disclosed expert reports. For example, Rodrick argues the report was
not signed, offered no opinions, was never updated, and did not indicate the data
upon which Dr. Simon relied, all of which is required by Rule 26. In response, Wal-

                                           -3-
Mart points out that (1) Simon's report was never offered nor admitted into evidence,
(2) Rodrick failed to object to the report following its disclosure, thus waiving any
objections at trial, and (3) Rodrick failed to raise a Daubert challenge.

       The district court held that despite its failings under Rule 26(a), use of Dr.
Simon's report at trial was harmless because there was no surprise or prejudice to
Rodrick. Wal-Mart revealed Dr. Simon and his report to Rodrick a year and a half
prior to trial. And, curiously, Rodrick made no objections or requests for
supplementation regarding this report until the day Dr. Simon was to approach the
witness stand. The court further held that the trial was not disrupted by Dr. Simon's
testimony. Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (noting
that a district court can allow evidence violating Rule 26(a) if the violation was
justified or harmless). Additionally, the court noted that Dr. Simon did not testify as
an expert, but rather he testified about his own personal observations and experiences,
as specifically directed by the district court.

       A district court considers several factors in determining whether a Rule 26
violation is justified or harmless, including: "(1) the prejudice or surprise to the party
against whom the testimony is offered; (2) the ability of the party to cure the
prejudice; (3) the extent to which introducing such testimony would disrupt the trial;
and (4) the moving party's bad faith or willfulness." Id. (quotation omitted). And,
even then, the court need not make explicit findings concerning the existence of a
substantial justification or the harmlessness. Id. As to the report, despite Rodrick's
persistence, even though it was marked at trial and discussed extensively by the
parties with the court, because it was never offered and received into evidence, there
is nothing to discuss on appeal regarding its admission per se. The district court
clearly agreed with Rodrick that Dr. Simon's report failed to comply with the Rule 26
edicts. The court, however, did not exclude Dr. Simon's testimony as a result but
rather very specifically limited Dr. Simon's testimony to particular aspects of his



                                           -4-
examination and personal observations of Rodrick. The court instructed Dr. Simon
to stay tightly within the bounds of his report.

       Rodrick argues that Dr. Simon should not have been allowed to testify at all
and that much of his testimony was "irrelevent" or "incorrect." The greatest
controversy Rodrick had at trial and on appeal regarding Dr. Simon's testimony
concerns, among other statements, the doctor's statements that Rodrick did not use
a walker to enter his medical office on the day of her examination, his testimony that
none of Rodrick's medical records reveal a diagnosis for toe drop/foot drop, and that
Rodrick suffers from polyarthritis. The district court, however, appropriately
addressed Rodrick's trial objections regarding Dr. Simon by limiting his testimony
only to his own personal observations. This testimony would have been no surprise
to Rodrick, because it was contained in the report given to Rodrick well before trial.
If indeed Dr. Simon's testimony was incorrect, certainly Rodrick could have called
her own witnesses to rebut the testimony, or could have otherwise cross-examined Dr.
Simon.

       Ultimately, the court's admission of Dr. Simon's testimony could have had only
a slight impact, if any at all, on the jury's verdict, and we will not reverse on this
basis. Admission of this testimony was harmless. Primarily, Dr. Simon's testimony
informed the issue of damages, an issue never reached by this jury given their finding
of no liability. His testimony did not run to Wal-Mart's alleged liability on the date
of the accident. In fact the court expressly admonished that Dr. Simon in no way
discuss the events of April 2. We find no abuse of discretion regarding the admission
of Dr. Simon's testimony.




                                         -5-
       B.     Impeachment Evidence

       At trial, the court refused to allow into evidence any exhibits or testimony
regarding a previous incident that occurred on the same rug, in the same location,
prior to Rodrick's fall. Affording the district court the discretion due, we affirm.

       During discovery, Rodrick obtained a copy of written notes from a "Risk
Control Weekly Team Meeting" held five days after Rodrick's fall, which referenced
that Wal-Mart pulled up the rug in front of the fountain after Rodrick's fall because
it was the second incident at that location. Rodrick intended to use the evidence of
the first incident to rebut the trial testimony of Lawrence Scheffe, the store manager,
who testified that, in a situation involving a slip and fall, it is "standard protocol when
an accident occurs, [to] take pictures, [] do the incident report, and then [in a case like
Rodrick's,] store the mat away." Rodrick also highlighted another statement made by
Scheffe against which she claims she could have used this prior incident evidence.
Specifically, Scheffe was asked if, prior to Rodrick's fall, anyone else had reported
a problem with the mat. Scheffe responded, "No, they did not."

       Outside the presence of the jury, the parties discussed the prior incident at
length, revealing that at some point prior to Rodrick's fall, a Wal-Mart customer who
had recently undergone knee surgery put his foot down on the rug and pushed the rug
forward causing stress to the customer's knee, which seems to have led to a fall.
Scheffe claimed the information given to him was that "the rug pushed forward,
causing [the customer] to go back." According to the proffered testimony, there was
nothing wrong with the rug at that point, nor was the rug the impetus of the fall.
Rather, the customer pushed the rug, which is why the rug was not picked up
following that incident. There was no discussion by the parties regarding the severity
of the fall or injury, if any, sustained by the prior customer; or whether an incident
report was even completed.



                                           -6-
       Even though the two incidents involved the exact same rug, the court
determined that they were too dissimilar to allow use of the prior incident for
impeachment purposes at Rodrick's trial, assuming the evidence was proper
impeachment evidence in the first instance. The court noted that the information
available regarding the prior event was only secondhand. The court reiterated that
there was no direct testimony from the customer involved in the prior incident so the
court did not have a good indication as to what the specific underlying facts were,
there was no incident report from the prior event, and there was no indication that the
rug necessarily played a role in the prior incident because the fall occurred when the
customer pushed the rug. Accordingly, the court held that any probative value
provided by the limited evidence proffered regarding the prior incident was
outweighed by potential prejudice, and it denied use of the incident for impeachment
purposes at trial.

       The district court did not clearly abuse its discretion in denying use of the prior
incident evidence at trial. Although the store manager might have opened the door
to impeachment when he testified that no one had previously reported a problem with
the mat in question, the two incidents were not similar–one a slip because a customer
pushed the rug and became off-balance, and one a trip. Reviewing the proffer to the
court, it is not wholly accurate to describe the prior incident as involving a report of
a problem with the mat. Rather, in the prior incident, the proffer indicates that the
customer was the impetus.

      Given the differences between the two incidents, we reject the argument that
proof of the prior incident supported the inference that Wal-Mart had the sort of
"knowledge or warning" that could aid the jury in its negligence determination. See
Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 926 (Mo. 1992) (en banc) ("Where the
theory of recovery is negligence, any knowledge or warning that defendant had of the
type of accident in which plaintiff was injured clearly aids the jury in determining
whether a reasonably careful defendant would have taken further precautions under

                                           -7-
all the facts and circumstances, which include the knowledge of defendant of prior
accidents.") "[T]he admissibility of [this] evidence lies within the discretion of the
district judge, who must weigh the dangers of unfairness, confusion, and undue
expenditure of time in the trial of collateral issues, against the factors favoring
admissibility." Hicks v. Six Flags Over Mid-America, 821 F.2d 1311, 1316 (8th Cir.
1987). We acknowledge that the analysis is close on this issue. However, our task
is not to make the determination afresh. We thus affirm, as there was no clear abuse
of discretion.

      C.     Closing Argument

       In addition, during closing arguments, Wal-Mart's counsel referenced
statements made by potential jurors during voir dire, stating, in effect, that the jury
had heard other potential jurors talk about the good character of Wal-Mart's store
manager, Scheffe. The district court sustained Rodrick's objection to this colloquy
and instructed the jury to disregard it. When a motion identifies improper closing
argument as a basis for new trial, relief is 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." Littleton v. McNeely, 562 F.3d 880, 889 (8th Cir.
2009) (quotations omitted). Stated simply, Rodrick fails to meet this burden. Given
the context in which the comment was made, the immediate objection, which was
sustained, and the court's contemporaneous curing instruction, the comment was not
clearly injurious. Harrison v. Purdy Bros. Trucking Co., 312 F. 3d 346, 353 (8th Cir.
2002). The district court did not abuse its discretion by denying the motion for new
trial because of improper closing arguments.




                                          -8-
III.   CONCLUSION

     For the reasons stated herein, we affirm the district court's denial of Rodrick's
motion for new trial.
                      ______________________________




                                         -9-
