United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1285
___________________________
Jeannie K. May
lllllllllllllllllllll Plaintiff - Appellee
v.
Nationstar Mortgage, LLC
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 16-1307
___________________________
Jeannie K. May
lllllllllllllllllllll Plaintiff - Appellant
v.
Nationstar Mortgage, LLC
lllllllllllllllllllll Defendant - Appellee
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: December 15, 2016
Filed: March 29, 2017
____________
Before WOLLMAN and SMITH,1 Circuit Judges, and WRIGHT,2 District Judge.
____________
WRIGHT, District Judge.
Appellee/Cross-Appellant Jeannie K. May commenced this action to recover
damages under state and federal law arising from the debt-collection practices of
Appellant/Cross-Appellee Nationstar Mortgage, Inc. A jury found in favor of May
on her invasion-of-privacy claim and her claim that Nationstar negligently violated
the Fair Credit Reporting Act. The jury awarded May compensatory damages on both
claims and punitive damages on her invasion-of-privacy claim.
On appeal, Nationstar argues that insufficient evidence supports the jury’s
award of punitive damages because May failed to present clear and convincing
evidence that Nationstar acted with an evil motive or with a reckless indifference to
May’s rights. In the alternative, Nationstar contends that the punitive damages award
is unconstitutionally excessive in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. May cross-appeals,
challenging the district court’s3 exclusion of testimony at trial and its jury instruction
addressing the Real Estate Settlement Practices Act. We affirm.
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
2
The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, sitting by designation.
3
The Honorable Thomas C. Mummert, III, United States Magistrate Judge for
the Eastern District of Missouri, to whom the case was referred for final disposition
by consent of the parties pursuant to 28 U.S.C. § 636(c).
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May purchased a home in Overland, Missouri, secured by a $100,000 mortgage
in 2007. Shortly thereafter, she stopped making mortgage payments and filed for
Chapter 13 bankruptcy. Through the bankruptcy process, May entered a five-year
payment plan to pay down her mortgage and arrears. Although Nationstar acquired
the servicing rights to May’s mortgage in 2010, Nationstar did not communicate
directly with May because of the pending bankruptcy. When May’s debt was
discharged from bankruptcy in January 2013, she requested monthly mortgage
statements from Nationstar.
May received her first mortgage statement in March 2013. The statement
erroneously included thousands of dollars in “lender-paid” expenses. Also, rather
than applying a $51 credit to May’s account, Nationstar improperly debited $5,162
from the account. Nationstar’s errors caused its records to incorrectly reflect a
delinquency of $8,534.94 on May’s mortgage. Nationstar initiated collection efforts.
May received her first collection call from Nationstar in March 2013, the same
month that she began receiving mortgage statements. May immediately contacted
Nationstar, but Nationstar’s employees—acting on erroneous records—informed May
that she was delinquent on her mortgage. During the next several months, May
regularly received calls from Nationstar at her home, in public and, most often, at
work.
In April 2013, prompted by a call from May, Nationstar submitted May’s file
to its research department. Nationstar determined on May 15, 2013, that it had made
an accounting error in May’s account and directed its cash department to credit the
account from Nationstar’s internal bankruptcy fund. Nationstar’s cash department
rejected the requested credit, however, because May had been discharged from
bankruptcy and her account no longer reflected a bankruptcy code. Nationstar’s
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research department never followed up on this discrepancy, and Nationstar never
credited May’s account.
Instead, Nationstar resumed its collection efforts and presented May with two
options—vacate her home or accept a loan modification. The proposed loan
modification would have added the erroneously calculated arrears to May’s principal
balance. May refused, and Nationstar initiated the loan modification anyway. May
repeatedly attempted to correct the accounting errors by calling and sending written
complaints to Nationstar. Although May continued tendering monthly mortgage
payments, Nationstar began rejecting the payments in September 2013 because its
internal policy required it to accept only full payments. Nationstar deemed May’s
payments insufficient because of its erroneous determination that her account was in
arrears. Nationstar initiated its foreclosure process. May retained counsel.
In his December 19, 2013 letter, May’s attorney attempted to explain May’s
circumstances to Nationstar. In response, Nationstar’s correspondence verified the
debt and enclosed the note, deed of trust and a payment history. May’s attorney
requested a substantive response. Nationstar in turn notified May of the February 24,
2014 foreclosure sale. Thereafter, Nationstar conducted frequent inspections of
May’s residence, allegedly in preparation for the foreclosure sale.
May filed this lawsuit together with a motion for a temporary restraining order
to stop the foreclosure sale. As relevant here, May alleged that Nationstar’s conduct
(1) violated her right to privacy under Missouri law, (2) constituted negligent
reporting under the Fair Credit Reporting Act, (3) willfully violated the Fair Credit
Reporting Act, (4) violated the Fair Debt Collection Practices Act, and (5) violated
the Real Estate Settlement Practices Act. Nationstar removed the action to the
Eastern District of Missouri and cancelled the foreclosure sale. Nationstar’s
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subsequent investigative and remedial process took several months. On April 28,
2014, Nationstar credited the erroneously deducted $5,162 to May’s account, but
Nationstar did not remove the improper “lender-paid” expenses or correct the
rejection of May’s monthly payments. Nationstar’s revised records continued to
erroneously indicate that May’s account was delinquent. The account balance on
May’s mortgage was not corrected until October 2014.
At trial, May recounted her experience with Nationstar. This included May’s
repeated efforts to remedy her account with Nationstar and stop Nationstar’s
collection practices. May’s credit score was also adversely affected because
Nationstar reported a delinquent debt that she did not owe. May and her physician
testified that May experienced symptoms of severe stress attributable to Nationstar’s
conduct, including abdominal pain, vomiting, depression and anxiety. May testified
that Nationstar ignored her repeated requests to stop calling her, particularly at work,
and that Nationstar’s employees spoke to her in a mocking and sarcastic manner on
several occasions. May argued that Nationstar’s corporate culture unduly focused on
collection efforts, which prevented Nationstar from correcting her account sooner.
Nationstar admitted that it made many mistakes when servicing May’s account,
but disputed May’s allegations that these mistakes were intentional or the product of
an institutionalized corporate practice. To counter May’s suggestion that Nationstar
was motivated by profit when it sought to foreclose on May’s home, Nationstar
presented evidence that it loses money when it forecloses on a property.
The jury awarded May $50,000 in compensatory damages and $400,000 in
punitive damages for Nationstar’s invasion of her privacy, in violation of Missouri
law, and $50,000 in compensatory damages for Nationstar’s negligent reporting, in
violation of the Fair Credit Reporting Act. The district court subsequently denied
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Nationstar’s motion to alter or amend the judgment. Nationstar’s appeal and May’s
cross-appeal follow.
I.
Nationstar advances two arguments, in the alternative, that challenge the award
of punitive damages. First, Nationstar argues that insufficient evidence supports the
jury’s award of punitive damages because May failed to present clear and convincing
evidence that Nationstar acted with an evil motive or a reckless indifference to May’s
rights. Alternatively, Nationstar challenges the constitutionality of the punitive
damages award, arguing that because it is excessive, the award violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. We
address each argument in turn.
A.
Nationstar asserts that insufficient evidence supports the jury’s award of
$400,000 in punitive damages because the evidence fails to establish that Nationstar
acted with ill-will or malice. Rather, according to Nationstar, the evidence supports
the conclusion that Nationstar’s errors were made in good faith. May counters that
Nationstar was notified of its mistakes and its conduct thereafter demonstrated a
“reckless disregard” to May’s rights. By concluding that Nationstar acted with a
reckless indifference to her rights, May contends, the jury found Nationstar’s
persistent collection efforts—despite May’s payment history and debt protests—were
inconsistent with Nationstar’s claimed good faith.
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When exercising diversity jurisdiction, as we do here, we apply the forum
state’s substantive law to any state-law claims. See Bazzi v. Tyco Healthcare Grp.,
LP, 652 F.3d 943, 946 (8th Cir. 2011). Under Missouri law, punitive damages may
be awarded for invasion of privacy. Engman v. Sw. Bell Tel. Co., 591 S.W.2d 78, 81-
82 (Mo. Ct. App. 1979). The purpose of punitive damages is not to compensate the
plaintiff, but rather to punish and deter the defendant. Rodriguez v. Suzuki Motor
Corp., 936 S.W.2d 104, 110 (Mo. 1996). As such, punitive damages are an
extraordinary and harsh remedy that should be awarded sparingly. Id. Whether the
evidence is sufficient to support an award of punitive damages is a question of law,
which we review de novo. Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788, 799
(8th Cir. 2013) (citing Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 869
(Mo. Ct. App. 2009)).
Before punitive damages can be awarded, a plaintiff must present clear and
convincing evidence of a defendant’s culpable mental state. Burnett v. Griffith, 769
S.W.2d 780, 789 (Mo. 1989). This standard requires proof that the defendant acted
with either an evil motive or a reckless indifference to the plaintiff’s rights. Id. Such
proof can be established by direct or circumstantial evidence. Trickey, 705 F.3d at
800; Drury v. Mo. Youth Soccer Ass’n, 259 S.W.3d 558, 573 (Mo. Ct. App. 2008).
A jury may infer that a defendant has the requisite culpable motive when evidence of
the defendant’s reckless indifference to the interests and rights of the plaintiff is
presented. Drury, 259 S.W.3d at 573. Such evidence supporting punitive damages
need not be—and often is not—separate from the evidence supporting a substantive
claim. Trickey, 705 F.3d at 800. It is the jury’s role “to evaluate [the] evidence and
decide what inferences should be drawn from it.” JCB, Inc. v. Union Planters Bank,
NA, 539 F.3d 862, 873 (8th Cir. 2008). We will overturn the jury’s verdict only when
“there is a complete absence of probative facts” such that “no proof beyond
speculation [supports] the verdict.” Wedow v. City of Kansas City, 442 F.3d 661, 669
(8th Cir. 2006).
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In JCB, Inc., we rejected an argument very similar to the one Nationstar
advances here. When a bank and a private creditor disputed which party had a
superior interest in a debtor’s property, the bank eventually provided notice of its
intent to sell the property despite multiple objections from the creditor. JCB, Inc.,
539 F.3d at 867-68. After the bank seized and sold the property, the creditor
successfully sued for trespass and conversion and was awarded punitive damages.
Id. at 869. The bank challenged the punitive damages award claiming, as Nationstar
does here, that insufficient evidence supported the award because the bank believed
in good faith that its actions complied with the law. Id. at 872-73. Such an argument
did not prevail in JCB, Inc., nor does it here. “Simply presenting . . . evidence of
good faith to the jury does not immunize a defendant from punitive damages.” Id. at
873. Determining the weight and credibility of the evidence, and any inference to be
drawn from it, is the province of the jury. Id. This record presents no basis to reject
the jury’s determination.
Nationstar argues that the evidence demonstrates that its actions were nothing
more than a series of unintentional errors. In doing so, Nationstar attempts to
distinguish JCB, Inc., based on its responsiveness to May. Nationstar maintains that
“the defendant in JCB defiantly ignored the plaintiff’s complaint and actually went
through with a full foreclosure and sale,” whereas here “Nationstar listened to May,
tried to fix the problem with her account at multiple junctures, and never actually
foreclosed on her home.”4 Evidence that Nationstar acted with a reckless indifference
4
Nationstar also relies on decisions from other jurisdictions that address the
award of punitive damages. These cases are inapposite. For example, Nationstar
cites inapplicable Minnesota law and circumstances when punitive damages were
awarded on a negligence claim, which requires a different standard of proof from the
reckless-indifference standard employed here. See, e.g., Litchfield v. May Dep’t
Stores Co., 845 S.W.2d 596, 600 (Mo. Ct. App. 1992) (articulating standard in
negligence cases involving punitive damages in which mere error is distinguished
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to her rights is legally sufficient to establish the requisite mental state to support the
punitive damages awarded by the jury, May counters. We agree.
The record reflects that May contacted Nationstar repeatedly to demand that
it resolve the issues with her account. But rather than suspending its efforts,
Nationstar aggressively pursued collection, posted May’s home for foreclosure and
conducted inspections of her residence. May also testified that Nationstar employees,
at times, spoke to her in a mocking and sarcastic manner and that she suffered
physical ailments from the stress caused by Nationstar’s conduct. In evaluating this
evidence, it was the jury’s responsibility to determine the credibility and weight of
the evidence presented. In doing so, the jury was free to reject Nationstar’s
characterization of its conduct and determine that these facts and circumstances
warranted punitive damages. The verdict reflects the jury’s decision to credit May’s
arguments that her repeated protests and requests for assistance should have halted
the collection process long before the foreclosure proceedings commenced. See JCB,
Inc., 539 F.3d at 873 (explaining that it is the jury’s role “to evaluate [the] evidence
and decide what inferences should be drawn from it”).
A review of the trial record establishes that there is ample evidence that
supports the jury’s determination. The jury’s verdict reflects its assessment of the
evidence, including its rejection of Nationstar’s good-faith theory and acceptance of
May’s arguments that Nationstar acted with a reckless indifference to her rights. On
this record, sufficient evidence supports the jury’s award of punitive damages.
Nationstar’s renewed assertions that it acted in good faith provides no legal basis to
vacate the jury’s verdict.
from negligent conduct evincing “complete indifference or conscious disregard” to
the rights of others).
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B.
Nationstar next argues that the $400,000 punitive damages award is
unconstitutionally excessive because it violates the Due Process Clause of the
Fourteenth Amendment. The constitutionality of punitive damages is subject to de
novo review. Trickey, 705 F.3d at 802.5 Although juries have considerable flexibility
in determining the amount of punitive damages, the Due Process Clause serves as a
governor and prohibits “grossly excessive civil punishment.” Id. (quoting Ondrisek
v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012)). Punitive damages are grossly
excessive if they “shock the conscience” of the court or “demonstrate passion or
prejudice on the part of the trier of fact.” Ondrisek, 698 F.3d at 1028 (quoting
Stogsdill v. Healthmark Partners, L.L.C., 377 F.3d 827, 832 (8th Cir. 2004)).
We consider three factors when determining whether a punitive damages award
shocks the conscience or demonstrates passion or prejudice. They are “(1) the degree
of reprehensibility of the defendant’s conduct; (2) the disparity between actual or
potential harm suffered and the punitive damages award (often stated as a ratio
between the amount of the compensatory damages award and the punitive damages
award); and (3) the difference between the punitive damages award and the civil
penalties authorized in comparable cases.” Id. (quoting Boerner v. Brown &
Williamson Tobacco Co., 394 F.3d 594, 602 (8th Cir. 2005)); see also BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996). These factors serve as the
“guideposts” to ensure that a defendant receives proper notice of possible penalties.
Ondrisek, 698 F.3d at 1028. We address each factor in turn.
5
Missouri has adopted the federal standard for reviewing the constitutionality
of a punitive damages award. See Krysa v. Payne, 176 S.W.3d 150, 156-57 (adopting
federal standard, but noting deference to trial court’s findings of fact).
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1.
We first evaluate whether the reprehensible nature of Nationstar’s conduct
warrants punitive damages. Reprehensibility is the most important guidepost. Gore,
517 U.S. at 575. When assessing reprehensibility, the Supreme Court instructs us to
consider whether:
the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health
or safety of others; the target of the conduct had financial vulnerability;
the conduct involved repeated actions or was an isolated incident; and
the harm was the result of intentional malice, trickery, or deceit, or mere
accident.
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). The presence
of just one indicium of reprehensibility is sufficient to render conduct reprehensible
and support an award of punitive damages. See Trickey, 705 F.3d at 803.
The record here supports a conclusion that Nationstar’s conduct was
reprehensible. May suffered physical harm. The severe stress attributable to
Nationstar’s conduct caused May to experience abdominal pain, vomiting, depression
and anxiety. See Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 790 (8th Cir.
2009) (concluding that physical symptoms attributable to severe stress qualify as
physical rather than economic harm). Also, as addressed in Part II.A.1., the jury
specifically determined that Nationstar acted with a reckless indifference to May’s
substantive rights. See Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024,
1027 (8th Cir. 2000) (explaining that the jury’s substantive conclusion is relevant to
a determination of reprehensibility). Nationstar concedes that May was financially
vulnerable. Nor was Nationstar’s conduct an isolated incident. Nationstar repeatedly
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invaded May’s privacy over the course of two years through actions including making
collection calls to May at her workplace, conducting home inspections and sending
foreclosure letters. See, e.g., Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820,
839 (observing that a pattern of misconduct constitutes repeated actions). The
reprehensible nature of Nationstar’s conduct supports the jury’s award of punitive
damages. See Trickey, 705 F.3d at 803.
2.
As to the second factor, Nationstar contends that the 8-to-1 ratio between
May’s $400,000 punitive award and $50,000 compensatory award is too great. At
most, according to Nationstar, a 1-to-1 ratio is appropriate. We disagree.
We do not apply “a simple mathematical formula” to determine the
constitutionality of a punitive damages award. Gore, 517 U.S. at 582. But few
awards exceeding a single-digit ratio of punitive to compensatory damages will
satisfy due process. State Farm, 538 U.S. at 425. A 4-to-1 ratio likely will survive
any due process challenge “given the historic use of double, treble, and quadruple
damages.” Wallace v. DTG Operations, Inc., 563 F.3d 357, 363 (8th Cir. 2009). Yet
the 4-to-1 ratio established in Wallace is not dispositive because an award of punitive
damages turns on the specific facts of each case. State Farm, 538 U.S. at 425; see
also United States v. Big D Enters., Inc., 184 F.3d 924, 933 (8th Cir. 1999) (rejecting
argument that punitive damages must be limited to 4-to-1 ratio as “miscontru[ing] the
applicable law”). A higher ratio may be justified when the injury is hard to detect or
the monetary damages are difficult to quantify. Gore, 517 U.S. at 582. Indeed, we
have explained that a 4.8-to-1 ratio is the current constitutional boundary for multi-
million dollar compensatory awards, see Ondrisek, 698 F.3d at 1030 (citing Eden
Elec., Ltd. v. Amana Co., 370 F.3d 824, 827 (8th Cir. 2004)), and have affirmed
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higher ratios for smaller compensatory damage awards, see Trickey, 705 F.3d at 804
(affirming a 5-to-1 ratio); Morse v. S. Union Co., 174 F.3d 917, 925-26 (8th Cir.
1999) (affirming a 5.7-to-1 ratio).
Our decision in Morse provides a meaningful reference to analyze May’s award
here. After the district court granted remittitur motions to reduce the original awards,
the plaintiff in Morse received $70,000 in compensatory damages and $400,000 in
punitive damages arising from the defendant’s violation of the Age Discrimination
in Employment Act (ADEA). 174 F.3d at 921. When affirming other punitive
damages awards, we have cited with approval the district court’s rationale for the
punitive damages award in Morse:
[The plaintiff’s] evidence, which the jury credited, shows that [the
employer’s] top management [implemented policies that violated the
ADEA] to achieve company objectives. . . . The award of $400,000 is
less than one one-thousandth of [the employer’s] approximately
$500,000,000 net worth and the ratio of punitive to compensatory
damages . . . is less than 6:1, a ratio that in these circumstances does not
set off any alarm bells.
Trickey, 705 F.3d at 804 (citing Morse, 174 F.3d at 925).
When comparing May’s award to the award at issue in Morse, May received
$50,000 in compensatory damages rather than $70,000, resulting in an 8-to-1 ratio for
May. But here, as in Morse and Trickey, the jury credited May’s evidence that
Nationstar acted with a reckless indifference to her substantive rights. The $400,000
punitive award also accounts for thirty-three thousandths of one percent of
Nationstar’s approximate $1.2 billion net worth. See id. (considering net worth of
defendant as relevant to the analysis). Under the facts and circumstances presented,
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the 8-to-1 ratio of May’s award “does not set off any alarm bells,” and it is not
unconstitutionally excessive. See id.
3.
The final factor for consideration is the “disparity between the punitive
damages award and the civil penalties authorized or imposed in comparable cases.”
State Farm, 538 U.S. at 428 (internal quotation marks omitted). The parties concede
that there are no comparable civil penalties in this case because there is no civil
penalty for invasion of privacy under Missouri law and the civil penalties for May’s
federal claims are nominal. Although May argues that her federal claims could have
included statutory penalties for the costs of prosecution, she concedes that there is no
way to discern which conduct the jury considered to be an invasion of her privacy.
In light of the similarities between this case and others in which we have upheld an
award of punitive damages, however, the absence of comparable civil penalties does
not render the punitive damages award unconstitutionally excessive. See Trickey, 705
F.3d at 804; Morse, 174 F.3d at 925-26.
In sum, the jury’s $400,000 punitive damages award does not violate the Due
Process Clause of the Fourteenth Amendment.
II.
We next address May’s cross-appeal, in which she challenges the district
court’s decision to exclude the testimony of Jennifer Prostredny, who allegedly
experienced conduct by Nationstar that is similar to Nationstar’s treatment of May.
May argues that the district court erred because the admission of Prostredny’s
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testimony would have rebutted Nationstar’s claims of good faith and established that
Nationstar’s conduct was reckless and reprehensible. May also contends that the
district court erroneously instructed the jury on her claim under the Real Estate
Settlement Practices Act. We address each argument.
A.
Before trial, Nationstar moved in limine to exclude “any reference to the facts
or circumstances regarding or involving any borrower besides [May], including
introducing any evidence regarding the facts and circumstances involving Jennifer
Prostredny.”6 Nationstar argued that Prostredny’s testimony was inadmissible
because it was irrelevant, prejudicial and improper propensity evidence. The district
court granted Nationstar’s motion, but reserved its decision as to admissibility for the
purpose of rebuttal. The district court’s ruling, however, precluded Nationstar from
employing a defense theory that May’s experience was isolated.
A Nationstar Vice President testified on cross-examination that May “was an
exception” and “not [in] the majority . . . not what we want to happen to other
customers.” The district court immediately admonished Nationstar and instructed the
witness not to address “this sort of an issue.” Because the witness was under cross-
6
Nationstar contends that May failed to preserve this issue for review because
Prostredny’s testimony is not included in the appellate record and May failed to
proffer the testimony at trial. But a motion in limine preserves an evidentiary ruling
for appeal absent an offer of proof at trial. See Lawrey v. Good Samaritan Hosp., 751
F.3d 947, 952 (8th Cir. 2014). The fact that Prostredny’s testimony is not included
in the appellate record also is not dispositive. Nationstar relies on Rule 103(a), Fed.
R. Evid., but that Rule provides that a claimed error is preserved if the substance of
the excluded testimony is “apparent from the context.” Neither party disputes that
Prostredny’s testimony relates to her experience with Nationstar that was allegedly
similar to Nationstar’s treatment of May.
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examination, however, the district court rejected May’s argument that Nationstar
“opened the door” as to whether May’s experience with Nationstar was an isolated
one. As a remedy, the district court permitted May’s counsel to ask the Nationstar
Vice President whether Nationstar had treated other customers similarly when
servicing their mortgages.7 The Nationstar Vice President admitted that
“Nationstar . . . made errors with other borrowers.”
The district court has broad discretion when deciding what evidence to admit
at trial. Cummings v. Malone, 995 F.2d 817, 823 (8th Cir. 1993). We review a
district court’s decision to exclude evidence for a clear and prejudicial abuse of
discretion. Id. An abuse of discretion occurs when the district court erroneously
excludes admissible evidence and “there is no reasonable assurance that the jury
would have reached the same conclusion had the evidence been admitted.” King v.
Ahrens, 16 F.3d 265, 268 (8th Cir. 1994) (quoting Adams v. Fuqua Indus., Inc., 820
F.2d 271, 273 (8th Cir. 1987)). We may affirm evidentiary rulings on any ground
supported by the record. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 895
(8th Cir. 2010).
We have affirmed the exclusion of evidence under circumstances nearly
identical to those here. In Bair v. Callahan, we held that the district court did not
abuse its discretion by excluding evidence of an orthopedic surgeon’s mistakes in
treating other patients on the ground that the evidence constituted improper,
prejudicial propensity evidence. 664 F.3d 1225, 1229-30 (8th Cir. 2012). In
addition, we concluded that admission of such evidence would result in “mini trials”
that would needlessly confuse and distract the jury by drawing its attention away from
the germane issues. Id. at 1230. We affirmed the district court’s decision to permit
7
We do not endorse the district court’s statement to the parties regarding its
expectation that specific remedial testimony would be rendered.
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more limited questioning that preserved an argument for presentation to the jury
while preventing litigation of each prior act. Id.
Here, the district court excluded the Prostredny testimony to foreclose a
needless “mini trial” about another borrower’s experience for the improper purpose
of establishing Nationstar’s alleged propensity for mistreating other borrowers. See
id. This ruling did not improperly impede May’s presentation of evidence to
undermine Nationstar’s good-faith defense, which the jury apparently credited when
it awarded her punitive damages. The decision to exclude Prostredny’s testimony was
well within the district court’s sound discretion.
B.
May also challenges the district court’s jury instruction on her Real Estate
Settlement Procedures Act (RESPA) claim. May argues that the instruction was
erroneous because it was founded on a statutory provision that had not become
effective, it incorrectly defined an exception to Nationstar’s duty and it misstated
provisions of the relevant regulation. Nationstar counters that May waived this issue
by failing to object to the instruction at trial. Alternatively, Nationstar defends the
instruction as a common-sense statement of applicable law and adds that any potential
error had no effect on the jury’s verdict.
“A party who objects to an instruction or the failure to give an instruction must
do so on the record, stating distinctly the matter objected to and the grounds for the
objection.” Fed. R. Civ. P. 51(c)(1). When followed by litigants, Rule 51 affords the
district court the opportunity to correct a defective instruction and helps “to prevent
litigants from ensuring a new trial in the event of an adverse verdict by covertly
relying on the error.” Mo. Pac. R.R. Co. v. Star City Gravel Co., 592 F.2d 455, 459
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(8th Cir. 1979). Rule 51 requires a specific objection to a jury instruction before the
jury retires, otherwise “a litigant waives the right on appeal to object to a jury
instruction on those grounds.” Dupre v. Fru-Con Eng’g Inc., 112 F.3d 329, 333 (8th
Cir. 1997). In the absence of a distinct objection, we will reverse only for plain error.
See Fed. R. Civ. P. 51(d)(2); Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 64 F.3d
1202, 1211 (8th Cir. 1995). May did not object to the district court’s RESPA
instruction in a substantive manner. Accordingly, plain-error review is appropriate.
Plain-error review is narrow and “confined to the exceptional case in which error has
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047,
1054 (8th Cir. 2006) (internal quotation marks omitted).
As a party asserting a RESPA violation, May was required to demonstrate that
(1) she sent Nationstar a qualified written request, (2) Nationstar failed to respond to
that request, and (3) she suffered damages. See Hintz v. JPMorgan Chase Bank, N.A.,
686 F.3d 505, 510-11 (8th Cir. 2012). Jury Instruction 19A, the target of May’s
appeal, stated: “Nationstar was not required to respond to any qualified written
request if it reasonably determined that the request asserted the same error as an error
previously asserted by May.” May argues that Jury Instruction 19A improperly relied
on a regulation that was not in effect at the time of Nationstar’s misconduct. The
effective date of that regulation—12 C.F.R. § 1024.35(g)(1)(I)—was January 10,
2014. According to May, many of her written requests to Nationstar preceded that
effective date. Nationstar responds that Section 1024.35(g)(1)(I) is a codification of
a preexisting “common-sense exception” to RESPA that applied to all of May’s
written submissions.
The parties’ arguments demonstrate the importance of making a substantive
objection when an instruction is offered. When such an objection is raised for the
first time on appeal, we are placed in an untenable position.
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To correct the error, we would have to notice sua sponte that the district
court did not act sua sponte to provide a jury instruction that [a party]
should have provided, and then we would have to remedy the problem
in the face of [the complaining party’s] relative indifference to it. We
have an adversarial system of justice, not an inquisitorial one, and to
[correct the error despite the inaction] would be to blur the line between
the two systems. We decline to do so.
Swipies v. Kofka, 419 F.3d 709, 717 (8th Cir. 2005) (emphasis added).
Assuming without deciding that Jury Instruction 19A is a misstatement of the
law, such an error would not entitle May to a reversal under plain-error review.8 For
example, in Christopherson v. Deere & Co., although the district court erroneously
instructed the jury on a plaintiff’s assumption of the risk, we affirmed because the
exacting standard of plain error was not met. 941 F.2d 692, 694 (8th Cir. 1991)
(concluding that “the essential fairness of the trial was not undercut by the omission
of the word ‘unreasonably’ . . . and plaintiffs, who have been awarded substantial
compensatory damages, have not suffered a miscarriage of justice”). The same is true
here. Given the multiple theories of defense to the RESPA claim that Nationstar
advanced, we can only speculate about the reason for the jury’s verdict. Moreover,
May recovered $500,000 in damages, a circumstance that undermines any argument
8
Case law supports each party’s position as to Jury Instruction 19A. In
Campbell v. Nationstar Mortgage, the United States Court of Appeals for the Sixth
Circuit concluded that an instruction similar to Jury Instruction 19A stated an
exception that had yet to take effect. 611 F. App’x 288, 297 (6th Cir. 2015).
Notably, as the defendant in that case, Nationstar made an argument similar to the
argument May now advances. But other courts have adopted Nationstar’s position
in this case, that Jury Instruction 19A stated a common-law exception to RESPA for
duplicate requests. See, e.g., Hawkins-El v. First Am. Funding, LLC, 891 F. Supp. 2d
402, 409 (E.D.N.Y. 2012). This split in authority underscores the importance of
substantive objections at trial for the district court’s consideration.
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that the alleged RESPA error resulted in a miscarriage of justice. On this record, May
fails to establish that Jury Instruction 19A was plainly erroneous.
III.
Based on the foregoing analysis, we affirm on all grounds.
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