                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3999
                                   ___________

James L. Spencer,                        *
                                         *
             Plaintiff - Appellant,       *
                                         * Appeal from the United States
v.                                       * District Court for the
                                         * Eastern District of Arkansas.
Daniel W. Young, Individually,           *
& as Agent/Employee of Key Point         *
Carriers, Ltd; Key Point Carriers, Ltd., *
                                         *
             Defendants - Appellees.     *
                                    ___________

                             Submitted: June 13, 2007
                                Filed: July 23, 2007
                                 ____________

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

       James L. Spencer brought this negligence action in state court against Daniel
W. Young and his employer, Key Point Carriers, Ltd. (Key Point). Young was the
driver of a tractor trailer involved in an accident with Spencer, and he and Key Point
removed the action to federal district court. Key Point filed a counterclaim against
Spencer for negligence, and a jury found both Spencer and Young negligent. The
district court1 denied Spencer's motion for judgment as a matter of law or for a new
trial and Spencer appeals, arguing that his motion in limine should have been granted
and that there was an inconsistent verdict. We affirm.

       Spencer finished work outside of Memphis, Tennessee after 10:10 pm on
January 31, 2004, and began to drive home. He stopped at a gas station where he
purchased a six pack of bottled beer and set it on the passenger side floorboard. While
caught in traffic he drank one of the beers. After stopping at his house to pick up his
wife Brandy, the two of them drove to West Memphis, Arkansas to refuel because gas
prices were lower there than in Tennessee. The accident occurred while Spencer was
driving south on the inside lane of Martin Luther King, Jr. Drive just before 11:00 pm.
The two vehicles collided when Young, who was coming from the opposite direction,
began a left turn. The Spencers were seriously injured and taken to a hospital by
ambulance and medivac.

        There were no uninvolved witnesses to the accident. Doyle Barnes, a security
officer working at a nearby gas station, testified that he heard the collision, and he was
the first to arrive at the site. Police officers arrived and observed that Spencer's
tailights were not on. Barnes and others testified that when they looked inside
Spencer's car, they saw the headlight switch was off. After testing the vehicle's
lightbulb assembly and filaments and observing the headlight switch, Spencer's expert,
William Ford, concluded that Spencer's headlights had been on at the time of the
collision, but the opposing expert, John Bentley, concluded after his testing that the
headlights had been off. Young testified that he saw a flash of light just before the
accident, but he did not know if it came from Spencer's headlights. Both experts
testified that Spencer should have had time to stop before the collision, but that he had
not applied his brakes.




      1
       The Honorable George Howard, Jr., late a United States District Judge for the
Eastern District of Arkansas.

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      First responders smelled alcohol on Spencer's breath and in the car; they also
saw broken beer bottles, at least four of which were still capped, on the front
passenger side floorboard. A West Memphis police officer stated that Spencer's
breath smelled like liquor immediately following the collision; he also observed the
broken beer bottles in the car. Spencer was charged with driving while intoxicated
(DWI) and driving without headlights; both charges were later dropped for lack of
evidence.

       Spencer and his wife Brandy sued Young and Key Point in Arkansas state court
for negligence; Brandy Spencer settled her negligence claim before the case went to
trial. The defendants removed the action to the United States District Court for the
Eastern District of Arkansas and Key Point asserted a counterclaim for negligence
against Spencer.

       Spencer filed a pretrial motion in limine to exclude any evidence "to the effect
that [he] was intoxicated, had a six pack of beer in the car, and was driving with no
headlights on." He argued that this evidence was irrelevant, that there was no
evidence that he had been impaired, and that any relevance was outweighed by its
potential prejudice to Spencer. Young and Key Point countered that they would show
Spencer was impaired by expert testimony that he could have stopped but did not
brake and that his headlights were off immediately following the collision. This
evidence was not only relevant but probative of Spencer's comparative negligence
they argue. The district court concluded that the alcohol related evidence was relevant
to impairment and factually supported and denied the motion in limine. Spencer
renewed his argument in a supplementary motion and in a motion for reconsideration;
both were denied.

       On the morning trial began, both parties sought clarification of the court's
pretrial ruling and Spencer renewed his motion to exclude the alcohol evidence:

      SPENCER'S ATTORNEY: [T]he thrust of what we're saying here is if
      [Young and Key Point] cannot prove at any point that [Spencer] was

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      impaired or that he was intoxicated we don't think they should be
      allowed to bring up anything about the beer.

      THE COURT: Here is what we will do. When they make their offer if
      you feel that a sufficient foundation has not been established you may
      raise an objection and I'll reconsider it but currently I'm granting them
      permission to offer that regarding the beer contained in that vehicle … .

Following this ruling, Spencer's counsel concluded that the most effective trial
strategy would be to raise the alcohol evidence himself in his opening statement and
through testimony from his own witnesses.

        During trial Spencer acknowledged that while driving within the hour prior to
the collision he consumed one beer out of the six pack. He stated that as he drove
down Martin Luther King, Jr. Drive he saw Young's tractor trailer enter the drive from
the interstate, but that he did not see it immediately before the collision because
another tractor trailer was directly in front of it. Young testified that he saw a flash
of light immediately before the collision but could not say if it came from Spencer's
car. Officers testified that when they arrived on the scene, Spencer's headlight switch
was off, the interior of his vehicle and his breath smelled like alcohol, and that there
were at least four bottles of beer on the front passenger floorboard that were broken
but still capped. The parties' expert witnesses differed in their conclusions about
whether Spencer's headlights were on at the time of the accident. Both agreed,
however, that Spencer should have had time to stop before the collision if he had been
traveling at a normal speed under normal conditions, but he had not used his brakes
at all.

       The parties agreed on jury instructions and four verdict forms. There was one
verdict form for the jury to use if it found in favor of Spencer, another if the jury
found against him, one if the jury found in favor of Key Point on its counterclaim, and
another if the jury found against it. The district court instructed the jury on how to use
these forms; these instructions included the following:


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      Should you find that James Spencer and Daniel Young were equally
      negligent or that neither was negligent, then neither can recover from the
      other and you should find against James Spencer on his complaint and
      against Key Point Carriers on its counterclaim.

After deliberations the jury submitted two verdict forms to the district court, finding
against Spencer on his claim and against Key Point on its counterclaim. When the
district court asked whether the jury had determined the amount of damages Spencer
was due, the foreperson responded that the jury had not awarded any damages because
it had not found in his favor.

      Spencer moved for judgment as a matter of law or for a new trial, arguing that
the court had erred in denying its pretrial motions to exclude the alcohol related
evidence and in accepting the jury's verdict which it said was not supported by the
evidence and was ambiguous. Young and Key Point responded that Spencer had
waived his evidentiary objections by raising the topic in his opening statement and
introducing the evidence at trial, that the evidence was properly admitted in any event,
and that the verdict was supported by the record and was not ambiguous. The court
denied Spencer's motion. Spencer appeals and asks for a new trial.

       Spencer argues that the district court erred in denying his motions to exclude
the alcohol related evidence. Appellees respond that Spencer waived this issue by
referring to the evidence in his opening statement and failing to object when it was
admitted during the trial. They add that the evidence was properly admissible in any
event. We generally review evidentiary rulings for an abuse of discretion, General
Electric Co. v. Joiner, 522 U.S. 136, 151 (1997); Miles v. General Motors Corp., 262
F.3d 720, 723 (8th Cir. 2001), but if the evidence was introduced at trial without
objection our review is for plain error. Ross v. Douglas County, 234 F.3d 391, 394
(8th Cir. 2000).

      The denial of a motion in limine does not generally preserve error for appellate
review. Id. But there is an exception if the court made a definitive ruling on a fully

                                          -5-
briefed and argued motion which affected the entire course of the trial. In that limited
circumstance the requirement for an objection would be more of a formality. See
Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1118 (8th Cir. 1985).
Spencer argues that his introduction of evidence about the beer did not waive his right
to appeal its admission because the court's denial of his motion to exclude it just
before trial was definitive and affected the rest of the trial, citing Sprynczynatyk.
While Spencer's motion to exclude was briefed and argued several times before trial,
the district court never made a definitive ruling on the issue. Sprynczynatyk is thus
inapposite. Here, the court made it clear that it would reconsider Spencer's motion if
he renewed his objection when defendants offered the evidence if he felt they had not
laid a proper foundation.

      In managing the course of a trial a district court may wait to make a definitive
evidentiary ruling until its decision can be informed by a fuller context. See Luce v.
United States, 469 U.S. 38, 41 n.4 (1984). When a party has received an unfavorable
preliminary ruling that indicates the court plans to admit evidence, the party must
decide whether to wait for a definitive ruling at trial or to try to take the sting out of
the evidence by being the one first to introduce it. The general rule is that "a party
introducing evidence cannot complain on appeal that the evidence was erroneously
admitted." Canny v. Dr. Pepper/Seven-Up Bottling Group, 439 F.3d 894, 904 (2006),
quoting Ohler v. United States, 529 U.S. 753, 755 (2000). Canny was a disability case
in which the district court granted the defendant's request to exclude a letter from its
counsel with the proviso that the plaintiff would be able to cross examine defense
witnesses about the substance of the letter; the defendant decided to introduce the
contents of the letter itself and on appeal it was not permitted to "avoid the
consequence of its own trial tactic by arguing it was forced to introduce the evidence
during the direct examination . . . to diminish the prejudice." Id. at 904. When
Spencer made the strategic decision to take the sting out of the alcohol related
evidence by mentioning it during his opening statement and introducing it later, he
likewise waived his right to appeal the issue.



                                           -6-
       Because Spencer himself introduced the alcohol related evidence, we review
the district court's evidentiary ruling for plain error. Ross, 234 F.3d at 394. Although
Spencer urges us to follow Arkansas law here, the Federal Rules of Evidence provide
the standards for relevancy in a diversity action. See Hanna v. Plumer, 380 U.S. 460,
472-73 (1965). Unlike the Arkansas rule which may limit admission of alcohol
consumption short of intoxication, see Wade v. Grace, 902 S.W.2d 785, 789-90 (Ark.
1995), evidence of alcohol consumption may be relevant under the federal rules to
the question of whether a driver contributed to a collision. See Miles, 262 F.3d at 723.
Here, Spencer admitted that he consumed one beer within the hour prior to the
collision and first responders smelled alcohol on his breath. The jury could have
inferred from this evidence that Spencer's alcohol consumption contributed to his
headlights being off and to inattentiveness to oncoming traffic. Based on all of the
evidence in the record, we conclude there was no plain error in admitting the alcohol
related evidence.

       Spencer argues that the district court also erred in denying his posttrial motion
for judgment as a matter of law or for a new trial. He says the verdict was ambiguous
and inconsistent because the jury had been instructed to "compare the percentages"
of the parties' negligence if it found that both proximately caused the collision, and the
jury did not assign percentages of fault when it returned its verdict. Spencer stipulated
to both the jury instructions and verdict forms, however. Neither the instructions nor
the verdict forms told the jury to write down the percentage of fault allocated to either
party. The jury verdict was consistent with the instructions, and the logical conclusion
from the verdict against both parties is that the jury found them equally negligent.
Furthermore, failure "to object to any asserted inconsistencies [or to] move for
resubmission of the inconsistent verdict before the jury is discharged" waives the right
to a new trial. Brode v. Cohn, 966 F.2d 1237, 1239 (8th Cir. 1992), quoting Lockard
v. Missouri Pacific Ry., 894 F.2d 299, 304 (8th Cir. 1990).

       After the jury announced its verdict, the district court asked counsel if they had
"[a]ny comments or observations." Spencer's counsel responded, "None, your Honor,"


                                           -7-
and the court dismissed the jury. If Spencer believed the verdict was ambiguous or
inconsistent, he should have requested that the matter be resubmitted to the jury
before it was discharged. The preferred procedure is "to allow the original jury to
eliminate any inconsistencies without the need to present the evidence to a new jury."
Id. Because Spencer did not object to the verdict before the jury was discharged and
because the jury instructions and verdict indicate that the jury found the parties
equally negligent, the district court did not err in denying Spencer's motion for
judgment as a matter of law or for a new trial.

      For these reasons we affirm the judgment of the district court.
                     ________________________________




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