DOTY, District Judge.
Appellants William H. "Butch" Gossett, Jr. and Donna Sue Gossett appeal from an order of the district court
In 1969, Appellee Weyerhaeuser Company ("Weyerhaeuser") began purchasing large tracts of land in a mountain basin in Yell County, Arkansas. Weyerhaeuser bought the land to harvest timber. In 1976, the Gossetts purchased 120 acres of land in the valley located directly below the basin. The Gossetts use the land to raise livestock.
The Gossetts claim that these operations were negligently undertaken and that Weyerhaeuser's land management practices dramatically increased the run-off of rainfall from the mountain basin onto the Gossett's land. The Gossetts further contend that the increased run-off caused or substantially contributed to the severe flooding which damaged their property in 1982 and 1984.
The Gossetts filed suit against Weyerhaeuser on November 27, 1985. After a three-day trial in June of 1987, the jury returned a general verdict in favor of Weyerhaeuser. Shortly thereafter, the Gossetts moved for a new trial claiming that the court had improperly excluded rebuttal testimony and erroneously overruled the Gossetts' objections to certain remarks made by opposing counsel during closing argument. The trial court denied the motion and the Gossetts appealed.
A. Rebuttal Witness
Following Weyerhaeuser's case in chief, the Gossetts offered rebuttal testimony of an expert witness who was not identified by the Gossetts prior to trial. Weyerhaeuser opposed the offer, arguing that all experts were to have been identified before trial
"Normally, parties are expected to present all of their evidence in their case in chief. Allowance of a party to present additional evidence on rebuttal depends upon the circumstances of the case and rests within the discretion of the individual most able to weigh the competing circumstances, the trial judge." Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978) (quoting Skogen v. Dow Chem. Co., 375 F.2d 692, 705 (8th Cir.1967)). Accordingly, we may reverse a trial court's determination of the admissibility of rebuttal testimony only where there has been a clear abuse of discretion. LaRo Corp. v. Big D Oil Co., 824 F.2d 689, 690 (8th Cir.1987); Hale v. Firestone Tire and Rubber Co., 820 F.2d 928, 936 (8th Cir.1987); Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978); Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 174 n. 6 (8th Cir.1977); Hanrahan v. St. Vincent Hospital, 516 F.2d 300, 302 (8th Cir.1975).
The Gossetts tried their case on the theory that Weyerhaeuser negligently carried out its forestry practices and that such practices increased the run-off of rainfall from the harvested site thereby causing or contributing to the flood damage to the Gossetts' property. At trial, counsel for the Gossetts stated that the rebuttal witness would testify that Weyerhaeuser's forestry activities caused or contributed to the flooding, and that contrary to the representations of Weyerhaeuser's expert, "clear-cutting of the forest above the Gossett farm can be accomplished without the effects that have occurred; that there has been erosion ... and that there is runover of the rips in the soil." Based upon counsel's
B. Improper Argument
The Gossetts also contend that they are entitled to a new trial based upon allegedly improper statements made by Weyerhaeuser's counsel during closing argument. In his final argument, counsel for Weyerhaeuser remarked that the company which had previously owned Weyerhaeuser's timberlands did not "grow trees", and that "we" — ostensibly meaning Americans — "were in danger of running out of trees." Counsel for the Gossetts objected to the remarks, arguing that the comments were extremely prejudicial
Although the district court did not strike the comments from the record or caution the jury immediately after the remarks were made, the court did issue the following admonishment in connection with its general instructions to the jury:
The Gossetts argue that the court's instruction, given as part of the general charge to the jury, was inadequate to correct the alleged prejudice resulting to the Gossetts. The Gossetts contend that the court committed reversible error in failing to strike the challenged remarks and in failing to caution the jury immediately after the remarks were made or immediately following counsel's closing argument.
Even assuming counsel's remarks departed in some measure from the evidence in the record, we cannot conclude that the Gossett's case was significantly prejudiced
The order of the district court is AFFIRMED.
Based on the trial court's ruling, and on the colloquy between the court and counsel, it is clear that the court concluded that the proffered rebuttal testimony presented no new evidence, but was offered merely to supplement the Gossetts' case in chief. In his August 18, 1987 Order, however, the trial judge additionally noted that "plaintiffs could have presented, in their case in chief, any evidence they had which might have contradicted what they knew Dr. Miller would present for the defendant." To the extent that the Court's Order implies that the Gossetts should have anticipated and negated in their case in chief the testimony of Dr. Miller, the Court's Order misstates the law. A plaintiff is not obligated to anticipate and negate in its own case in chief any facts or theories that may be raised on defense. See Everett v. S.H. Parks and Associates, Inc., 697 F.2d 250, 252 (8th Cir.1983). See also Rodriguez v. Olin Corp., 780 F.2d 491, 496 (5th Cir.1986); Martin v. Weaver, 666 F.2d 1013, 1020 (6th Cir.1981) cert. denied, 456 U.S. 962, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982); Weiss v. Chrysler Motors Corp., 515 F.2d 449, 459 (2nd Cir.1975).