Saurini v. Adams County School ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LAURA SAURINI,
Plaintiff - Appellant, No. 04-1477
v. D. Colorado
A D A MS C OU N TY SC HO O L (D.C. No. 02-Z-953 (BNB))
DISTRICT NO. 12, also known as
Adams Twelve Five Star Schools;
R ICK K ELLO G G ; JA CO B M URPHY;
LIN D A CU RR Y; M A RK H IN SON,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, SE YM OU R, and HA RTZ, Circuit Judges.
Laura Saurini appeals from an adverse judgment following a jury trial on
her claim that her former employer, Adams County School District No. 12 (the
School District), and M ark Hinson, Assistant Superintendent of Human
Resources, retaliated against her for exercising her First Amendment right to free
speech. She argues that the district court committed reversible error in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
instructing the jury, barring her from presenting a claim at trial, and making
evidentiary rulings. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
Laura Saurini was hired in 1998 as a nontenured school counselor at Huron
M iddle School (Huron), part of the School District. W hile employed at Huron,
she had numerous clashes w ith other school personnel, some of which related to
the reporting of what she considered child abuse. In addition, she claims that she
objected to school policy restricting her authority to report such abuse.
On April 24, 2000, near the end of M s. Saurini’s second year at the school,
Huron Principal Linda Curry and Assistant Principal Jacob M urphy recommended
to M r. H inson that M s. Saurini’s contract not be renewed for the next school year.
Principal Curry stated that the counseling department at Huron was dysfunctional
and needed to be changed, and M s. Saurini was simply not qualified for the job.
The next day M s. Saurini received a certified letter from M r. Hinson stating
that she was being recommended for nonrenewal. The letter explained that the
School District believed it could find “a candidate for employment who possesses
stronger skills and/or qualifications.” Aplt. App. at 2408.
M s. Saurini attended a School Board meeting on M ay 16, 2000, to
challenge M r. Hinson’s recommendation. Given the opportunity to address the
Board, she began reading a prepared letter about “serious child safety issues at
Huron,” but when she began to discuss the relation of these issues to her being
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nonrenewed, the Board instructed her not to discuss her employment issues in
public session. Aplt. Br. at 28. Soon thereafter, at the Board’s executive session,
she was allowed to read her letter in full. She also provided each Board member
with a copy of the letter along with letters of support from parents and teachers.
After she left, the Board voted to adopt in full M r. Hinson’s list of employees to
be nonrenewed, thereby terminating M s. Saurini’s employment.
M s. Saurini filed suit on M ay 15, 2002, in the United States D istrict Court
for the District of Colorado against the School District, M r. Hinson, and several
others, alleging claims for retaliation for exercising her First A mendment rights,
violations of the Equal Protection and Due Process Clauses of the Fourteenth
Amendment, wrongful discharge in violation of public policy, violation of
Colorado’s Child Protection Act of 1987, breach of contract, and intentional
interference with her contract with the School District. In pretrial rulings the
district court disposed of all the claims except her First Amendment retaliation
claims under 42 U.S.C. § 1983 against the School District and M r. Hinson, which
were tried from October 4 to 14, 2004. The jury returned a verdict for the
defendants. M s. Saurini timely appealed. The only issues on appeal relate to the
tried claims. The facts relevant to each issue will be summarized in the
discussion of the issue.
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II. D ISC USSIO N
A. E lements of R etaliation Claim
M s. Saurini contends that the School District retaliated against her because
of her reports of child abuse and her complaints about a team-approval policy that
allegedly restricted her authority to report abuse. W hether the defendants
violated M s. Saurini’s rights under the First Amendment is determined under the
four-prong test articulated by the Supreme Court in Pickering v. Board of
Education of Township High School District, 391 U.S. 563 (1968). As we stated
in Orr v. City of Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005):
The first three steps of the Pickering test are (1) whether the speech
touches on a matter of public concern, (2) whether the employee’s
interest in commenting on matters of public concern outweighs the
interest of the state in promoting the efficiency of the public service
it performs through its employees, and (3) whether the protected
speech was a substantial or motivating factor behind the adverse
employment decision. If these three factors are met, (4) the burden
shifts to the employer to establish that it would have reached the
same decision in the absence of the protected conduct.
(internal quotation marks omitted). The first two prongs are to be decided by the
court as a matter of law ; the last two prongs are questions of fact for the jury to
decide. See McFall v. Bednar, 407 F.3d 1081, 1088 (10th Cir. 2005). (The recent
Supreme Court decision in Garcetti v. Ceballos, 129 S. Ct. 1951 (2006), added a
gloss on Pickering for employees speaking in their official capacities. But we
need not consider what, if any, effect that decision would have, because it could
only help the defendants.)
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B. Instructions
1. Standard of Review
M s. Saurini raises four challenges to the jury instructions. None of the
challenges was properly preserved below. “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 of the objection.” Fed. R. Civ. P. 51(c)(1).
Specifically with respect to a claim of improper failure to give an instruction, “a
party must both proffer an instruction and make a timely objection to the refusal
to give a requested instruction.” Abuan v. Level 3 Commc’ns, Inc., 353 F.3d
1158, 1172 (10th Cir. 2003). “A party does not satisfy the requirements for
Rule 51 by merely submitting to the court a proposed instruction that differs from
the instruction ultimately given to the jury.” Id. (internal quotation marks
omitted).
In this case M s. Saurini did submit two proposed instructions that she
claims should have been accepted by the district court, but she did not object on
the record to the court’s refusal to give the instructions. Nor did she raise
adequate objections on the record below with respect to her other two challenges
to the instructions. She contends that her objections are not on the record because
“the district court dismissed the court reporter during the three-hour jury
instruction conference[].” Aplt. Br. at 51. But the district court gave counsel the
opportunity to state their objections for the record after the instruction
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conference. M s. Saurini’s counsel simply failed to take advantage of the
opportunity.
Because M s. Saurini did not preserve below her claims of error, on appeal
she must establish plain error: that is, “(1) an error, (2) that is plain, which
means clear or obvious under current law, and (3) that affects substantial rights.”
Abuan, 353 F.3d at 1173 (internal quotation marks omitted). Even then, “[w]e
may only reverse in an exceptional circumstance, where the error w as patently
erroneous and prejudicial and where fundamental injustice w ould otherwise
occur.” Id.; see Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1408
(10th Cir. 1991) (“[T]he plain error exception [is] limited to errors which
seriously affect the fairness, integrity or public reputation of judicial proceedings.
The ‘miscarriage of justice’ must be patently plainly erroneous and prejudicial.”
(internal quotation marks, ellipsis, citations, and footnote omitted)). W e now
address in turn each challenge to the instructions.
2. Delegation by Board
M s. Saurini’s first challenge to the jury instructions is that the district court
should have given the jury her proposed instruction (which she proffered twice)
that the School District is liable under § 1983 “if the Board delegated its decision-
making authority to a retaliatory administrator.” Aplt. Br. at 50. Her proposed
instruction read:
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A claim of retaliation in violation of the First Amendment may
be shown if (a) the School Board retains its decision-making
authority but exercises it with deliberate indifference to Plaintiff’s
constitutional rights, or (b) the School Board delegates its decision-
making authority to an Administrator who retaliates against Plaintiff
in violation of her constitutional rights.
Pursuant to Colorado law, delegation of the School Board’s
decision-making authority regarding nonrenew al of probationary
employees is not allowed. However, the School Board must be in
compliance w ith this law .
The School Board is not in compliance of Colorado law if
through a custom or usage it creates or gives decision-making
authority regarding nonrenewal of school employees to an
Administrator and then rubber-stamps the Administrator’s decisions
concerning the nonrenewal list.
Aplt. App. at 2598 (emphasis added).
M s. Saurini’s challenge concerns alternative “(b)” in the first paragraph.
She alleges that the Board had a custom of delegating to M r. Hinson the
responsibility of choosing which personnel should be nonrenewed and then voting
to approve his choices without serious debate. She argues that this custom
effectively delegated the authority to renew or not renew to M r. Hinson and
“resulted in ‘assembly-line rubber-stamping’ of Hinson’s recommendations,
thereby creating a direct causal link between the School Board and the alleged
constitutional deprivation.” A plt. Br. at 53. The jury, she concludes, “should
have been instructed in this causal link and had the opportunity to determine the
facts of this issue.” Aplt. Br. at 53-54.
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M s. Saurini’s argument is contrary to circuit precedent. In Jantz v. M uci,
976 F.2d 623 (10th Cir. 1992), we held that the school board did not delegate
authority to a subordinate, and therefore had no liability under § 1983 for the
subordinate’s alleged discrimination, when state law invested the school board
with “final authority” to review hiring decisions made by a subordinate officer,
unless the subordinate’s decision was based on a policy statement expressly
approved by the board. Id. at 631 (internal quotation marks omitted). The
plaintiff in Jantz made a “rubber-stamping” argument similar to M s. Saurini’s;
although there was no express policy that guided the subordinate’s hiring
decisions, the plaintiff argued that the board delegated its hiring authority to the
subordinate by “custom or usage” because its “ultimate hiring decisions rarely
conflict[ed] with the decision of the [subordinate].” Id. (internal quotation marks
and brackets omitted). W e disagreed, holding that “[s]imply going along with
discretionary decisions made by one’s subordinates” is not a delegation of
policymaking authority, as long as the school board retained the authority to
review hiring decisions. Id. (internal quotation marks omitted).
The defendants in this case argue that Jantz controls because Colorado law ,
like the Kansas law applied in Jantz, prevents boards of education from
delegating hiring and firing decisions. See Big Sandy Sch. Dist. No. 100-J v.
Carroll, 433 P.2d 325, 328 (Colo. 1967), overruled on other grounds by
Normandy Estates M etro. Recreation Dist. v. Normandy Estates, Ltd., 553 P.2d
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386 (Colo. 1976) (en banc). M s. Saurini does not respond to this argument
(indeed, the second paragraph of her proposed instruction states that such a
delegation of authority is not allowed under Colorado law), and we agree that
Jantz controls. There was no error in failing to instruct the jury that the School
District could be liable on the theory that it delegated its authority to M r. H inson.
M oreover, because the jury rendered a verdict in favor of M r. Hinson, the School
District could not be liable under a delegation theory in any event.
3. Deliberate Indifference
For her second challenge to the instructions, M s. Saurini argues that the
district court should have given the following instruction to the jury regarding
“deliberate indifference”:
“Deliberate indifference” to the rights of others is the
conscious or reckless disregard of the consequences of one's acts or
omissions.
To demonstrate that the School District acted with deliberate
indifference to Plaintiff's First Amendment rights, she must show
that (a) the School District was aware of Plaintiff's belief that her
non-renewal was in retaliation for her protected speech, and (b) the
School District consciously or deliberately chose to disregard the risk
of harm to Plaintiff's constitutional rights. The School D istrict's
conscious or deliberate choice to disregard the risk of harm to
Plaintiff's constitutional rights may be shown by the School D istrict's
failure to properly investigate Plaintiff's claim of retaliation for
exercising her First Amendment right to free speech.
The law dictates that School Boards are chargeable with the
knowledge that employees may not be dismissed in retaliation for
lawful exercise of First Amendment rights.
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Aplt. App. at 2600 (emphasis added). The instruction that the district court gave
was identical to what was requested except for the omission of the last sentence
of the second paragraph. That omission was proper. The requirement of
deliberate indifference is not necessarily satisfied by a “failure to properly
investigate,” which encompasses negligence. See Despain v. Uphoff, 264 F.3d
965, 972 (10th Cir. 2001) (deliberate indifference “entails something more than
mere negligence” (internal quotation marks omitted)); Green v. Branson, 108 F.3d
1296, 1302 (10th Cir. 1997) (“Liability of a supervisor under § 1983 must be
predicated on the supervisor’s deliberate indifference, rather than mere
negligence.”). The district court did not plainly err in rejecting M s. Saurini’s
proffered instruction.
4. G ood Faith
Third, M s. Saurini challenges the district court’s Instruction No. 15. The
instruction stated:
In this case, Plaintiff contends her contract was not renewed
because of child abuse reports she made that were protected by the
First Amendment. The child abuse reports made by M s. Saurini do
constitute statements protected by the First Amendment to the United
States Constitution if they were made in good faith and were based
on reasonable suspicion.
Aplt. App. at 2579. M s. Saurini argues that abuse reporting is, “as a matter of
law, speech protected by the First Amendment” and that the jury could have
“erroneously determined that the speech w as not protected by the First
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Amendment.” Aplt. Br. at 41. As we understand her briefs, she is not
challenging the relevance of good faith and reasonable suspicion to the First
Amendment inquiry, but only that those issues are for the judge to decide.
W e recognize that M s. Saurini objected on the record to this instruction.
But we still must apply plain-error review because she did not clearly raise on the
record below the issue she now raises on appeal. Her only objection on the
record to this instruction, which had been tendered by the defendants as
No. 33.DM , was as follow s:
[M S. SAURINI’S COUNSEL]: W e would like to object to
33.DM and specifically the last
sentence to that and also to 3.D
for the record.
THE COURT: Can I just inquire, I don’t have
it in front of me. W as 33.D
what the refused— did you give
me a refused on that or is that
just an objection?
[M S. SA URINI’S COUNSEL]: W e are objecting to that
[instruction] in the sense that
it’s in good faith and based on
reasonable suspicion part of
that.
THE COURT: Okay.
[M S. SA URINI'S COUNSEL]: In the sense that it involves the
Pickering balancing test.
THE COURT: Anything else?
[M S. SAURINI'S COUNSEL]: That’s it.
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Aplt. App. at 2259. This objection is incoherent and hence inadequate. Perhaps
after being present at the instruction conference the district court and both parties
understood precisely what M s. Saurini was objecting to, but we must decide this
case on the record, and we cannot conclude that this obscure objection would alert
anyone to the alleged problem in the instruction to be given. Fed. R. Civ. P.
51(c)(1) requires an objecting party to “stat[e] distinctly the matter objected to
and the grounds of the objection”; the objection failed this standard.
W e will assume that M s. Saurini is correct that the issues of good faith and
reasonable suspicion should have been decided by the judge, although the
defendants make an interesting argument that these are “subsidiary fact issues”
that should be decided by a jury. Aplee. Br. at 33. But under plain-error review
she must also establish that the error w as “prejudicial” and that reversal is
required to avoid a “fundamental injustice.” Abuan, 353 F.3d at 1173. Thus,
M s. Saurini must show that the district court would likely have resolved the
issues of good faith and reasonable suspicion differently than the jury. Nothing
in the record suggests that would have happened. Because the claim of prejudice
is speculative, we reject it.
5. Team-Approval
M s. Saurini’s final challenge to the instructions is that the district court
failed to instruct the jury that her objections to the school’s alleged “team
approval” policy were “categorically protected” speech. Aplt. Br. at 41. As w ith
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her other challenges, she did not preserve the issue below, so we review for plain
error.
W e deny relief on this ground because M s. Saurini has failed to show that
the absence of the desired instructions created a “fundamental injustice.” Abuan,
353 F.3d at 1173. W hether her opposition to the reporting policy was protected
speech was simply not an issue at trial. Although the district court’s instructions
make several references to protected speech, they make no reference to the
Pickering factors or even ask the jurors to determine whether her “speech
touch[ed] on a matter of public concern,” Orr, 417 F.3d at 1154 (internal
quotation marks omitted), or to w eigh M s. Saurini’s free-speech interest against
the School District’s needs as an employer. Rather, the instructions implicitly
suggest that all her speech at issue was protected speech, with the exception we
have already addressed of child-abuse reports made in bad faith or without
reasonable suspicion. For example, Instruction No. 2 described the defendants’
defenses as follow s:
Defendants deny that Plaintiff’s supervisor, Linda Curry,
retaliated against Plaintiff by recommending her nonrenewal based
on her filing of child abuse reports. Defendant Adams County
School District No. 12 also denies that the Board of Education
nonrenewed Plaintiff’s employment based on any retaliatory motive
related to Plaintiff’s filing of child abuse reports or acted with
deliberate indifference to Plaintiff’s First A mendment rights w hen it
nonrenewed Plaintiff’s employment.
Defendant M ark Hinson denies that he retaliated against
Plaintiff for her filing of child abuse reports or knew of or
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acquiesced in any retaliation against Plaintiff based on her filing of
child abuse reports. Defendants state that Plaintiff was nonrenewed
because M s. Curry wanted a better counselor and because the school
district had to place a non-probationary counselor. Defendants
affirmatively state that Plaintiff would have been nonrenewed
regardless of any child abuse reports made by her or statements made
by her about child abuse reporting procedures.
Aplt. App. at 2566. There is no suggestion that her complaints about reporting
procedures were not protected speech. M oreover, the only statements in the
defendants’ closing argument implying that speech was not protected were
references to a child-abuse report that the defendants claimed to have been
deliberately false and to M s. Saurini’s actions in reporting that one student had
kissed another without consent.
In short, there is no reason to believe that the jury rendered a verdict
against M s. Saurini on the ground that her objections to reporting procedures
were not protected by the First Amendment.
C. Posttermination R etaliation
M s. Saurini argues that the district court erred by excluding her testimony
regarding “post non-renewal retaliation” by the defendants. The defendants
objected to such testimony because it was irrelevant to what they asserted to be
the only claim at issue in the case— whether her contract was nonrenewed in
retaliation for her protected speech. The district court sustained the defendants’
objection, stating that it didn’t “want surprises,” Aplt. App. at 1434, and ruling
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that the posttermination claim “really hasn’t been raised . . . sufficiently,” id. at
1470.
W e review for an abuse of discretion a district court’s decision whether to
permit an amendment to the pleadings under Fed. R. Civ. P. 15(b). See Green
Country Food M kt., Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1280 (10th Cir.
2004). Plaintiffs are not permitted “to wait until the last minute to ascertain and
refine the theories on which they intend to build their case.” Id. at 1279. “This
practice, if tolerated, would . . . unfairly surprise defendants, requiring the court
to grant further time for discovery or continuances.” Id. (internal quotation marks
omitted).
At trial M s. Saurini argued that the defendants were on notice of a
posttermination retaliation claim because of (1) the claims in the second amended
complaint and the pretrial order; (2) an answer in M s. Saurini’s deposition, and
(3) an affidavit by M s. Saurini that was attached to her response to the
defendants’ motion for summary judgment. In our view , the notice was minimal,
if not nonexistent.
M s. Saurini’s second amended complaint contains no mention of retaliation
that occurred after the School District nonrenewed her contract. Paragraph 25 of
the general allegations of the second amended complaint states only that the
School District “did not renew Plaintiff’s employment contract in retaliation for
her disclosure of harassment, discrimination, and illegal practices regarding
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apparent child abuse occurring at Huron M iddle School.” A plt. App. at 50. In
her First Amendment claim, Paragraph 49 states, “Plaintiff’s exercise of her
protected rights was a substantial factor in H inson and [the School District’s]
decision to reprimand Plaintiff and terminate her employment.” Id. at 53.
The pretrial order speaks only generally of retaliation, reciting no specifics.
It states:
All the Defendants retaliated against M s. Saurini for exercising
her freedom of speech rights regarding the reporting of abuse of a
child(s), in violation of 42 U.S.C. § 1983 and the First Amendment.
Further, all the Defendants violated M s. Saurini’s procedural and
substantive rights guaranteed under the Due Process Clause of the
Fourteenth Amendment.
Id. at 212. It listed 17 witnesses for M s. Saruini; the summaries of their expected
testimony make no mention of posttermination retaliation.
Somewhat more helpful to M s. Saurini is one of her replies during her
deposition:
Q: Now, after you were nonrenewed, you applied for some other
positions in the school district, correct?
A: Correct.
Q: And you’re alleging that you were denied those positions out
of retaliation?
A: Yes, I believe so.
Id. at 540. W hen defense counsel pursued this answer, however, she provided no
evidence of First Amendment retaliation, certainly none attributable to the School
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District or M r. Hinson. She mentioned that she was not offered a job at W estlake
M iddle School because of negative comments made about her personality, but she
could not identify who made such comments. She also claimed that Lynn Albi, a
School District employee, had made false statements about her in a letter, but she
could only speculate that M r. Albi would have done so because she had “talk[ed]
to the union” and “go[ne] to the Board of Education.” Id. at 541. Her deposition
testimony would give the defendants’ attorney no reason to think a
posttermination retaliation claim would be raised against them.
As for M s. Saurini’s affidavit, it stated merely, “Linda Curry’s poor
references have prevented me from getting several jobs available in Adams
County School District No. 12 and in a middle school in Brighton.” Id. at 209.
Like her deposition responses, this statement does not allege that the “poor
references” were meant as retaliation for protected speech, nor does it implicate
either of the defendants w ho went to trial.
In addition to M s. Saurini’s failure to show that she provided notice of a
posttermination claim, she also failed to show the district court that she had any
relevant evidence to produce at trial. W hen she sought to be allowed to testify
about posttermination retaliation, the following exchange occurred:
THE COU RT: W hat are you going to show?
Tell me.
[M S. SAURINI’S COUNSEL]: Judge, this is a First
Amendment retaliation case.
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THE COURT: I know what it is. Tell me
what you are going to show.
[M S. SAURINI’S COUNSEL]: W hat I am going to show is
that she applied for jobs. She
applied— she has been applying
for three or four years and still
can’t get a position back in her
chosen career. Something is
going on. We are not really
sure what.
Id. at 1432-33 (emphasis added). The district court did not abuse its discretion in
ruling that a claim of posttermination retaliation had not been raised before trial
and that the issue could not be addressed at trial.
D. Evidentiary Issues
M s. Saurini challenges three evidentiary rulings of the district court. Our
review of such rulings is for an abuse of discretion. See Seeley v. Chase, 443
F.3d 1290, 1293 (10th Cir. 2006).
1. Audiotape
M s. Saurini argues that the district court erred by allowing the defendants
to play an audiotape of the M ay 16, 2000, School Board meeting after denying her
request to admit the tape. She had sought to introduce the 15-minute tape during
her direct testimony as evidence of her dismissive treatment by the Board. The
defendants objected to the admission of the tape as irrelevant and repetitive.
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After listening to the tape, the district court sustained the objection, ruling that it
was “repetitious and cumulative.” Aplt. App. at 1267.
M s. Saurini then testified that the School Board had treated her rudely,
saying, “I wish you could hear the sarcasm in their voices,” id. at 1418, and “I
cannot express probably enough how rude they were,” id. at 1419. She also stated
that the Board had rudely cut off both her and her supporters while speaking.
After this testimony, the defendants changed their position and offered to play the
tape to refute her testimony that the Board had treated her rudely during the
M ay 16 meeting. M s. Saurini objected, saying that if the tape “was cumulative in
our case, it’s certainly . . . cumulative in [the] defense case.” Id. at 1563. The
district court overruled the objection, saying that “in all fairness it needs to be
heard by the jury.” Id. at 1564.
The district court’s ruling was sensible. W e see no abuse of discretion.
2. Legal M emoranda
M s. Saurini argues that she should have been allowed to introduce copies of
legal memoranda and newsletters prepared by the School District relating to a
school counselor’s duty to report child abuse. The documents, she says, were
relevant “to show the basis for her reasonable suspicion and decision to report
child abuse.” Aplt. Br. at 60. Her theory is that the documents are relevant
because her fellow counselors relied on them when they advised her to report
suspected abuse.
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The defendants objected to their admission at trial, arguing that the
documents were irrelevant because (1) they were “just a collection of various
documents that have been distributed by the school district over the course of
many years,” Aplt. App. at 1076, (2) they predated M s. Saurini’s employment and
there was no showing that she had ever seen them, and (3) there was “no fact at
issue in the case regarding what [a fellow counselor] knew or where he got the
information from. This doesn’t tend to show one w ay or the other w hether Laura
Saurini was retaliated against for reporting child abuse,” id. at 1081. The district
court excluded the evidence. W e see no error in this ruling. Any relevance was
minimal.
3. Leading Questions
M s. Saurini argues that on 12 separate occasions the district court erred by
permitting defense counsel to ask witnesses leading questions. Fed. R. Evid. 611
discourages the use of leading questions on direct examination, but it does not
forbid them. Permitting them is within the trial court’s discretion. See United
States v. Olivo, 69 F.3d 1057, 1065 (10th Cir. 1995) (“Rule 611(c) governs
leading questions; it vests broad discretion in the trial judge.”); see also 4 Jack B.
W einstein & M argaret A. Berger, Weinstein’s Federal Evidence § 611.06[2][b]
(2d ed. 2006) (“Leading questions on direct examination will more quickly get the
witness over preliminary matters. Often, leading questions are asked on
preliminary and collateral matters to expedite the trial.”). Having reviewed each
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instance in the record identified by M s. Saurini, we are satisfied that the district
court did not abuse its discretion in allow ing the questions.
4. Cum ulative Error
Finally, M s. Saurini urges that we consider the cumulative effect of the
district court’s erroneous evidentiary rulings. “A cumulative-error analysis
merely aggregates all the errors that individually have been found to be harmless,
and therefore not reversible, and it analyzes whether their cumulative effect on
the outcome of the trial is such that collectively they can no longer be determined
to be harmless.” M cCue v. Kansas Dep’t of Hum an Res., 165 F.3d 784, 791 (10th
Cir. 1999). Having found no error in any of those rulings, we must conclude that
there was no cumulative error.
III. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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