Randy Russell, et al v. Whirlpool Corp.

Filing

OPINION FILED - THE COURT: Kermit E. Bye, Raymond W. Gruender and Bobby E. Shepherd AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [3985330] [12-1451]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1451
___________________________
Randy Russell & Antoinette Russell
lllllllllllllllllllll Plaintiff - Appellee
v.
Whirlpool Corporation
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 19, 2012
Filed: December 17, 2012
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Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
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BYE, Circuit Judge.

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A fire destroyed the home of Randy and Antoinette Russell. The Russells filed
suit against Whirlpool, alleging the fire was caused by a defective refrigerator
Whirlpool designed, manufactured, and sold. The jury found in favor of the Russells.
Whirlpool appeals, contending the Russells' expert witness did not use a sufficiently
reliable methodology, the Russells may not infer a product defect from circumstantial
evidence under Missouri tort law, and the district court1 erroneously allowed the
Russells to introduce evidence of other Whirlpool refrigerator fires. For the reasons
discussed below, we affirm.
I
The fire started in the Russells' Iberia, Missouri, home on February 6, 2010.
The Russells were in Cape Girardeau, Missouri, that day, and no witnesses to the fire
were reported. Firefighters from the Brumley Volunteer Fire Department and the
Iberia Fire Department responded to the scene. They tried to extinguish the fire but
gave up after ninety minutes. Lieutenant Training Officer Tony Smoot, who
supervised the fire response, did not call the State Fire Marshal to investigate the
origin and cause of the fire because he believed the house was "too far gone." In fact,
the fire at the Russells' home was a "total burn" because most combustibles were
consumed in the fire and the fire eventually self-extinguished. J.A. 463.
The Russells retained Larry Giggy, a certified fire investigator in Missouri, to
determine the origin and cause of the fire. Giggy interviewed Mr. Russell regarding
several possible causes of the fire, including an external wood burning stove, the
house's hot water system, Mrs. Russell's smoking habits, candles and other open
flames, space heaters, and flammable chemicals. Giggy then walked around the
house twice, taking photographs the second time. He examined the remaining studs

1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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left on the concrete wall in the basement. Noticing the studs in the middle part of the
wall were more significantly burned than those on the sides, he believed the middle
of the house was a "suspect area." He found and examined several appliances,
including the backup electric furnace, washer and dryer, and air handling unit, but
could not find any identifiable fire patterns. He noticed nothing unusual about the
internal wiring in the house and eliminated the circuit breaker panel as a potential
cause.
Giggy found the stove and microwave, and after examining them, noticed they
were damaged more heavily on their left sides, as viewed from the front. He asked
Mr. Russell what had been located to the left of the stove and microwave. Mr.
Russell told him the refrigerator had been there. This suggested to Giggy the fire
spread from the refrigerator to the adjacent appliances, burning their left sides first
and thereby causing greater damage. He then located the refrigerator at the bottom
of the debris, unlike the stove and microwave, which did not have debris on top of
them. This difference led Giggy to believe the refrigerator fell through the floor prior
to the time the stove and microwave fell through the floor. The only parts of the
refrigerator Giggy could identify were some of the cooling coils, some parts of the
frame, and the compressor, the pump that circulates refrigerant throughout the unit.
The metal appeared thinner on the bottom part of the refrigerator frame, which would
have been close to the compressor. He also noticed although the refrigerator was
destroyed almost beyond recognition, the nearby appliances could still be recognized
for their intended function and did not burn as significantly as the refrigerator. This
indicated to him the refrigerator had burned longer and hotter than the other
appliances. After considering all these factors, Giggy concluded the fire started in the
refrigerator.
The Russells also retained Carl Martin, a registered professional engineer, to
perform a cause investigation and engineering analysis. Martin relied on Giggy's
determination of the refrigerator as the area of origin. Martin observed the surfaces
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on the inside of the compressor compartment experienced great heat exposure and the
compressor windings were not energized when the fire attacked the compressor. This
suggested the compressor was not working at the time of the fire. Martin also noticed
the side wall surfaces of the compressor had suffered substantial damage, which
would not occur had the fire originated in some other source. These observations led
Martin to conclude the fire was caused by an electrical malfunction inside the
compressor.
The Russells filed suit against Whirlpool alleging a defective refrigerator
designed, manufactured, and sold by Whirlpool caused the fire. Their claim did not
identify a specific defect, but instead inferred the existence of a defect from
circumstantial evidence. At the close of discovery, Whirlpool moved to strike the
opinions of Larry Giggy and Carl Martin, arguing they did not meet the standard for
admissibility the Supreme Court stated in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). The district court denied the motions, as well as
Whirlpool's related motion for summary judgment. Whirlpool renewed its motion to
strike shortly before trial and requested the district court hold a hearing pursuant to
Federal Rule of Evidence 104(a) to resolve the preliminary question regarding Giggy
and Martin's qualifications to testify. The court denied the motion and agreed instead
to evaluate the reliability of expert witness testimony as it came in. At that time,
Whirlpool also filed a motion in limine to prevent the Russells from offering evidence
of other similar incidents of fires alleged to have started in or around Whirlpool
refrigerators. The court granted the motion and required the Russells to approach the
bench and receive permission before offering such evidence.
At trial, Giggy testified regarding his investigation of the fire scene, his
conclusion, and his methods. During cross-examination, Whirlpool's attorneys
questioned Giggy about the extent to which he had employed National Fire Protection
Association (NFPA) 921, Guide for Fire and Explosion Investigations. The NFPA
is a nonprofit organization dedicated to fire prevention, and NFPA 921 is a document
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intended to "establish guidelines and recommendations for the safe and systematic
investigation or analysis of fire and explosion incidents." NFPA 921 § 1.2.1.
Whirlpool presented a transcript from a deposition Giggy gave in a different case in
2008 in which he stated NFPA 921 is the standard to which fire investigators are
held. In his trial testimony in this case, however, Giggy maintained NFPA 921 is
merely a guide for origin-and-cause investigations, rather than a standard. Whirlpool
again renewed its motion to strike Giggy's opinion at the conclusion of his testimony.
The district court stated it believed Giggy's qualifications under Daubert were "pretty
shaky," but denied the motion.
Carl Martin also testified regarding his theory of the fire's origin. In response
to a question regarding the significance of the lack of power in the compressor at the
time of the fire, he stated, "It tells me that the fire originates within the compressor
compartment and progresses outward from that location. And obviously it's not a big
secret here. The theory is in the past there have been problems with the relay
contactors." J.A. 590. Whirlpool immediately objected and argued the Russells had
introduced similar incidents evidence in violation of the court's in limine order.
Whirlpool moved for a mistrial, or in the alternative, to strike the comment and give
a curative instruction to the jury. The court denied the motion for a mistrial but
granted the motion to strike and instructed the jury to disregard Martin's comment.
At the conclusion of trial, the jury returned a verdict in favor of the Russells
in the amount of $1,377,550.00. Whirlpool filed a renewed motion for judgment as
a matter of law, or in the alternative, for a new trial. It also moved once again to
strike Giggy and Martin's testimony. The court denied the motions. Whirlpool
appealed.

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II
Whirlpool argues Giggy's testimony is inadmissible, and the district court
therefore erred by admitting it, for two reasons. First, Giggy's failure to employ
NFPA 921 automatically subjects his expert opinion to exclusion. Second, Giggy's
failure to use any scientific methodology for his origin-and-cause investigation makes
his opinions unreliable.
"Decisions concerning the admission of expert testimony lie within the broad
discretion of the district court, and these decisions will not be disturbed on appeal
absent an abuse of that discretion." Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
296 (8th Cir. 1996). An abuse of discretion occurs when a district court: (1) does not
consider a relevant factor that should have been given significant weight; (2)
considers and gives significant weight to an irrelevant or improper factor; or (3)
considers all and only proper factors but commits a clear error of judgment in
weighing those factors. Dunn v. Nexgrill Industries, Inc., 636 F.3d 1049, 1055 (8th
Cir. 2011). In the context of admitting evidence, an abuse of discretion occurs "only
where the error is clear and prejudicial to the outcome of the proceeding." Torbit v.
Ryder Sys., Inc., 416 F.3d 898, 903 (8th Cir. 2005).
A. NFPA 921
Whirlpool argues Giggy's investigative methods deviated from NFPA 921 and
that deviation required the district court to exclude his testimony. According to
Whirlpool, Giggy acknowledged NFPA 921 is a mandatory investigative procedure
in a 2008 deposition in an unrelated case in which he said NFPA 921 is "the standard
of [sic] which, you know, you're held." J.A. 460. In his investigation of the Russells'
home, Whirlpool contends Giggy did not take many of the actions NFPA 921
recommends, including considering and eliminating other potential causes of the fire,
analyzing burn patterns to determine the area of origin, and investigating the way in
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which the fire damaged the home's electrical circuits, a technique known as "arc
mapping." Therefore, the district court should have excluded Giggy's testimony for
his failure to comply with a mandatory procedure.
We disagree. Whirlpool does not accurately summarize our caselaw on this
point. We have held NFPA 921 qualifies as "a reliable method endorsed by a
professional organization," Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d
1054, 1058-59 (8th Cir. 2005), but we have not held NFPA 921 is the only reliable
way to investigate a fire. Our NFPA 921 cases stand for the simple proposition an
expert who purports to follow NFPA 921 must apply its contents reliably. Presley v.
Lakewood Eng'g, 553 F.3d 638, 645 (8th Cir. 2009) (affirming the district court's
exclusion of expert testimony because the expert "failed to follow . . . the standards
he purported to follow"); Fireman's Fund, 394 F.3d at 1060 (affirming the district
court's exclusion of expert testimony because the expert "did not apply the principles
and methods of NFPA 921 reliably to the facts of the case"). Accordingly, Giggy's
testimony can only be excluded on NFPA 921 grounds if he purported to follow
NFPA 921 but did not reliably apply it to the remains of the fire at the Russells' home.
The record shows Giggy did not purport to apply NFPA 921. We take Giggy's
2008 deposition statement to mean only that NFPA 921 is a respected investigative
method, not that it is a method an investigator must attempt to deploy in every case,
including this one. Moreover, several aspects of Giggy's trial testimony indicate he
did not purport to apply NFPA 921. Giggy bluntly and repeatedly stated NFPA is
only a guide. J.A. 456-60. He also conceded he did not perform many of the steps
NFPA 921 recommends a fire investigator take. Further, he testified NFPA 921
cannot be used when a fire leaves an insufficient burn pattern on the structure that
sustained the fire. Id. at 502. A "total burn" fire does not leave sufficient burn
patterns to use NFPA 921, id. at 506, and the fire at the Russells' home was a "total
burn." Id. at 470. In other words, Giggy did not employ NFPA 921 because, given
the extent of the destruction, he believed he could not apply the guideline. In light
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of this evidence, we are convinced Giggy did not attempt to employ NFPA 921 in his
investigation, and therefore, his testimony may not be excluded for failure to reliably
apply its contents.
B. Reliable Methodology
Whirlpool next argues Giggy did not use any scientific methodology
whatsoever in his investigation. Instead, he simply "eyeballed" three appliances he
identified in the debris and concluded the most severely burned was the area of
origin. This technique renders Giggy's testimony little more than lay opinion
"formulated merely upon general observations of the evidence and general scientific
principles." Presley, 553 F.3d at 646. His testimony was therefore unreliable and the
district court should have excluded it.
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
It provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if: (a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
Fed R. Evid. 702. "The main purpose of Daubert exclusion is to prevent juries from
being swayed by dubious scientific testimony." In re Zurn Pex Plumbing Prods. Liab.
Litig., 644 F.3d 604, 613 (8th Cir. 2011). The district court plays the role of a
gatekeeper to "ensur[e] that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Kumho Tire Co. v. Charmichael, 526 U.S. 137,
141 (1999) (quoting Daubert, 509 U.S. at 597). Although the district court is entitled
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to "great latitude" in determining whether an expert meets these requirements, First
Union Nat'l Bank v. Benham, 423 F.3d 855, 861 (8th Cir. 2005), the assumption of
the gatekeeper role is mandatory, not discretionary. Daubert, 509 U.S. at 592-93.
When making the reliability and relevancy determinations, a district court may
consider: (1) whether the theory or technique can be or has been tested; (2) whether
the theory or technique has been subjected to peer review or publication; (3) whether
the theory or technique has a known or potential error rate and standards controlling
the technique's operation; and (4) whether the theory or technique is generally
accepted in the scientific community. Id. at 593-94. "This evidentiary inquiry is
meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert
factors as the particular case demands." Unrein v. Timesavers, Inc., 394 F.3d 1008,
1011 (8th Cir. 2005). "There is no single requirement for admissibility as long as the
proffer indicates that the expert evidence is reliable and relevant." Id.; see also
Daubert, 509 U.S. at 594 ("The inquiry envisioned by Rule 702 is, we emphasize, a
flexible one.").
In the context of fire investigations, we have held expert opinions formed on
the basis of observations and experience may meet this reliability threshold. Shuck
v. CNH America, 498 F.3d 868, 875 (8th Cir. 2007); Hickerson v. Pride Mobility
Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006). In Shuck, we affirmed the
admissibility of the testimony of a fire causation expert and a mechanical expert who
ruled out oil starvation as the cause of a combine fire. The experts based their
testimony on an inspection of the combine and observation of a dismantling of the
combine's engine. The defendants argued the experts' testimony was not based on a
reliable methodology because they did not test damaged combine parts, exemplar
combine parts, or oil from the combine. We rejected that argument and held the
experts used reliable methods when they "observed the relevant evidence, applied
their specialized knowledge, and systematically included or excluded possible
theories of causation." Shuck, 498 F.3d at 875. In Hickerson, the defendant
challenged the plaintiff's expert's conclusion a motorized power scooter caused a
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house fire as too speculative because the expert failed to eliminate other potential
ignition sources. We found "nothing unreliable" in the expert's methodology, in
which he considered burn patterns, identified a point of origin, and eliminated as
many alternative causes of the fire as possible.2 Hickerson, 470 F.3d at 1257. We
have found reliability in these cases without insisting upon rigid adherence to the
Daubert factors. As our prior caselaw instructs, we have reached these conclusions
by examining the facts of each individual case, considering the Daubert factors to the
extent they fit the facts. See Jarequi v. Carter Mfg. Co., 173 F.3d 1076, 1083 (8th
Cir. 1999) ("[T]he district court must customize its [Daubert] inquiry to fit the facts
of each particular case."). With this precedent in mind, we consider Giggy's
methodology.
As noted, Giggy interviewed Mr. Russell and eliminated alternative causes,
documented the scene, and identified a "suspect area" by examining burn patterns on
the studs in the portion of the wall that survived the fire. He reviewed the burn
patterns on the kitchen appliances and confirmed with Mr. Russell the placement of
the appliances in the kitchen before the fire. Based on the burn patterns on those
appliances, the near-complete destruction of the refrigerator, its position at the bottom
of the debris, and the metal thickness variation at the bottom part of the refrigerator
frame, Giggy concluded the fire started in the refrigerator. We believe Giggy's
methods are sufficiently similar to the methods we found reliable in Shuck and
Hickerson. Giggy did more than simply "eyeball" three kitchen appliances. He

2

Whirlpool attempts to distinguish Hickerson by arguing experts for the
plaintiff and defendant agreed on the area of origin in that case. It further argues
unlike Giggy, the plaintiff's expert in Hickerson analyzed burn and smoke patterns
to determine the fire's place of origin. We are not persuaded. The Hickerson court
made no mention of consensus among the experts as a sign of reliability. Instead, it
examined the actual methods used by the expert, as we do here. Moreover, although
the fire in the Russells' home was a "total burn," the record shows Giggy did examine
burn patterns to the extent possible.
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observed the relevant evidence, applied his specialized knowledge, excluded
alternative causal theories, and reached a conclusion. These methods are more
rigorous than the vague theorizing and ipse dixit logic we have rejected in the past.
The analytical gap between the existing evidence and the opinion Giggy offered is not
so great as to require exclusion.
Whirlpool's arguments are better addressed to the jury regarding the weight to
be afforded Giggy's opinion, rather than to the district court on the question of
admissibility. The Supreme Court has emphasized the usual tools to expose flaws in
evidence remain available: "Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S.
at 596; see also Olson v. Ford Motor Co., 481 F.3d 619, 626 (8th Cir. 2007).
Whirlpool made good use of these tools. The jury weighed the conflicting evidence
and credited Giggy's testimony, in spite of Whirlpool's challenges. We find no error
in this exercise of the adversarial process. The district court did not abuse its
discretion when it admitted the challenged testimony.
III
Missouri law, which governs this diversity-based products liability action, see
Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1063 (8th Cir. 2008), permits a jury to infer
a product defect and causation based on circumstantial evidence under a res ipsa
loquitur-type theory. Aetna Cas. and Sur. Co. v. Gen. Elec. Co., 758 F.2d 319, 322
(8th Cir. 1985) (citing Williams v. Deere & Co., 598 S.W.2d 609, 612 (Mo. Ct. App.
1980)). To prove a product defect by circumstantial evidence, a plaintiff must offer
evidence that:
(1) tends to eliminate other possible causes of the injury or property
damage, (2) demonstrates that the product was in the same basic
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condition at the time of the occurrence as when it left the hands of the
defendants, and (3) the injury or damage is of a type that normally
would not have occurred in the absence of a defect in the product.
Hickerson, 470 F.3d at 1258 (citing Fain v. GTE Sylvania, Inc., 652 S.W.2d 163, 165
(Mo. Ct. App. 1983)). Whirlpool contends the inability of the Russells' experts to
eliminate possible alternative causes of the fire precludes the Russells from proving
the first of these three elements. Because the Russells' experts did not consider or
could not eliminate other electrically-powered devices inside the Russells' home as
causes of the fire, the Russells cannot show the evidence tends to eliminate possible
causes other than the refrigerator.
Whirlpool made this argument in its motion for judgment as a matter of law.
We review a district court's denial of a motion for judgment as a matter of law de
novo. Battle v. United Parcel Service, Inc., 438 F.3d 856, 861 (8th Cir. 2006).
Judgment as a matter of law is appropriate if there is "no legally sufficient basis" for
a reasonable jury to find for the non-moving party. Fed. R. Civ. P. 50(a)(1). The
court draws all reasonable inferences in favor of the non-moving party when making
this determination. Webner v. Titan Distrib., Inc., 267 F.3d 828, 833 (8th Cir. 2001).
Where conflicting inferences may be drawn from the evidence, "it is the role of the
jury, not the court, to determine which inference shall be drawn." Hunt v. Neb. Pub.
Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). It is a "universally adopted
standard that judges must be extremely guarded in granting judgments as a matter of
law after a jury verdict." Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir. 1997) (en
banc).
The elements a plaintiff must prove to infer a product defect from
circumstantial evidence are intended to ensure the jury's verdict is free from
speculation. The elements "amount to an assessment of the strength of the
circumstantial evidence," Hickerson, 470 F.3d at 1259, and we have enforced these

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limitations where the circumstantial evidence is not strong enough to free the jury's
verdict from the realm of conjecture. See Ruminer v. Gen. Motors Corp., 483 F.3d
561, 565 (8th Cir. 2007) (holding circumstantial evidence did not allow the jury to
determine whether failure of a car's seatbelt system was caused by product defect,
product misuse, or some other condition arising after the vehicle left the
manufacturer's control); Martin v. E-Z Mart Stores, Inc., 464 F.3d 827, 830-31 (8th
Cir. 2006) (holding evidence was insufficient to allow the jury to infer a defect in a
cigarette lighter). At the same time, however, we recognize "[a]n inference need not
be justified beyond all doubt and is not precluded by a mere possibility that the
contrary may be true." Fain, 652 S.W.2d at 165 (citing Scheele v. Am. Bakeries Co.,
427 S.W.2d 361, 365 (Mo. 1968)). The question, then, is whether the circumstantial
evidence, viewed in the light most favorable to the Russells, is strong enough to allow
the jury to infer, without resort to speculation, that the refrigerator contained a defect
at the time it left Whirlpool's control and that caused the fire.
We believe it is. The refrigerator was found at the bottom of the debris and
was burned more significantly than any other appliance, suggesting it experienced the
hottest and fastest burn. The side of the stove and microwave adjacent to the
refrigerator was burned more substantially than the other side of those appliances,
suggesting the fire spread to those appliances from the refrigerator. The metal in the
compressor became very thin, a sign of extreme heat. In fact, the heat was so extreme
that it burned completely through the steel in the compressor panel, but did not burn
through the same panel nearer to the top of the refrigerator. Given the compressor's
location in the interior of the refrigerator, it would have been protected from isolated
heat exposure had the fire started outside the refrigerator. The power was off in the
compressor compartment at the time of the fire, which is consistent with an electrical
malfunction within the compressor compartment. The power to the other appliances,
however, was on at the time of the fire, suggesting the fire did not begin in these
appliances or the breaker panel. Finally, the Russells heard a strange noise emanating
from the refrigerator in the days before the fire occurred. Although this evidence may
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not compel the jury to find for the Russells, it is "strong enough to support reasonable
inferences necessary to [the Russells'] case free from speculation." Hickerson, 470
F.3d at 1258. That is all Missouri law requires. To the extent Whirlpool argues the
Russells cannot eliminate other possible causes of the fire, we believe it created a fact
issue the jury resolved at trial, rather than an argument the Russells cannot prove an
essential element of their claim as a matter of Missouri law. Id. at 1260. The district
court did not err when it denied Whirlpool's motion for judgment as a matter of law.
IV
Finally, Whirlpool argues Martin violated the court's in limine order
prohibiting evidence of other Whirlpool refrigerator fires when the following
exchange occurred:
Q. What's the significance to you, if anything, that the power is off to
the compressor when the fire gets there but it's on when the fire gets to
the range? What's that tell you?
A. It tells me that the fire originates within the compressor compartment
and progresses outward from that location. And obviously it's not a big
secret here. The theory is in the past there have been problems with the
relay contactors.
J.A. 590. According to Whirlpool, this comment primed the jury to think about the
compressor as the cause of the fire, a disputed issue in the case. Thus, Whirlpool
argues the district court's failure to grant a mistrial following Martin's remark
constitutes prejudicial error.
We review a district court's decision not to grant a mistrial for abuse of
discretion. Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001). "In
order for a violation of an order granting an in limine motion to serve as a basis for
a new trial, the order must be specific in its prohibition and the violation must be
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clear." Id. A party is entitled to a new trial only where the violation was prejudicial.
Id. An error is prejudicial if it "in all probability produced some effect on the jury's
verdict and is harmful to the substantial rights of the party assigning it." Id.
Any violation of the court's in limine order was neither clear nor prejudicial.
First, Martin's statement is vague. Martin did not expressly mention other fires.
Moreover, after Whirlpool objected and the district court dismissed the jury, Martin
clarified his comment addressed circumstances from this case that supported his
theory. The district court found this explanation satisfactory. Therefore, it was not
altogether clear Martin was referring to other incidents. Second, the comment did not
appear to be intentional, and there were no further references to other similar
incidents during the trial. See id. at 752-53 (concluding appellant was not prejudiced
by a single, unintentional remark). Third, after consulting with the parties and using
the exact language Whirlpool suggested, the district court gave a curative instruction:
Ladies and gentlemen, the objection to the last statement was sustained
by me, and I'm instructing you that you're to disregard Mr. Martin's last
statement just before we took the break in this case.
J.A. 597. We have previously held a district court did not abuse its discretion by
refusing to deny a mistrial for violation of an in limine order when, among other
things, the court gives a prompt and clear curative instruction. Black v. Shultz, 530
F.3d 702, 707 (8th Cir. 2008); Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346,
353 (8th Cir. 2002). Finally, Whirlpool offers no compelling explanation of how it
was prejudiced or denied a fair trial by Martin's comment, and our review of the
record reveals no unfairness. Therefore, we conclude the district court did not abuse
its discretion when it denied Whirlpool's motion for a mistrial.

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V
For the foregoing reasons, we affirm the judgment of the district court.
______________________________

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