                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 96-2199
                                   ___________

Glen Wood, *
                                       *
           Plaintiff-Appellee,         *
                                       *
The Travelers Insurance                *
Company,                               *   Appeal from United States
                                       *   District Court for the Eastern
           Intervenor-Appellee,        *   District of Arkansas.
                                       *
     v.                                *
                                       *
Minnesota Mining and                   *
Manufacturing Company,                 *
                                       *
           Defendant-Appellant.        *

                                   ___________

                     Submitted:    January 15, 1996

                          Filed:   April 21, 1997
                                   ___________

Before LOKEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


BRIGHT, Circuit Judge.


     Glen Wood sought damages after being struck by Minnesota Mining and
Manufacturing Company’s (3M) train while crossing 3M’s tracks in his
employer’s truck.   The jury returned a $300,000 verdict in favor of Wood.
3M challenges the verdict and raises a variety of evidentiary issues.       We
affirm.
                                 BACKGROUND


     Glen Wood drives a truck for Silica Transport.      On April 10, 1992,
Wood picked up a load at a 3M plant in his tractor-trailer rig and drove
his truck through a 3M railroad crossing as a 3M train moved toward him.
There were no crossbucks or lights at the crossing.      The train engineer
honked the horn, shouted and waved. Because the train was traveling
backwards, the horn faced away from Wood who did not hear these noises from
inside the cab of the truck.     The 3M train ran into Wood’s truck.    The
train engineer jumped off the train before the collision, thus, there was
no one on board when the train struck Wood and the horn was not blowing in
the final seconds before the collision.


     Wood’s employer, Silica Transport, paid 3M $28,000 for damage to 3M’s
train.   Wood subsequently filed suit on April 12, 1994, alleging diversity
jurisdiction pursuant to 28 U.S.C. § 1332 and seeking damages for personal
injuries due to 3M’s negligence.     He alleged permanent injuries to his
lower back and left shoulder, loss of earnings and earning capacity, and
pain and suffering.   A jury returned a verdict in Wood’s favor and awarded
him $300,000 in damages.   3M then filed a motion for judgment as a matter
of law and, in the alternative, for a new trial.   The district court denied
these motions and 3M appealed.


                                 DISCUSSION


     3M raises five issues on appeal.      First, 3M argues that the trial
court erred by denying 3M’s motions for judgment as a matter of law.
Second, 3M asserts the trial court erred in admitting plaintiff’s expert
testimony.    Third, 3M contends the trial court’s exclusion of Wood’s
employer’s payment for damages to 3M’s




                                     -2-
locomotive under Fed.R.Evid. 408 constituted prejudicial error.       Fourth,
3M argues the trial court’s jury instruction regarding the duty of the 3M
railroad to keep a lookout on the train was prejudicially improper.    Fifth,
3M believes the jury verdict was against the weight of the evidence and
required a new trial.     We consider these arguments in turn.


                                     I.


     3M first argues that the district court erred by denying 3M’s motion
for a verdict as a matter of law:


           If during a trial by jury a party has been fully heard on
     an issue and there is no legally sufficient evidentiary basis
     for a reasonable jury to find for that party on that issue, the
     court may determine the issue against that party and may grant
     a motion for judgment as a matter of law against that party .
     . . .


Fed.R.Civ.P. 50.   In making this determination, the trial judge must “view
the evidence in the light most favorable to the plaintiff, and to give the
plaintiff the benefit of all favorable inferences reasonably to be drawn
from the evidence.”   Lang v. Cone, 542 F.2d 751, 754 (8th Cir. 1976); Croom
v. Younts, 323 Ark. 95, 913 S.W.2d 283, 286 (1996).         “We review the
district court’s denial of a motion for judgment as a matter of law de novo
using the same standards as the district court.”   Keenan v. Computer Assoc.
Int’l, Inc., 13 F.3d 1266, 1268 (8th Cir. 1994).


     3M is not entitled to a verdict as a matter of law.    Wood introduced
evidence of an essentially unguarded rail crossing   lacking guards, lights,
or crossbucks.     The effectiveness of stop signs was, at best, nominal.
Finally, the train’s horn failed to alert Wood because it faced the
opposite direction.    Viewing the




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evidence in the light most favorable to Wood supports the trial court’s
denial of 3M’s motion for judgment as a matter of law.


                                         II.


     3M next argues that the district court erred by admitting the
testimony of Archie Burnham and by excluding evidence of a payment by
Wood’s   employer   to   3M   for   damage     to   3M’s   train.     We   review   these
evidentiary rulings only for an abuse of discretion.                Crues v. KFC Corp.,
768 F.2d 230, 233 (8th Cir. 1985).           We consider these arguments in turn.


                                         A.


     Archie Burnham testified as an expert regarding whether 3M properly
constructed the railroad crossing and provided reasonable warning of that
crossing.     3M argues that the trial court abused its discretion because
Burnham’s testimony was irrelevant and unreliable.              We disagree.


     Federal Rule of Evidence 702 governs the admissibility of expert
testimony and the trial judge screens such evidence for relevance and
reliability.    Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579,
589 (1993).    In order to determine relevance, the trial court reviews the
expert testimony to ensure it is scientifically based and will assist the
trier of fact in determining a fact at issue.                  Id. at 589-90.        The
exclusion of an expert’s opinion is proper only if it is “`so fundamentally
unsupported that it can offer no assistance to the jury . . . .’”               Hose v.
Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (quoting
Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)).




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          The district court noted several facts relating to Burnham’s career
which qualify him as an expert.             For example, Burnham, a highway safety
specialist, completed graduate studies at Yale University.                   During his
thirty-year career with the Georgia Department of Transportation, he spent
sixteen years directing the office of traffic and safety which oversees all
of the state’s public railroad crossings.                In addition, Burnham was a
contributing editor of an important text regarding traffic engineering as
it       applies   to   railroad    crossings.      Accordingly,   the   court   properly
considered him an expert in the field of traffic control systems and
railroad crossings.


          The trial court also engaged in a lengthy hearing before determining
that       Burnham’s    testimony    was   relevant.    Appellees’   App.   at   90-100.
Burnham’s testimony assisted the jury in determining whether 3M properly
constructed a railroad crossing on its property and whether 3M provided
reasonable warning of that crossing.             The district court informed the jury
that Burnham’s testimony was not evidence of a legal violation by 3M.
Appellees’ App. at 111-112.1 We do not believe that the trial court erred
in determining that the testimony would assist the jury in determining
whether the crossing was reasonably safe.
          In addition, the district court implicitly determined that the
testimony was reliable.             3M, however, asserts Burnham’s methodology and
fact-gathering techniques relating to his decibel readings and site
distance triangulation were suspect.                The district court reviewed this
methodology at length and did not abuse its




     1
   “I want you to          understand the witness is not telling you that
he thinks there’s          any Arkansas law or regulation that requires a
cross buck. He’s           giving you his opinion as to what he thinks is
the prudent thing          to do on private crossings.” Appellees’ App.
at 112.

                                              -5-
discretion      in   determining    that    Burnham’s      methodology    was   sound.
Furthermore, the fact that Burnham lacked expertise in private crossings
did not render his testimony unhelpful.


     Finally, 3M argues that the district judge failed in his duty as the
“gatekeeper” for the expert testimony.           Before trial, Burnham stated that
he would not testify about the operation of the brake system or whether the
train engineer applied the brakes too late.             At trial, however, Burnham
testified to both issues without objection.             Even if such testimony was
inappropriate, we conclude that admitting it was harmless error.             We do not
believe   the    jury’s   verdict   would    have   been    different    without   this
testimony.


     We conclude, therefore, that the district court did not abuse its
discretion by admitting Burnham’s testimony.


                                           B.


     3M also asserts that the district court erroneously excluded 3M’s
evidence that Wood’s employer, Silica Transport, paid $28,000 for damages
to 3M’s locomotive.       The district court refused to admit this evidence
under Fed.R.Evid. 408, which states in relevant part:


           Evidence of (1) furnishing or offering or promising to
     furnish, or (2) accepting or offering or promising to accept,
     a valuable consideration in compromising or attempting to
     compromise a claim which was disputed as to either validity or
     amount, is not admissible to prove liability for or invalidity
     of the claim or its amount. . . .


     3M asserts that, in order for Rule 408 to be operative, litigation
must be taking place or threatened and cites to S.A.




                                           -6-
Healy Co. v. Milwaukee Metro Sewerage Dist., 50 F.3d 476, 480 (7th Cir.
1995), for support.      In this case, Silica Transport paid 3M $28,000
approximately two years before Wood filed his lawsuit.


     We need not reach that issue, however, because we conclude that the
payment by Wood’s employer was irrelevant to Wood’s case against 3M.
Fed.R.Evid. 402.   The employer’s financial concession is not binding in any
way on Wood’s legal action.      Even if relevant, we conclude that this
evidence’s unfair prejudicial effect substantially outweighs its probative
value because a jury could be unfairly swayed by evidence of Silica’s
financial concession to 3M.    Fed.R.Evid. 403.   Accordingly, the district
court properly excluded evidence of Silica’s payment to 3M.


                                    III.


     3M next argues that the district court gave an incorrect jury
instruction.   The district court submitted the following instruction,
entitled Duty of Railroad To Keep Lookout, over 3M’s objection:


           All persons operating trains upon any railroad in this
     state shall have the duty to keep a constant lookout for
     persons and property upon, near, or approaching the railroad
     track. A violation of this duty is negligence.

           This does not mean that each member of the train crew
     must keep a constant lookout, but it does mean that an
     efficient lookout must be kept by some member of the crew at
     all times.


Appellant’s App. at 399.   Arkansas law states: “It shall be the duty of all
persons running trains in this state upon any railroad to keep a constant
lookout for all persons, including licensees and trespassers, and property
upon the track of any and all railroads.”




                                     -7-
Ark. Code Ann. § 23-12-907(a)(1) (1995).         We review the district court’s
determinations of state law de novo.        Salve Regina College v. Russell, 499
U.S. 225, 231 (1991).


      3M objected to this instruction, arguing that the statute            applied
to public railroads involved in interstate commerce and not to private
railroads such as 3M’s.         3M further argues that the Arkansas statute
regards “railroads” as being “on an equal basis with other persons, firms,
and corporations . . . .”        Ark. Code. Ann. §§ 23-12-901, 23-12-907(c).
According    to   3M,   the   legislature   expressed   its   intention   to   treat
“railroads” as a separate jural entity which could sue and be sued, like
any   other person, firm, or corporation.            In short, 3M asserts the
instruction effectively imposed an obligation on 3M that state law did not
recognize.


      The district court determined that the statute “applies only to `all
persons operating trains,’ it does not require it to be a railroad
corporation or common carrier, and there’s no requirement that it be a
public road, and, therefore, I think all of the definitions in the
instruction are met by the facts in the case.”            Appellee’s App. at 205.
We agree that a plain reading of the statute supports the district court’s
jury instructions regarding 3M’s duty to keep a lookout on its railroad.



      Alternatively, 3M argues that the instruction was unwarranted in this
case because 3M introduced undisputed evidence that the train engineer kept
a lookout, saw the truck, blew the horn, applied the brakes, yelled and
waved to warn Wood of the approaching train.            We disagree.   Whether the
engineer kept an adequate lookout was a fact question for the jury and we
decline to disturb that conclusion here.




                                        -8-
                                      IV.


     Finally, 3M contends that the district court erroneously denied 3M’s
motion for a new trial because the verdict is against the weight of the
evidence.   The authority to grant or deny a new trial is a matter within
the district court’s discretion and is not to be reversed absent a clear
abuse of that discretion.     Keenan, 13 F.3d at 1269.   “The key question is
whether a new trial should have been granted to avoid a miscarriage of
justice.”   Id.   Where, as here, the “basis of the motion for a new trial
is that the jury’s verdict is against the weight of the evidence, the
district court’s denial of the motion `is virtually unassailable on
appeal.’”   Keenan, 13 F.3d at 1269 (quoting Peterson ex rel. Peterson v.
General Motors Corp., 904 F.2d 436, 439-40 (8th Cir. 1990)).    Based on the
facts presented at trial and discussed in Section I, there is evidence to
support the jury’s verdict.    Accordingly, we decline to do disturb the jury
verdict.


                                  CONCLUSION


     For the foregoing reasons, we affirm the decision of the district
court.


     A true copy.


            Attest:


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




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