                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-2765
                                   ___________

Cheryle Ann Scheerer;                   *
John Scheerer,                          *
                                        *
             Appellants,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri
Hardee’s Food Systems, Inc.,            *
                                        *
             Appellee.                  *
                                   ___________

                  Submitted:     February 12, 1998

                     Filed:      July 9, 1998
                                    ___________

Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE,1 District Judge.
                           ___________

McMILLIAN, Circuit Judge.

      Cheryle Ann Scheerer and her husband, John Scheerer, (the Scheerers) appeal
from a final judgment entered in the United States District Court2 for the Western


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Fernando J. Gaitan, United States District Judge for the Western
District of Missouri.
District of Missouri, in favor of Hardee’s Food Systems, Inc. (Hardee’s), following a
second trial in their action for damages resulting from injuries sustained by Mrs.
Scheerer when she slipped and fell in the parking lot of a Hardee’s restaurant in Lee’s
Summit, Missouri. This is the third time this case has come before us. We previously
reversed the district court’s grant of summary judgment for Hardee’s, Scheerer v.
Hardee’s Food Systems, 16 F.3d 272 (8th Cir. 1994) (Scheerer I) (reversing and
remanding for trial), and thereafter reversed a judgment for Hardee’s following the first
jury trial, id., 92 F.3d 702 (8th Cir. 1996) (Scheerer II) (reversing and remanding for a
new trial). At the second trial, the jury returned a verdict for Hardee’s upon assigning
0% fault to Hardee’s and 0% fault to Mrs. Scheerer. In the present appeal, the
Scheerers argue that the district court (1) erred in admitting certain testimonial evidence
related to the subject matter of an inadmissible document, (2) erred in instructing the
jury, and (3) abused its discretion in allowing cross-examination and closing arguments
which tended to impugn the Scheerers’ counsel. Upon careful review, we now affirm.

                                       Jurisdiction

      This case was removed from state court to federal district court pursuant to 28
U.S.C. § 1441. Jurisdiction in the district court was proper based upon 28 U.S.C.
§ 1332. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a), and we
have jurisdiction over the present appeal pursuant to 28 U.S.C. § 1291.


                                        Discussion

        In Scheerer II, we held that the district court erred at the first trial in admitting
into evidence as a business report an incident report prepared in anticipation of
litigation by a non-witness employee of Hardee’s. 92 F.3d at 705-07. The incident
report contained a statement attributed to a “friend” of Mrs. Scheerer that the cause
of the accident was Mrs. Scheerer’s “slick shoes.” Id. at 705. Prior to the second trial,
the district court entered an order precluding Hardee’s from mentioning the incident

                                             -2-
report at any time before or during the trial, while in the presence of the jury or
potential jurors, without prior permission from the district court. At trial, counsel for
Hardee’s cross-examined the “friend,” Mrs. Fann, about her observations while
assisting Mrs. Scheerer at the time of the accident. Counsel asked the following
question: “And you looked around and you said it must have been your slick shoes,
didn’t you?” Appellants’ Appendix, Vol. 2, at 289 (trial transcript). Over the objection
of counsel for the Scheerers, the district court allowed the question and admitted Mrs.
Fann’s answer, in which she admitted making the “slick shoes” comment. It is
undisputed that the incident report was not mentioned at the second trial. Thus, all that
is at issue in this appeal is Mrs. Fann’s testimony about her own contemporaneous
“slick shoes” comment (which had been recorded in the inadmissible report).

       The Scheerers argue that the district court erred in permitting Mrs. Fann to
answer the “slick shoes” question. According to the Scheerers, “Hardee’s managed
to get through the ‘back door’ (cross-examining Mrs. Fann about her purported
conclusions about what caused the slip and fall) what it could not get in through the
‘front door’ (admission of the incident report).” Id. at 13. The Scheerers apparently
do not dispute the propositions that the hearsay rule allows a witness to testify about
his or her own prior statements, Fed. R. Evid. 801(c), or that an attorney ordinarily may
ask on cross-examination whether the witness previously made a particular statement
under oath, Fed. R. Evid. 613. They argue, however, that – not only did Mrs. Fann
never actually admit at the first trial that she had made the “slick shoes” comment – but
also that there was no evidence that she had ever actually looked at the soles of Mrs.
Scheerer’s shoes or personally knew about them. Therefore, they contend, Mrs. Fann
should not have been “forced to testify as to her opinion on the ultimate issue in this
case – the cause of Mrs. Scheerer’s slip and fall,” because it violated Fed. R. Evid.




                                           -3-
7013 and Fed. R. Evid. 602.4 Brief for Appellants at 15-25.

       To begin, although not necessarily required under Fed. R. Evid. 613, the fact of
the matter is that Mrs. Fann did essentially testify at the first trial that she had made the
“slick shoes” comment.5 More importantly, Mrs. Fann’s testimony regarding her own
observations at the time of the accident, which Hardee’s was able to elicit from her on
cross-examination, was relevant to rebut through reasonable inference the Scheerers’
evidence suggesting that Mrs. Scheerer slipped because of water, oil, or degreaser on


       3
        Rule 701 provides:

              If the witness is not testifying as an expert, the witness’ testimony
       in the form of opinions or inferences is limited to those opinions or
       inferences which are (a) rationally based on the perception of the witness
       and (b) helpful to a clear understanding of the witness’ testimony or the
       determination of a fact in issue.
       4
           Rule 602 provides in relevant part:

               A witness may not testify to a matter unless evidence is introduced
       sufficient to support a finding that the witness has personal knowledge of
       the matter. Evidence to prove personal knowledge may, but need not,
       consist of the witness’ own testimony.
       5
           Mrs. Fann testified at the first trial as follows.

       Question: “Were you the one, Miss Fann, that decided or stated after she
       fell that it must have been her slick shoes?”

       Answer: “That was the conclusion I made, the comment, the fact that she
       had on black patent leather shoes.”

Appellants’ Appendix, Vol. 1, at 102 (trial transcript).



                                               -4-
the parking lot. See Fed. R. Evid. 401. Because Mrs. Fann’s contemporaneous
statement was rationally based on her own first-hand perceptions and reasonably would
have aided the jury’s understanding of a fact in issue (i.e., whether there was water, oil,
or degreaser on the parking lot), it was not inadmissible under Fed. R. Evid. 602 or
Fed. R. Evid. 701. Furthermore, because Mrs. Fann’s contemporaneous statement of
opinion was “otherwise admissible,” it was not objectionable merely because it
embraced an ultimate issue to be decided by the trier of fact. See Fed. R. Evid. 704(a).

      We next turn to the Scheerers’ claims of instructional error at the second trial.
In Scheerer II, we anticipated that some of the instructional issues raised in that appeal
would recur following our remand and thus addressed them at that time. We held,
among other things, that the district court did not err in instructing the jury on the issues
of whether an “open and obvious” danger existed in the parking lot or whether Mrs.
Scheerer failed to keep a proper lookout and therefore may be comparatively at fault.
92 F.3d at 709-10. In the present appeal, the Scheerers again argue that the district
court committed reversible error in giving the same “open and obvious” instruction, the
same “proper lookout” instruction, and the same comparative fault instruction.
Alternatively, the Scheerers argue that the district court erred by giving those
instructions together because they are logically inconsistent. The Scheerers further
argue that it was reversible error for the district court to use, in Instruction No. 10, the
word “accident” instead of “incident” because “accident” implies a lack of any fault,
whereas “incident” does not. See Instruction No. 10 (“The mere fact that an accident
happened, standing alone, does not permit the jury to draw the inference that the
accident was caused by anyone’s negligence.”) (set forth in Addendum to Brief for
Appellants at 6).

       The Scheerers have made no showing that the evidence relevant to the
challenged instructions was materially different at the second trial. We therefore hold
that the Scheerers’ legal arguments regarding Instructions Nos. 8, 9, and 12 are
foreclosed under the “law of the case” doctrine because the exact same issues were

                                             -5-
raised on appeal and were decided favorably to Hardee’s in Scheerer II, 92 F.3d at
709-10. See Bethea v. Levi Strauss & Co., 916 F.2d 453, 456-57 (8th Cir. 1990)
(district court is bound on remand to obey, without re-examining, court of appeals’
mandate in same case). As to Instruction No. 10, we simply find no merit to the
Scheerers’ argument. When Instruction No. 10 is read in its entirety and in conjunction
with the other jury instructions, it is simply unreasonable to construe the jury charge as
a whole as indicating that the jury should find no fault. See, e.g., Dupre v. Fru-Con
Eng’g, Inc., 112 F.3d 329, 335 (8th Cir. 1997) (when reviewing claim of instructional
error, instructions are considered in their entirety to determine whether the charge, as
a whole, fairly and adequately submits the issues to be tried). Accordingly, we hold
that the district court did not commit reversible error in its jury instructions.

       Finally, the Scheerers argue that the district court abused its discretion by
allowing defense counsel to insinuate, in cross-examination of the Scheerers’ witnesses
and in closing argument, that the Scheerers’ counsel may have suborned perjury or
encouraged fabrication. In response, Hardee’s maintains that defense counsel did
nothing wrong in highlighting, for example, the significant changes over time in the
testimony given by Mrs. Scheerer and the Scheerers’ witnesses and in pointing out
logical inferences to be drawn therefrom.

       Notwithstanding the unflattering light that was shed upon the Scheerers’
attorney, we hold that it was within the district court’s discretion to permit the
questions and arguments to which the Scheerers now object because they addressed
matters concerning the credibility of witnesses. Moreover, the questions and arguments
by lawyers are not evidence, and we assume the jury was so instructed. Finally, the
arguments and inferences raised by counsel for Hardee’s were certainly matters upon
which counsel for the Scheerers could have responded through redirect examination
and rebuttal closing argument. Thus, upon careful review, we hold that the district
court did not abuse its discretion in allowing cross-examination and closing arguments
which tended to impugn the Scheerers’ counsel.


                                           -6-
                                       Conclusion

       For the reasons stated, the judgment of the district court is affirmed. In addition,
the motions filed by Hardee’s to dismiss the present appeal as frivolous and for
sanctions are denied.

      A true copy.

             Attest:

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




                                            -7-
