                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                              Nos. 02-4148/03-1097
                                  ___________

Robert Cisar; Suzanne Munns,         *
                                     *
     Appellants/Cross Appellees,     *
                                     * Appeals from the United States
     v.                              * District Court for the Northern
                                     * District of Iowa.
Home Depot U.S.A., Inc.,             *
                                     *
     Appellee/Cross Appellant.       *
                                ___________

                            Submitted: October 24, 2003

                                 Filed: December 8, 2003
                                  ___________

Before RILEY, BOWMAN, and SMITH, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Robert Cisar (Cisar) sued Home Depot U.S.A., Inc. (Home Depot) for injuries
he sustained after using a chain saw purchased from Home Depot. Cisar’s wife, Dr.
Suzanne Munns (Munns), brought a related loss of consortium claim against Home
Depot. Cisar’s and Munns’s claims were tried to a jury, which returned a verdict in
Home Depot’s favor. Cisar and Munns raise three issues on appeal; Home Depot
raises four additional issues on cross appeal. We affirm.
I.      BACKGROUND
        On August 5, 1996, Cisar purchased a powerful chain saw at an Iowa Home
Depot store. When Cisar used the saw the next day, the chain came off, so Cisar
returned the saw to Home Depot. Steve Lathrop (Lathrop), a Home Depot employee,
put the chain back on the saw, tightened the chain, and returned the saw to Cisar.
When Cisar used the saw a couple weeks later, the chain came off again. Cisar again
returned the saw to Home Depot, and Lathrop replaced the saw’s bar and chain. Cisar
testified that, when he used the saw three or four weeks later, the chain came off and
cut his finger. Cisar returned to Home Depot, and Lathrop again repaired the saw.1
Cisar and Lathrop testified Cisar demanded the saw be replaced, but Efren Gonzalez
(Gonzalez), Home Depot’s manager, refused. To the contrary, Gonzalez testified he
replaced Cisar’s saw with “a brand spanking new one in a sealed box.” Cisar used
the saw on a few occasions in the summer of 1997 without incident. On October 4,
1997, Cisar used the chain saw for the final time. This time the chain came off,
grabbed the wood Cisar was cutting, and hit Cisar on the head. Cisar suffered serious
injuries, including a brain injury. Cisar claimed the brain trauma caused temper
problems, personality changes, and emotional behavior problems.

       Cisar sued Home Depot for negligent failure to repair the saw, negligent failure
to exchange the saw, and negligent post-sale failure to warn of the saw’s unsafe
condition. Munns sued for loss of consortium. The district court2 granted summary
judgment to Home Depot on the post-sale failure to warn claim, holding no evidence
showed Home Depot knew the chain saw was defective or unreasonably dangerous.
The district court denied Cisar’s and Munns’s motion in limine to exclude certain
adverse evidence regarding their character and conduct. On October 28, 2002, a jury
trial began on the negligent failure to repair and exchange claims, and Munns’s loss

      1
          Lathrop testified Cisar only returned the saw twice.
      2
       The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas, sitting by designation in the Northern District of Iowa.

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of consortium claim. The first witness the plaintiffs called was Nicholas Loy (Loy),
Home Depot’s trial representative. Home Depot objected, stating Loy was not listed
as a witness. The court asked why the plaintiffs called Loy, stating the court
understood Loy had no relevant knowledge of the facts of the case. The plaintiffs
responded by explaining they wanted to ask Loy “what Home Depot’s defense of the
case is and what [its] allegations are as to the facts being raised.” The court sustained
the objection and refused to allow Loy to testify.

       On October 31, 2002, the case was submitted to a jury. The first question on
the verdict form recapped the testimony of Cisar, Lathrop and Gonzalez.3 The form
then asked the jury the following question: “Did Efren Gonzalez give the plaintiff,
Robert Cisar, a new chain saw and a longer bar at Mr. Cisar’s request?” The jury
answered yes. Based on this answer, the court entered judgment in Home Depot’s
favor. Cisar and Munns appeal, claiming the district court (1) abused its discretion
by allowing certain evidence adverse to Cisar and Munns to be presented to the jury,


      3
          The jury verdict form stated the following:

             Mr. Cisar testified that he attempted to exchange the chain saw for
      a new one, but that his request was refused. Instead, his chain saw was
      “fixed” and returned to him.
             Mr. Lathrop’s testimony was that Mr. Gonzalez refused his
      recommendation that Home Depot give Mr. Cisar a new chain saw and,
      instead, told Mr. Lathrop to “fix it” and return it to Mr. Cisar, which Mr.
      Lathrop states he did.
             Mr. Gonzalez testified that he gave Mr. Cisar a completely new
      Husqverna [sic] model 394 xp chain saw when Mr. Cisar complained
      and brought in his old chain saw. Mr. Gonzalez also testified that a
      short time later Mr. Cisar returned to the store and complained that the
      bar was not as long as it was supposed to be whereupon Mr. Gonzalez
      caused a subordinate to purchase the bar size that Mr. Cisar wanted and
      gave it to Mr. Cisar, advising him that Home Depot would not install it
      or assume any responsibility for its installation.

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(2) abused its discretion by prohibiting the plaintiffs from questioning Loy, and (3)
erroneously granted summary judgment to Home Depot on the post-sale failure to
warn claim. Home Depot cross appeals, arguing the district court erred in (1) denying
Home Depot’s motion for judgment as a matter of law on Cisar’s negligent failure to
repair and exchange claims, (2) not allowing a defense witness to testify, (3)
excluding additional adverse evidence, and (4) granting certain protective orders.

II.    DISCUSSION
       A.      Home Depot’s Cross-Examination
       Cisar presented the jury with evidence that, after sustaining his brain injury, he
suffered frontal lobe syndrome. Cisar contended the brain injury changed his
personality, forced him to become moody and angry, caused emotional and behavioral
problems, made him prone to temper outbursts and out-of-control anger, created
problems with impulsivity, and created a hostile environment for his family, placing
serious strain on his familial relationships. Cisar and Munns contend they did not
receive a fair trial because Home Depot personally attacked them during cross-
examination and elicited angry and emotional outbursts from Cisar. Cisar and Munns
contend Home Depot’s questioning caused the jury to dislike them, prompting the
jury to reject Cisar’s version of the events. Cisar and Munns claim Home Depot used
cross-examination to present to the jury irrelevant evidence and evidence that was
overly prejudicial. Before trial, Cisar and Munns unsuccessfully argued their motion
in limine to exclude damaging evidence addressing their offensive conduct; at trial,
Cisar and Munns again objected without success.

       We grant the trial court broad discretion in regulating cross-examination of
witnesses, and we will not reverse without a positive showing the trial court abused
its broad discretion. See Ratliff v. Schiber Truck Co., 150 F.3d 949, 955 (8th Cir.
1998). At trial, Cisar and Munns placed blame on Home Depot for Cisar’s post-
accident behavior and temper problems. Home Depot certainly delved into
embarrassing and damaging pre-accident and post-accident incidents involving Cisar

                                          -4-
and Munns.4 Given the nature of Cisar’s and Munns’s claims, Home Depot could
legitimately attack the claims that Cisar’s brain injury caused his post-accident
behavior and damaged his familial relationships. For example, Home Depot could
properly compare Cisar’s pre-accident emotional state and actions, including family
problems, with his post-accident emotional state and actions. Furthermore, some of
the damning evidence came directly from Cisar’s courtroom behavior. Our review
of the record convinces us the district court did not abuse its discretion in its handling
of Home Depot’s cross-examination of Cisar and Munns.

        B.    Unlisted Witness
        Without a hint of authority, the plaintiffs claim the district court erred by
denying the plaintiffs the opportunity to question and confront Loy, Home Depot’s
trial representative. We do not agree. Neither Cisar and Munns nor Home Depot
listed Loy as a witness. Nothing indicates Loy had personal knowledge of any
relevant information. As Loy was the first witness called at trial, he was not called
for impeachment purposes. A trial court is entrusted with broad discretion to
determine whether to permit the testimony of a witness not listed before trial. See
Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992). We will reverse the
trial court’s decision to exclude a witness based only on a clear abuse of discretion.
Id. Without a showing as to the relevance of Loy’s testimony, we cannot fault the
district court for excluding the testimony of a witness not listed before trial.

     C.      Post-Sale Failure to Warn
     The plaintiffs contend the district court erroneously granted summary judgment
to Home Depot on the negligent post-sale failure to warn claim. At oral argument,
the plaintiffs’ attorney rightly conceded the viability of this negligence


      4
       Because of the personal nature of the evidence presented at trial, we see no
reason to expound on the details here. Suffice it to say, we understand the issues and
graphic evidence after thoroughly reviewing the briefs and the record.

                                           -5-
theory–indeed, all three negligence theories–depended on the jury’s answer to the
first question (i.e., whether Home Depot gave Cisar a new saw). Had this post-sale
failure to warn negligence claim been submitted to the jury, as the plaintiffs sought,
it also would not have survived the jury’s answer to the first question. Because the
plaintiffs are not entitled to relief on the first two issues raised on appeal, and because
the jury’s finding precludes a post-sale failure to warn claim, we need not discuss
Iowa product liability law.

      D.    Cross-Appeal Issues
      Because we determine the plaintiffs’ arguments on appeal are meritless, we
need not address the four remaining cross appeal issues.

III.  CONCLUSION
      The district court did not abuse its discretion in allowing Home Depot’s
damaging cross-examination of Cisar and Munns or by prohibiting the plaintiffs from
questioning Home Depot’s trial representative. The jury’s finding that Home Depot
replaced Cisar’s saw with a new saw defeated the post-sale failure to warn claim. Our
resolution of the plaintiffs’ appeal in Home Depot’s favor precludes our review of
Home Depot’s cross appeal. The judgment in Home Depot’s favor is affirmed.5
                        ______________________________




       5
       Civil law is not always practiced in a civil manner. We commend both
attorneys in this difficult case for their professionalism. They skillfully litigated the
contentious issues and zealously represented their clients without sacrificing civility,
a linchpin of our legal system. At oral argument, we learned the attorneys (one from
Georgia, the other from Iowa) not only treated each other with the proper respect, but
became friends. We applaud their devotion to the highest standards of the law.

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