                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3679
                        ___________________________

                                Fernando C. Valadez

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                   Watkins Motor Lines, Inc.; Dennis D. Watts

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 13, 2014
                               Filed: July 11, 2014
                                 ____________

Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       Fernando Valadez was injured in a traffic accident when his van was struck by
a semi-truck driven by Dennis Watts and owned by Watkins Motor Lines, Inc.
(Watkins). Valadez sued Watts and Watkins for his injuries, including his past and
future medical expenses and impaired earning capacity. The jury returned a verdict
assigning no fault to either party. Valadez appeals evidentiary rulings made by the
district court, which he claims affected the jury’s verdict. Having jurisdiction under
28 U.S.C. § 1291, we reverse and remand for further proceedings.

                                   I. Background

       In 2006, Fernando Valadez was employed as a delivery driver. On February
2, 2006, Valadez was traveling with Arturo Contreras-Sanchez to St. Louis, Missouri,
to pick up vehicles purchased at an automotive auction house and transport the
vehicles to El Paso, Texas. The men arrived in St. Louis, picked up the vehicles at
the auction house, and prepared to leave. Valadez was to drive a 1996 Plymouth
Grand Voyager and tow a 2001 Ford Escape on a tow dolly. Contreras-Sanchez was
to drive separately in a 2001 Ford F150 pick-up truck. Valadez and Contreras-
Sanchez claim to have attached a simple tow light kit to the Ford Escape, consisting
of two bulbs to signal braking and turning. In order to attach the kit, Valadez had to
splice the wires on the back of the Plymouth Grand Voyager. After making sure the
lights were working prior to departure, the pair left for El Paso with Valadez
following Contreras-Sanchez.

       At around 2 a.m. on February 3, 2006, Valadez and Contreras-Sanchez were
approaching the exit for Highway YY, where they had previously agreed to stop.
When the two began to exit, the Ford Escape that Valadez was towing was hit from
behind by the semi-truck driven by Watts. Both the Ford Escape and the Plymouth
Grand Voyager were pushed off the road into the ditch. Valadez and
Contreras-Sanchez claim to have put their turn signals on and begun to slow down
well in advance of the exit. Valadez asserts he slowed down from 60–65 mph to 55
mph at the time of the accident. Watts claims Valadez was instead stopped on the
highway. Watts also claims not to have seen any tow lights on the back of the
vehicle. No tow lights or remains of tow lights were found by the investigating
officer. Valadez suggests the tow lights were destroyed in the crash.



                                         -2-
      After the accident, Valadez was taken by ambulance to an emergency room
where he received treatment for injuries to his lower back. Since the accident,
Valadez has continued to suffer from chronic pain to his lower back, and doctors have
recommended that Valadez have surgery. Valadez is no longer able to do the same
type of work and has since been forced to take lower paying jobs.

       Valadez brought a personal injury suit against Watts and Watkins in the
Eastern District of Missouri based on diversity jurisdiction. Prior to trial, Valadez
brought a motion in limine to exclude portions of the accident report that presented
the opinions and conclusions of the investigating officer. The district court excluded
the entire accident report over Watts’ and Watkins’ objections, citing primarily the
unavailability of the investigating officer who authored the accident report. The
district court stated that the parties could stipulate to any facts contained in the report,
but that the report itself was inadmissible.

       During the trial, Watts testified that Valadez’s vehicle looked “absolutely
stopped” on the highway and that he told the investigating officer at the scene that
Valadez was stopped on the highway. Seeking to impeach Watts’ testimony, Valadez
presented the testimony of Sergeant Woody Hicks, the officer who reviewed the
accident report, as to what information the investigating officer included in the
accident report. Mr. Cervantes, plaintiff’s counsel, asked Sergeant Hicks whether
there were any statements in the accident report suggesting Valadez was stopped on
the highway. Sergeant Hicks testified that there was no mention in the accident report
of Watts telling the officer at the scene that Valadez’s vehicle was stopped. The
relevant testimony is as follows:

       Mr. Cervantes:     And did the police officer write a quotation down . . .
                          when he interviewed . . . Mr. Watts?

       ...


                                            -3-
Sergeant Hicks: He wrote, “Driver one stated, ‘I was driving
                westbound. And all of [a] sudden, a vehicle without
                taillights was in front of me—in front of me, and I
                went—and went under my truck. I then pushed him
                off in a ditch.’”

...

Mr. Cervantes:   And is there any mention by Mr. Watts in the quoted
                 statement that he reported to the police officer that my
                 client’s vehicle was stopped on the highway?

Sergeant Hicks: No, there is not.

...

Mr. Cervantes:   Is there a box on the box [sic] that can be checked
                 when it has been reported when a vehicle was
                 improperly stopped on the highway?

Sergeant Hicks: Yes.

...

Mr. Cervantes:   . . . And if it has been reported to the police officer that
                 someone claims that a vehicle has been improperly
                 stopped on the highway, he can check that box;
                 correct?

Sergeant Hicks: If the officer can prove that it was stopped on the
                highway.

Mr. Cervantes:   And in this case, the police officer did not check for
                 my client that he was improperly stopped on the
                 highway; correct?

Sergeant Hicks: Correct. He did not check that.

                                    -4-
       Following this exchange, Mr. Swift, who was jointly representing Watts and
Watkins, argued to the court that Sergeant Hicks’ response that the investigating
officer will check the “improperly stopped on the highway” box “if the officer can
prove that [the vehicle] was stopped” opened the door to asking about the
investigating officer’s opinions and conclusions on cross-examination. Mr. Swift
noted that the boxes in the accident report that Mr. Cervantes inquired about were
part of a section entitled “Probable Contributing Circumstances,”1 where the
investigating officer can note possible causes of the accident. In that section, multiple
“Probable Contributing Circumstances” are listed, each with a check box next to it
that could be checked or left blank. Mr. Swift drew the court’s attention to the fact
that other boxes, ones not mentioned by Mr. Cervantes during his examination of
Sergeant Hicks, were checked. Mr. Swift suggested that Mr. Cervantes’ questions to
Sergeant Hicks may have left the improper impression that no other boxes were
checked and/or there was nothing else the officer thought he could prove regarding
a possible cause for the accident. Mr. Swift argued that Mr. Cervantes had “opened
the door” to improper evidence such that Mr. Swift should be allowed to “cure” the
error by inquiring about whether any other boxes were checked.

      Mr. Cervantes objected, arguing he had not opened the door to improper
evidence. Mr. Cervantes suggested the purpose of his questions was simply to find
out whether there was a check box for a vehicle being “improperly stopped on the
highway” and whether that box was checked. By eliciting the fact that the box had
not been checked, Mr. Cervantes intended to impeach Watts; he was highlighting the
possible inconsistency between: (1) Watts’ testimony that he had told the officer
Valadez was stopped; and (2) there being no mention in the accident report of Watts

      1
        The “Probable Contributing Circumstances” section of the accident report
form appears as one large “box” and contains two identical columns of small boxes
that can be checked, one column for each vehicle involved (V1 and V2), identifying
various possible causes of an accident.

                                          -5-
making a statement that Valadez was stopped. Mr. Cervantes also pointed out that,
during his direct examination, he never mentioned the title of the section, “Probable
Contributing Circumstances.” The district court overruled the objection, and Mr.
Swift was allowed to ask whether other boxes in this section were checked. Mr. Swift
then cross-examined Sergeant Hicks as follows:

      Mr. Swift:        Okay. And you were asked about Box 18 . . . . And
                        that box is “[P]robable [C]ontributing
                        [C]ircumstances;” true?

      Sergeant Hicks: Yes.

      Mr. Swift:        And in that box you are asked about “improperly
                        stopped on the roadway” and [the investigating
                        officer], I think he said, could not prove that. So he
                        did not check that box, true?

      Sergeant Hicks: Correct.

      Mr. Swift:        But [the investigating officer] did check some
                        box—boxes with respect to his official conclusions
                        that he felt he could prove, true?

      Sergeant Hicks: Yes.

      ...

      Mr. Swift:        Sergeant, [the investigating officer] did check boxes
                        in the “Probable Contributing Circumstances” part of
                        the report; true?

      Sergeant Hicks: Yeah.

      Mr. Swift:        And what was the first box he checked with respect to
                        the Valadez vehicle?


                                         -6-
      Sergeant Hicks: “Vehicle defects.”

      Mr. Swift:        Okay. And did he check another box with respect to
                        the Valadez vehicle?

      Sergeant Hicks: Yes.

      Mr. Swift:        And what was that box?

      Sergeant Hicks: “Improper lane use or change.”

      ...

      Mr. Swift:        And what was the box checked for “Probable
                        Contributing Circumstances” of the Watkins Motor
                        Lines vehicle and Mr. Watts[’] operation?

      ...

      Sergeant Hicks: “None.”

       During closing arguments, Mr. Swift relied significantly on Sergeant Hicks’
testimony regarding the “Probable Contributing Circumstances” as listed in the
accident report. Mr. Swift argued, over Mr. Cervantes’ repeated objections, that the
jury should focus on the conclusions reached by the investigating officer:

       Mr. Swift:        I think the first thing you need to think about is what
                         the official State Highway Patrol report said. . . .

       ...

       Mr. Swift:        . . . [A]bout [what] the “Probable Contributing
                         Circumstances” were? You know what they marked
                         for Watts and Watkins? “None.” The official report
                         from the Missouri Highway Patrol marked “None.”
                         They did mark “Improper Lane Usage” and “Vehicle

                                         -7-
                          Defect” for Mr. Valadez. That’s what the official
                          report said, and that’s what you heard in evidence.

       Subsequently, the jury returned a verdict assigning no fault for the accident to
either party. Valadez appeals the district court’s decision to allow the admission of
certain portions of the accident report containing the conclusions of the non-testifying
investigative officer, which had previously been ruled inadmissible, under the theory
that Valadez had opened the door to their admission.

                                    II. Discussion

       In a diversity case, questions about the admissibility of evidence are governed
by the Federal Rules of Evidence. Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d
1104, 1107 (8th Cir. 2013). We review a district court’s evidentiary rulings for an
abuse of discretion. United States v. Pirani, 406 F.3d 543, 555 (8th Cir. 2005) (en
banc). Where we find an abuse of discretion, we must then determine whether the
error was harmless. United States v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002)
(citing United States v. Byler, 98 F.3d 391, 394 (8th Cir. 1996)). An error is harmless
if we find that the error did not have a “substantial influence” on the jury’s verdict.
 Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995).

       Valadez claims the district court abused its discretion when it allowed Watts
and Watkins to introduce substantive evidence of fault from the accident report,
which the district court had previously ruled inadmissible. The district court’s
pre-trial ruling was that the entire accident report was inadmissible. While the record
is not entirely clear as to the district court’s reasoning, it appears the court was most
concerned about the unavailability of the officer. The district court’s concern about
the unavailability of the investigating officer suggests the district court found the
accident report was insufficiently trustworthy. Therefore, we believe the district court
was concerned the entire accident report was hearsay that did not fall within any
applicable exception. See Fed. R. Evid. 803(6) & (8) (Both the business records
                                          -8-
exception and public records exception require a finding that “neither the source of
the information nor other circumstances indicate a lack of trustworthiness.”).
Because Watts and Watkins do not challenge that initial ruling on appeal, we accept
the district court’s conclusion that the accident report was inadmissible hearsay.

        Valadez argues the district court erred in concluding he had opened the door
to rebuttal evidence. He asserts that he did not open the door to inadmissible
evidence, because his purpose in asking Sergeant Hicks about the lack of a statement
in the accident report was not to admit the investigating officer’s opinions and
conclusions as substantive evidence. Rather, the purpose was to impeach Watts by
showing the inconsistency between the accident report and his testimony at trial. In
his testimony, Watts claimed he told the officer at the scene that Valadez’s vehicle
was stopped on the highway. To contradict this statement, Mr. Cervantes sought to
elicit from Sergeant Hicks that there was no mention in the investigating officer’s
accident report that Valadez’s vehicle was stopped, or reported as stopped, on the
highway. Watts and Watkins counter that Mr. Cervantes’ questioning did open the
door, by soliciting an answer from Sergeant Hicks regarding what the investigating
officer could “prove.” According to Watts and Watkins, the district court did not err
in allowing Mr. Swift to inquire further about the investigating officer’s other
opinions and conclusions regarding the “Probable Contributing Circumstances” of
the accident, as reflected in whether additional boxes were, or were not, checked.

      “‘The doctrine of opening the door allows a party to explore otherwise
inadmissible evidence on cross-examination when the opposing party has made unfair
prejudicial use of related evidence on direct examination.’” United States v. Midkiff,
614 F.3d 431, 442 (8th Cir. 2010) (quoting United States v. Durham, 868 F.2d 1010,
1012 (8th Cir. 1989)). In theory, the admission of inadmissible evidence allows the
injured party to cure the problem and “clear up the false impression” or to “clarify or
complete an issue opened up by [opposing] counsel.” United States v. Womochil,
778 F.2d 1311, 1315 (8th Cir. 1985). But the door is not opened to all similar,

                                         -9-
inadmissible evidence. Rather, “[t]he evidence introduced [in response] must rebut
something that had been elicited . . . .” United States v. Finch, 16 F.3d 228, 233 (8th
Cir. 1994). The doctrine of opening the door cannot “‘be subverted into a rule for
injection of prejudice.’” United States v. Brumfield, 686 F.3d 960, 964 (8th Cir.
2012) (quoting Durham, 868 F.2d at 1012).

       As an initial matter, we doubt that Valadez’s questioning elicited inadmissible
evidence such that the door was open to rebuttal in the first instance. Valadez
attempted to impeach Watts by showing that Watts’ testimony was inconsistent with
the investigating officer’s report. “‘Under certain circumstances, a witness’s prior
silence regarding critical facts may constitute a prior inconsistent statement where
failure to mention those matters . . . conflict[s] with that which is later recalled.’”
United States v. Vaughn, 370 F.3d 1049, 1053 n.2 (10th Cir. 2004) (quoting United
States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995)). That is true here. If Watts
thought Valadez was stopped on the road, he reasonably would have told the
investigating officer that important fact. And the investigating officer would
reasonably have recorded it.

       Evidence that is inadmissible for one purpose may be admissible for another
purpose. See Fed. R. Evid. 105. A statement offered to impeach credibility by
showing inconsistency is not offered for the truth of the matter asserted in the
statement and is therefore not hearsay at all. See Fed. R. Evid. 801(c) (“‘Hearsay’
means a statement that . . . a party offers in evidence to prove the truth of the matter
asserted in the statement.”). As long as the purpose of the question is not to elicit an
out-of-court statement for the truth of the matter asserted, then the answer to the
question does not call for hearsay, even when the answer includes the content of the
out-of-court statement. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172–73
& n.18 (1988). Thus, if the purpose of Mr. Cervantes’ question was to attempt to
demonstrate the inconsistency between Watts’ current testimony and what he told the
investigating officer at the scene (as illustrated by what the officer recorded), then

                                         -10-
Mr. Cervantes’ question does not elicit hearsay. See id. Because that was the
purpose, Mr. Cervantes did not elicit inadmissible hearsay.

       Even if we were to assume that Mr. Cervantes’ questioning—regarding
whether a box on an accident report was checked—improperly called for an
inadmissible opinion as substantive evidence of fault, we find that Mr. Swift’s
follow-up questions about the officer’s other conclusions in the accident report did
not “clear up” any potential misimpression left by Mr. Cervantes’ questions. The
remedy for improper evidence is not always additional improper evidence. The
doctrine of opening the door is more limited than that. Evidence allowed through the
open door “must rebut something that had been elicited.” Finch, 16 F.3d at 233. The
rebuttal evidence offered to cure the error must be commensurate with the magnitude
of the error itself, or the extent to which the door was opened. Otherwise, courts risk
subverting the doctrine of opening the door “into a rule for injection of prejudice.’”
Brumfield, 686 F.3d at 964 (quoting Durham, 868 F.2d at 1012). Quite simply, a
minor mistake by one party does not give permission to an opposing party to admit
any and all otherwise inadmissible evidence that it so desires.

       Here, Mr. Swift’s questions went too far—moving beyond remedying an
implication that no other boxes were checked. But that is not to say that Watts and
Watkins were without a remedy. To the extent they were concerned about improper
prejudice, a limiting instruction would have addressed those concerns. Fed. R. Evid.
105 (“If the court admits evidence that is admissible against a party or for a
purpose—but not against another party or for another purpose—the court, on timely
request, must restrict the evidence to its proper scope and instruct the jury
accordingly.”). A limiting instruction would have informed the jury that the fact the
“improperly stopped on the highway” box was not checked was admissible only for
purposes of impeachment and was not to be considered as substantive evidence of
fault.



                                         -11-
       Given the district court’s pre-trial ruling that the accident report was
inadmissible, Watts and Watkins should not have been allowed to introduce the
officer’s opinions and conclusions from the accident report. We are particularly
troubled by Mr. Swift’s emphasis of this evidence in his closing. In closing, Mr.
Swift reminded the jury of what the “official highway report” concluded—that
Valadez was at fault and that Watts was not at fault. This is exactly the sort of
opinion testimony about an ultimate conclusion that we have cautioned “merely tells
the jury what result to reach” and is therefore “not sufficiently helpful to the trier of
fact to be admissible.” Kostelecky v. NL Acme Tool/NL Industries, Inc., 837 F.2d
828, 830 (8th Cir. 1988) (citing Hogan v. Am. Tel. & Tel. Co., 812 F.2d 409, 411
(8th Cir. 1987)). Having reviewed the entire record, we conclude the introduction of
the investigating officer’s opinions and conclusions by Mr. Swift was improper and
had a substantial influence on the jury’s verdict.

                                   III. Conclusion

      For the reasons stated above, we reverse and remand for a new trial consistent
with this opinion.
                       ______________________________




                                          -12-
