Gust v. Jones

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 12 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
EMERY DUANE GUST and DENNIE
G. DIGHERA,
Plaintiffs - Appellees,
v. No. 97-3059
JEFFREY S. JONES and WILLIS
SHAW FROZEN FOOD EXPRESS,
INC.,
Defendants - Appellants.
_______________________________
EMERY DUANE GUST,
Plaintiff - Appellee,
and
DENNIE G. DIGHERA,
Plaintiff - Appellant,
v. No. 97-3067
JEFFREY S. JONES and WILLIS
SHAW FROZEN FOOD EXPRESS,
INC.,
Defendants - Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 95-1129-JTM)
__________________________
James R. Jarrow (Robert M. Carroll with him on the briefs) of Baker, Sterchi,
Cowden & Rice, L.L.C., Overland, Park, Kansas, for Defendants-Appellants
Jeffrey S. Jones and Willis Shaw Frozen Food Express, Inc.
Craig Kennedy of Johnson, Kennedy, Dahl & Willis, Wichita, Kansas, for
Defendant-Appellee/Cross-Appellant Dennie G. Dighera.
Robert S. Jones (Robert A. Martin with him on the brief) of Norton, Wasserman,
Jones & Kelly, Salina, Kansas, for Plaintiff-Appellee Emery Duane Gust.
___________________________
Before PORFILIO, McKAY, and TACHA, Circuit Judges.
_________________________
McKAY, Circuit Judge.
_________________________
On December 3, 1993, two vehicles collided near the intersection of Kansas
Highway 75 and Interstate 35 in Coffey County, Kansas. The accident involved a
tractor-trailer driven by Defendant Jeffrey Jones within the scope of his
employment by Defendant Willis Shaw Frozen Foods Express, Inc., and a pickup
truck driven by Plaintiff/Cross-Defendant Dennie Dighera. Plaintiff Emery Gust
was a passenger in the truck operated by Mr. Dighera. The accident occurred
-2-
when Mr. Jones initiated a left turn from northbound Highway 75 onto the ramp
leading to southbound Interstate 35. Mr. Dighera was proceeding south on
Highway 75 and, when the tractor-trailer turned, it blocked Mr. Dighera’s path.
Mr. Dighera crashed into the rear tires of the tractor portion of the Willis Shaw
rig.
Mr. Dighera and Mr. Gust suffered physical injuries as a result of the
accident. Mr. Gust’s injuries included a fracture of his right femur and bone
fractures in his left foot and ankle. Mr. Dighera and Mr. Gust brought a diversity
suit against Willis Shaw and Mr. Jones in the United States District Court for the
District of Kansas. Both plaintiffs claimed damages for their medical expenses,
and Mr. Gust sought an additional award for the loss of past and future wages and
for future medical expenses. Although they admitted partial blame for the
accident, Defendants asserted that Mr. Dighera also was partially to blame for the
accident. Defendants also contested the nature and extent of the damages
claimed by Mr. Gust. In addition, Mr. Gust filed a cross-claim against Mr.
Dighera for damages. At the close of Mr. Gust’s case, Mr. Dighera moved the
court to direct a verdict that he was not liable for Mr. Gust’s damages. The court
denied this motion. At the close of all of the evidence, Mr. Dighera renewed his
motion for a directed verdict, and the district court again denied the motion. The
jury awarded Mr. Gust $868,251.53 and Mr. Dighera $40,800.09, and it found
-3-
Willis Shaw and Mr. Jones sixty-five percent responsible for the accident and Mr.
Dighera thirty-five percent responsible. 1
After judgment was entered, Mr. Dighera, Willis Shaw, and Mr. Jones
moved for a new trial. The court denied these motions. Willis Shaw and Mr.
Jones now ask this court to reverse the jury’s verdict and remand the case for a
new trial, alleging various errors. Additionally, Mr. Dighera complains that his
right to cross-examine witnesses was erroneously limited and he appeals the
district court’s refusal to grant him a directed verdict at the end of Mr. Gust’s
case.
We address the allegations of error in turn, cognizant of the principle that
motions for a new trial are committed to the sound discretion of the trial court.
See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984);
Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996). We review the district
court’s decision to deny a new trial motion for an abuse of discretion. “We will
reverse the denial of a motion for a new trial only if the trial court made a clear
error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Weese , 98 F.3d at 549. “Parties seeking reversal of a jury
verdict or of a denial of a motion for new trial must establish the alleged trial
Pursuant to Mr. Dighera’s motion and Kansas statutory law, the court
1
decreased the award to Mr. Gust to $768,251.53.
-4-
errors were both prejudicial and clearly erroneous.” Shultz v. Rice, 809 F.2d 643,
655 (10th Cir. 1986); see Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp.,
571 F.2d 1144, 1148 (10th Cir.), cert. denied, 439 U.S. 862 (1978). We review de
novo decisions of the district court which are based on an interpretation of
substantive state law. See Salve Regina College v. Russell, 499 U.S. 225, 231
(1991); Wolfgang v. Mid-America Watersports, Inc., 111 F.3d 1515, 1528 (10th
Cir. 1997).
I.
Defendants first claim that the court erroneously excluded the testimony of
their proposed medical expert, Dr. Anthony Pollack. The district court excluded
the testimony of Dr. Pollack because Defendants failed to comply with the court’s
orders and Federal Rule of Civil Procedure 26. We review the district court’s
evidentiary rulings, including its decision to admit or deny expert testimony, for
an abuse of discretion. See Robinson v. Missouri Pac. R.R. Co., 16 F.3d 1083,
1086, 1090 (10th Cir. 1994); Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th
Cir. 1992).
Rule 26(a)(2)(B) requires that “a written report [be] prepared and signed by
the witness. The report shall contain a complete statement of all opinions to be
expressed and the basis and reasons therefore.” Fed. R. Civ. P. 26(a)(2)(B)
-5-
(emphasis added). Pursuant to this rule, the district court ordered the parties to
disclose any opinions to be offered by previously designated expert witnesses by
October 25, 1996, and it specified that the opinions expressed in the expert
witnesses’ testimony at trial would be limited by those prior disclosures. At trial,
the court refused to allow Dr. Pollock to offer opinion testimony on deviation
from the relevant standard of care because his report did not express the opinion
that the actions of the physician who initially treated Mr. Gust, Dr. Sudheer
Mitra, 2 rose to the level of malpractice.
The standard of ordinary care does not mandate that a physician must
always correctly diagnose a patient’s ailments or that she must always identify the
most appropriate medical response; medical malpractice under Kansas law means
that a doctor did not exercise the ordinary skill and diligence of a competent
physician in a comparable medical community. See Chandler v. Neosho Mem.
Hosp., 574 P.2d 136, 138 (Kan. 1977); Collins v. Meeker, 424 P.2d 488, 493
(Kan. 1967). Dr. Pollock’s report did not indicate that he was aware of the
standard of care in Burlington, Kansas, where Dr. Mitra practices, nor did it state
that the course of treatment Dr. Mitra followed was not recognized and approved
in Burlington or a similar community in 1993. Dr. Pollock reported that, in his
2
Mr. Gust was initially treated at the Coffey County Hospital by Dr. Mitra,
but he was subsequently under the care of Dr. Gary Harbin at a hospital near
Salina, Kansas. Both doctors testified at trial.
-6-
opinion, Mr. Gust’s injuries ought to have been treated by an orthopaedic
surgeon; that most orthopaedic surgeons probably would have treated Mr. Gust’s
femur with an intramedullary rod; and that Mr. Gust’s recovery would probably
have been more comfortable with the intramedullary rod. The closest Dr. Pollock
came to stating that Dr. Mitra breached the standard of care was when he stated
that the fixation method used by Dr. Mitra was “inadequate because there were
insufficient screws placed above and below the fracture sites. Normally . . . , at
least three screws should be used. This is not obviously a hard-and-fast rule, but
it is certainly an excellent guideline and in this case was probably necessary.” R.,
Vol. I., Doc. 17 at 137. None of Dr. Pollock’s statements suggested that Dr.
Mitra’s conduct did not rise to the level of ordinary skill and diligence of a
competent physician in the Burlington medical community. Where a physician
has two or more possible courses of treatment, he is not negligent if he selects
one of the methods recognized in the profession at the time and place of
treatment, even if subsequent events show that his choice was not the best. See
Natanson v. Kline, 350 P.2d 1093, 1098-99, clarified on denial of reh’g, 354 P.2d
670 (Kan. 1960).
A fair reading of Dr. Pollock’s report shows that he may have treated
Mr. Gust differently than Dr. Mitra did, but it does not express the opinion that
Dr. Mitra’s actions rose to the level of malpractice. Thus, we hold that the
-7-
district court did not abuse its discretion in refusing to allow Dr. Pollock to testify
that Dr. Mitra’s acts breached the appropriate standard of care; such testimony
would have constituted presentation of an opinion not offered in Dr. Pollack’s
report. We further hold that the court’s subsequent decision to exclude
Dr. Pollock’s testimony altogether was not an abuse of discretion. Because
Dr. Pollock could not testify that Dr. Mitra’s actions amounted to a deviation
from the relevant standard of care and therefore constituted malpractice, his
testimony was irrelevant to any issues before the district court and, therefore, was
inadmissible. See Fed. R. Evid. 402.
II.
Defendants insist that, even without Dr. Pollock’s testimony, they presented
sufficient evidence to create a jury question of whether Dr. Mitra, a non-party,
caused any part of Mr. Gust’s damages. They claim that the district court erred
by not allowing them to offset their liability for Mr. Gust’s injuries by comparing
their fault to Dr. Mitra’s alleged fault. Defendants maintain that the Kansas
comparative fault scheme required the court to allow the jury to consider Dr.
Mitra as a potentially responsible party.
Whether an actor’s conduct constitutes negligence is generally a factual
question left to a jury. However, “in rare cases where the evidence is susceptible
-8-
to only one possible inference,” the trial court should not allow the jury to
consider a party’s alleged negligence. Carl v. City of Overland Park, Kan., 65
F.3d 866, 869 (10th Cir. 1995); see also Hardin v. Manitowoc-Forsythe Corp.,
691 F.2d 449, 454, 459 n.7 (10th Cir. 1982) (stating that a trial court should apply
the directed verdict standard when deciding if there is sufficient evidence of fault
to allow phantom parties to be listed on the verdict form). When reviewing
diversity actions, we examine the sufficiency of the evidence on a particular issue
by reference to the burden of proof dictated by forum state law. See Wolfgang,
111 F.3d at 1522 (applying substantive Kansas law to determine sufficiency of
evidence in context of district court’s denial of judgment as a matter of law); Oja
v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (applying same standard
in the context of directed verdict decision).
The purpose of the Kansas statutory system of comparative negligence is to
allow the comparative fault of all potential tortfeasors to be determined in a
single action. See Kan. Stat. Ann. § 60-258a; Hardin, 691 F.2d at 454; Albertson
v. Volkswagenwerk Aktiengesellschaft, 634 P.2d 1127, 1132 (Kan. 1981); Eurich
v. Alkire, 579 P.2d 1207, 1208-09 (Kan. 1978). Potential tortfeasors need not be
made parties before their fault may be compared for the purpose of assigning
fault. See Hardin, 691 F.2d at 454-55; Brown v. Keill, 580 P.2d 867, 876 (Kan.
1978). However, allegations that a nonparty’s negligence caused a plaintiff’s
-9-
harm must be supported by adequate evidence before the negligence of that
person may be argued to the jury or before the judge may instruct the jury to
compare the nonparty’s fault. See Mason v. Texaco Inc., 862 F.2d 242, 246 (10th
Cir. 1988); Wooderson v. Ortho Pharm. Corp., 681 P.2d 1038, 1060 (Kan.), cert.
denied, 469 U.S. 965 (1984); cf. Worden v. Tri-State Ins. Co., 347 F.2d 336, 340
(10th Cir. 1965) (“[I]f there is no evidence to support a claim of contributory
negligence, it would be error to submit same to the jury, or if any evidence
bearing on the claim of contributory negligence is such that men of reasonable
minds would only reach the conclusion that contributory negligence was not
present, then it would be error to submit to the jury the issue of contributory
negligence.”).
Under Kansas law, a claim of medical negligence is judged by the
professional standards of “members of [the doctor’s] profession and of his school
of medicine in the community where he practices, or similar communities.”
Chandler, 574 P.2d at 138. Kansas law presumes that a physician or surgeon has
carefully and skillfully treated a patient and does not infer negligence merely
from an adverse result. See Savina v. Sterling Drug, Inc., 795 P.2d 915, 935-36
(Kan. 1990); Webb v. Lungstrum, 575 P.2d 22, 25 (Kan. 1978). The party who
wishes to prove medical negligence bears the burden of showing that the doctor’s
acts were negligent and that the negligence caused the injury. See Savina, 795
-10-
P.2d at 935-36.
Since this is not a case where the lack of reasonable care would be apparent
to the average layman, Kansas law requires expert testimony to establish that the
accepted standard of medical care was breached before the issue of medical
negligence may be presented to a jury. See id. at 936. Contrary to Defendants’
assertions, neither of the two testifying physicians, Dr. Mitra or Dr. Harbin,
testified that Dr. Mitra breached the applicable standard of care when treating
Mr. Gust’s femur. Therefore, after a thorough review of the record, we agree
with the district court that there was not sufficient evidence to show that
Dr. Mitra negligently treated Mr. Gust’s femur.
With respect to Dr. Mitra’s treatment of Mr. Gust’s foot and ankle, there
was some evidence of the medical community’s standard of care and there was
disputed evidence that the standard was breached. However, in a case like this,
where “the existence of proximate cause is [not] apparent to the average layman
from common knowledge or experience,” expert testimony is required to prove
causation. Bacon v. Mercy Hosp., 756 P.2d 416, 420 (Kan. 1988); see also
Wozniak v. Lipoff, 750 P.2d 971, 975 (Kan. 1988) (stating that to prevail on
claim of medical malpractice, plaintiff must establish that causal connection
existed between breached duty and injuries sustained). Defendants produced no
expert testimony that Dr. Mitra’s treatment exacerbated Mr. Gust’s foot and ankle
-11-
injuries or resulted in any harm to Mr. Gust.
Without expert testimony on the essential elements of Defendants’
malpractice claims, the district court properly refused to allow the jury to consider
those claims against Dr. Mitra, and it appropriately instructed the jury that no
medical negligence existed. See Hinds v. General Motors Corp., 988 F.2d 1039,
1046 (10th Cir. 1993); Brownlow v. Aman, 740 F.2d 1476, 1490 (10th Cir. 1984)
(“Under federal law, an instruction is properly given if supported by competent
evidence; only where there is sufficient evidence to support an issue or theory is
the party offering an instruction entitled to have the instruction given.”).
Accordingly, we conclude that the court’s refusal to instruct the jury to compare
Dr. Mitra’s alleged fault to that of Mr. Dighera or Mr. Jones and Willis Shaw was
not erroneous. See Worden, 347 F.2d at 340.
III.
Defendants also assert that the district court erred by not permitting their
accident reconstruction expert to testify at trial. They contend that their expert’s
testimony was critical because it supported their allegation that Mr. Dighera was
not traveling within the posted speed limit at the time of the accident. “[T]he
district court has broad discretion in determining whether or not to admit expert
testimony, and we review a decision to admit or deny such testimony only for
-12-
abuse of discretion.” Orth, 980 F.2d at 637. The admission of expert testimony
in a federal trial is governed by Federal Rule of Evidence 702, which provides
that, “[i]f scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702. “Thus,
the touchstone of [the] admissibility [of expert testimony] is [its] helpfulness to
the trier of fact.” Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th
Cir. 1991).
The court excluded Defendants’ proposed reconstruction expert because it
found that there was “sufficient testimony and other evidence from which the jury
[could] draw its own conclusions regarding [Mr.] Dighera’s speed and whether or
not his negligence contributed to the accident,” including the testimony of several
eyewitnesses. R., Vol. I., Doc. 14 at 105-06. The court also suggested that the
probative value of the expert’s testimony would be outweighed by the danger of
confusing the jury. We previously have held that it is not an abuse of discretion
to exclude proffered expert testimony “‘when the normal life experiences of the
jury would permit it to draw its own conclusions . . . , based upon the lay
testimony of eyewitnesses.’” See Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119,
1124 (10th Cir. 1995) (citation omitted), cert. denied, 516 U.S. 1146 (1996); see
-13-
also Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994)
(holding that when expert testimony is offered to explain a question the jury is
capable of assessing for itself, the trial court may exclude the testimony because it
would not assist the trier of fact). Although we believe the helpfulness of the
accident reconstruction expert’s testimony to be a close call, the district court did
not abuse its discretion in excluding the testimony. See Corneveaux v. CUNA
Mut. Ins. Group, 76 F.3d 1498, 1505 (10th Cir. 1996).
IV.
Defendants contend that the district court erred by allowing an economist,
Dr. Gary Baker, to testify to Mr. Gust’s future economic losses because his
testimony was not sufficiently reliable. Defendants’ distortions of the evidence
do not convince this court that the district court abused its discretion in allowing
Dr. Baker’s testimony. For instance, Defendants represent that, because
Mr. Fagan, who was hired to replace Mr. Gust, was paid only $28,000 in a single
tax year, Dr. Baker’s testimony that Mr. Gust could have earned $44,000 per year
could not be accurate and reliable. Significantly, Defendants do not report that
Mr. Fagan worked on a contract basis only for about six or seven months of that
year and took numerous vacations. After a thorough review of the record on
appeal, we conclude that the court did not abuse its discretion in allowing
-14-
Dr. Baker’s testimony.
V.
Defendants also claim that the court violated Federal Rule of Evidence 701
in allowing an eyewitness, Mr. Charles Stark, to provide an opinion on Mr.
Dighera’s speed at the time of the accident. Rule 701 allows a lay witness to give
an opinion that is rationally based on his own perception if that opinion is helpful
to a clear understanding of a fact at issue. See Weese, 98 F.3d at 550; cf.
Randolph v. Collectramatic, Inc., 590 F.2d 844, 848 (10th Cir. 1979) (noting that
“persons of reasonable intelligence and ordinary experience are uniformly
permitted to express opinions as to matters such as the speed of an automobile
under their observation”). Further, the admission of lay opinion testimony is
within the sound discretion of the trial court. See Getter, 66 F.3d at 1124.
Because Mr. Stark testified that he had been following Mr. Dighera’s pickup for
some fourteen to fifteen miles prior to the accident, we hold that the district court
did not abuse its discretion in allowing him to testify that, in his opinion,
Mr. Dighera was traveling within the posted speed limit at the time of the
accident.
VI.
-15-
Defendants attempted to offer evidence of Plaintiffs’ prior felony
convictions on drug-related charges to impeach the credibility of both plaintiffs
and to show that Mr. Gust’s future earnings would be diminished by his criminal
record. Mr. Gust was convicted of smuggling contraband into a penal institution
and Mr. Dighera was convicted of methamphetamine possession and violating the
Kansas Drug Stamp Law. Defendants argue that the district court erroneously
ruled that this evidence was inadmissible. As noted above, we review the district
court’s evidentiary ruling for an abuse of discretion. See Robinson, 16 F.3d at
1086.
Defendants assert that the convictions were admissible under Federal Rules
of Evidence 609 and 404(b). Rule 609 provides two alternatives for admitting
convictions for the purpose of attacking the credibility of a witness. Addressing
them in reverse order, we believe the evidence is not admissible under Rule
609(a)(2) because these crimes do not, per se, involve dishonesty or false
statements. Defendants’ attempts to characterize smuggling drugs into a
penitentiary and failing to purchase drug tax stamps as acts indicating a
propensity for fraud does not change the fact that these are convictions which are
not, of themselves, probative of honesty. See Wilson v. Union Pac. R.R. Co., 56
F.3d 1226, 1230-31 (10th Cir. 1995) (stating that evidence of drug possession
conviction is not highly relevant to issue of veracity); United States v. Mejia-
-16-
Alarcon, 995 F.2d 982, 988-89 (10th Cir.) (discussing the narrow types of crimes
contemplated by Rule 609(a)(2)), cert. denied, 510 U.S. 927 (1993).
The alternative means by which criminal convictions may be admitted
under Rule 609(a)(1) requires, in addition to a threshold length and severity of
punishment, an application of the balancing test of Federal Rule of Evidence 403.
If the danger of unfair prejudice, confusion of the issues, or misleading the jury
substantially outweighs the evidence’s probative value on the issue of credibility,
the evidence can be excluded. See Fed. R. Evid. 403; Wilson, 56 F.3d at 1231.
The court did not abuse its discretion in determining that the drug convictions
were inadmissible under Rule 609(a)(1) because their probative value was
substantially outweighed by the danger of unfair prejudice.
Defendants also assert that Plaintiffs’ convictions were admissible under
Rule 404(b) for a purpose other than challenging Plaintiffs’ credibility, i.e., to
bolster Defendants’ contention that Mr. Gust overstated his damages. Defendants
contend that Mr. Gust’s prior conviction would limit his future employability and
that Mr. Gust’s employment in Mr. Dighera’s business, D&D Proves It, would be
at risk because of Mr. Dighera’s incarceration. Testimony which is admissible
under Rule 404(b) is still subject to exclusion pursuant to Rule 403. The district
court considered the probative value of the evidence and determined that, without
further evidentiary support as to how Mr. Dighera’s impending incarceration or
-17-
Mr. Gust’s criminal record would affect Mr. Gust’s future earnings, admission of
the drug-related convictions of either Plaintiff would unfairly prejudice the jury.
We agree that the reason for Mr. Dighera’s absence from his business was
not relevant to the question of Mr. Gust’s damages and would be unfairly
prejudicial. We see no abuse of discretion in the court’s ruling that, if
Defendants made a sufficient showing that Mr. Dighera’s absence would likely
diminish Mr. Gust’s future earnings, the court would disclose the Plaintiffs’
stipulation to Mr. Dighera’s potential absence for an extended period. We also
hold that the court’s determination that the potential prejudice of Mr. Gust’s
conviction outweighed its potential probative value was not erroneous,
particularly considering that the testimony of Mr. Gust’s projected future earnings
related to a job that he had been offered after his felony conviction. See Wilson,
56 F.3d at 1231 (noting that plaintiff’s future income claim was based on his
employment in positions not impacted by his conviction); cf. Meller v. Heil Co.,
745 F.2d 1297, 1303 (10th Cir.), cert. denied, 467 U.S. 1206 (1984) (holding
inadmissible decedent’s drug paraphernalia, which was found at the accident
scene, in wrongful death products liability action).
VII.
Defendants allege several instructional errors as well. The district court’s
-18-
decision to give a particular jury instruction is reviewed for an abuse of
discretion. See Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 606 (10th Cir.
1997). The jury instructions actually given by the court are reviewed de novo to
determine whether, taken in their entirety, they correctly informed the jury of the
governing law. See id. “The giving or refusal to give tendered jury instructions
in a diversity action . . . is governed by federal law and rules. . . . However, a
determination of the substance of a jury instruction in a diversity case is a matter
of state substantive law.” Harvey v. General Motors Corp., 873 F.2d 1343, 1352
(10th Cir. 1989) (internal citations omitted).
Defendants argue that the court failed to instruct the jury that Mr. Gust also
had asserted a claim against Mr. Dighera. Although the district court refused to
instruct the jury regarding Mr. Gust’s cross-claim against Mr. Dighera exactly as
Defendants desired, the jury instructions as a whole and the listing of Mr. Dighera
on the verdict form for comparative negligence purposes clearly indicate that the
jury was informed of the applicable law. See R., Vol. II at 427-32, 440-57 (Jury
Instr. Nos. 7, 9-11, 19-20, 21B, 22, 26). The jury obviously understood the
practical application of the cross-claim because they awarded a judgment against
Mr. Dighera for a portion of Mr. Gust’s damages.
Defendants also claim that the court erred in instructing that Willis Shaw
was jointly liable for the percentage of fault attributable to Mr. Jones. Because
-19-
Defendants admitted and stipulated that Mr. Jones was an employee of Willis
Shaw acting in the scope and course of his employment at the time of the
accident, we find no error in this joint liability instruction. See Williams v.
Community Drive-In Theater, Inc., 520 P.2d 1296, 1302 (Kan. 1974). Defendants
also contend that the court’s limiting instruction concerning Mr. Gust’s failure to
meet with one of Defendants’ witnesses, Mr. Bud Langston, was erroneous. We
conclude that the court did not commit error by instructing the jury that it need
not consider the reasons that Mr. Gust and Mr. Langston failed to meet. The
instruction properly limited consideration of this extraneous matter. Additionally,
we reiterate that, because we determined that there was insufficient evidence to
support a malpractice claim against Dr. Mitra, the court properly instructed the
jury that there was no medical negligence in this case and correctly refused to
instruct the jury on Dr. Mitra’s alleged comparative fault.
VIII.
Defendants allege that the district court erred when it allowed a police
officer to testify that he had asked Mr. Jones to take a blood alcohol test because
of the bloodshot condition of Mr. Jones’ eyes. After reviewing the record, we
hold that the court did not abuse its discretion by admitting this testimony. To
mitigate any potential prejudice, the officer testified to the negative .00 blood
-20-
alcohol test results, and the court instructed the jury that alcohol had no role in
causing the collision and that it should completely ignore any evidence to the
contrary. See R., Vol. II at 453.
IX.
In the first stages of this action, Mr. Dighera and Mr. Gust were
represented by the same attorney. However, the cross-claim filed by Mr. Gust
against Mr. Dighera created a direct conflict of interest between them. Because
Mr. Gust and Mr. Dighera waived the conflict and requested continued joint
representation, their joint attorney represented Mr. Dighera with regard to his
claims for personal injuries and damages against Defendants, and a second
attorney represented Mr. Dighera only in defending against the cross-claim. At
trial, the district court limited the ability of Mr. Dighera’s cross-claim attorney to
examine the witnesses testifying to Mr. Gust’s damages. Nonetheless, Defendants
maintain that they were prejudiced by Mr. Dighera's representation by two
attorneys while Mr. Dighera contends that the court erred by not allowing his
counsel on the cross-claim to examine the witnesses testifying on the issue of Mr.
Gust’s damages. We review the court’s decisions regarding the conduct of a trial,
including decisions limiting the cross-examination of witnesses, under a
deferential abuse of discretion standard. See Strickland Tower Maintenance, Inc.
-21-
v. AT&T Communications, Inc., 128 F.3d 1422, 1430 (10th Cir. 1997).
Our review of the record indicates that Mr. Dighera was represented in two
capacities–as a plaintiff for his complaint and as a defendant for the cross-claim.
We believe that it was a reasonable exercise of the court’s managerial discretion
to allow separate examinations of witnesses in relation to those two capacities.
The court did not abuse its discretion in allowing both of Mr. Dighera’s counsel
to act on his behalf. Further, according to the record, the court required the
attorney who represented Mr. Dighera on the cross-claim and the joint attorney
who represented Mr. Gust and Mr. Dighera to split their allotted time for opening
statements and closing arguments. In other words, Plaintiffs’ joint attorney and
Mr. Dighera’s cross-claim attorney together were given the same amount of time
for statements and arguments as were Defendants’ attorneys. Thus, no prejudice
stemmed from the court’s decision to allow both of Mr. Dighera’s counsel to
utilize the allotted time.
We decline to consider Mr. Dighera’s contention that the district court
erred by refusing to allow his counsel on the cross-claim to examine witnesses
testifying about Mr. Gust’s damages. Because Mr. Dighera did not present this
issue to the district court, he has waived its consideration on appeal. See Walker
v. Mather, 959 F.2d 894, 896 (10th Cir. 1992). This is not the type of case which
-22-
warrants our application of the plain or manifest error analysis. 3
X.
Defendants contend that the court also erred in excluding what they
characterize as a “judicial admission” by Mr. Dighera arising out of the pretrial
order. At trial, Defendants’ counsel asked Mr. Dighera whether he had previously
denied that Mr. Gust had been injured or damaged to the extent claimed. Over his
counsel’s objection, Mr. Dighera testified that he knew for a fact that Mr. Gust
had injuries and that he did not contend otherwise. To impeach Mr. Dighera’s
credibility, Defendants’ counsel then attempted to introduce into evidence the
pretrial order, which contained the following pertinent statements: “[Mr.]
Dighera denies any allegations of fault set forth by the Defendants or any other
party. [Mr.] Dighera also denies that the Plaintiff Gust has been injured or
damaged to the extent claimed.” R., Vol. I, Doc. 11 at 48-49. The court,
however, refused to allow the admission of the pretrial order for substantive or
impeachment purposes.
The pretrial order in this case contains separate sections setting forth the
3
We note that, even if Mr. Dighera had preserved the issue for appeal, the
court did not abuse its discretion in limiting the cross-claim attorney’s cross-
examination to certain witnesses. That Defendants vigorously pursued the issue
of Mr. Gust’s damages further indicates that Mr. Dighera was not prejudiced by
the court’s exercise of its discretion.
-23-
legal contentions and theories of each party. In some of those sections, the legal
contentions and theories of the parties are interspersed with admissions of fact.
For example, the following statement combines an admission of fact with
Mr. Jones’ legal contention about fault: “Mr. Jones admits that the accident is
partially his fault, but notes that Mr. Dighera could have avoided the accident
entirely.” R., Vol. I., Doc. 11 at 49. We agree with the district court that the
statement at issue in this case is purely a legal contention or theory set forth by
Mr. Dighera and does not contain any admission of fact. Therefore, the court’s
refusal to admit this statement and the entire pretrial order into evidence was not
erroneous.
XI.
Defendants suggest that the district court erred when it did not grant their
request for a continuance or preclude a portion of Mr. Gust’s economic damages
to sanction Mr. Gust for withholding discoverable information. We review the
court’s denial of a motion for continuance, see United States v. Gutierrez, 48 F.3d
1134, 1138 (10th Cir.), cert. denied, 515 U.S. 1151 (1995), and its decision
concerning sanctions, see G.J.B. & Assocs., Inc., v. Singleton, 913 F.2d 824, 825
(10th Cir. 1990), for an abuse of discretion.
After reviewing the record, we hold that the court did not abuse its
-24-
discretion by choosing to impose other sanctions suggested by Defendants and by
refusing to continue the trial or deny Mr. Gust’s claim for economic damages.
Mr. Gust was prohibited from offering any evidence concerning the undisclosed
information, see R., Vol. III, Doc. 52 at 624, and the court imposed monetary
sanctions against him, see id., Vol. II, Doc. 51. The court’s action was soundly
within its discretion.
XII.
Mr. Dighera asserts that the district court erred in denying his motion for a
directed verdict on Mr. Gust’s cross-claim against him at the close of Mr. Gust’s
case. 4 Mr. Dighera contends that the court misinterpreted whether Kansas law
requires a co-plaintiff to prove a case against the other co-plaintiff who is also a
cross-claim-defendant. We review de novo the district court’s denial of a motion
for directed verdict in a diversity case. See Conoco, Inc. v. ONEOK, Inc., 91
F.3d 1405, 1407-08 (10th Cir. 1996). In reviewing the court’s ruling on a
directed verdict, we cannot substitute our judgment for that of the jury. See
Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992), cert. denied, 507
4
We are cognizant of the fact that pursuant to Federal Rule of Civil
Procedure 50 a motion for a directed verdict is now a motion for judgment as a
matter of law. For the sake of simplicity, we will continue to use Plaintiff’s
directed verdict terminology in this opinion.
-25-
U.S. 973 (1993). This aphorism contemplates that a directed verdict is warranted
only if the evidence and all inferences point in one direction. In other words,
when there is some evidence against a movant, the question must go to a jury.
See Oja, 111 F.3d at 792; Grasmick v. Otis Elevator Co., 817 F.2d 88, 90 (10th
Cir. 1987).
As we stated above, the Kansas comparative fault scheme is clearly
intended to provide an opportunity for a jury to hear a comprehensive presentation
of the facts and then to determine fault among the parties accordingly. See Kan.
Stat. Ann. 60-258a. Kansas courts consistently interpret their comparative
negligence scheme to require that negligence actions definitively dispose of the
fault of each potential tortfeasor. See Hardin, 691 F.2d at 455 (“[W]e think
Kansas has opted for broad jury latitude and good sense in the interest of what it
considers the higher value of settling injury disputes in one action.”); Mick v.
Mani, 766 P.2d 147, 158 (Kan. 1988) (“The one-action rule is not an extension of
the doctrine of res judicata but the result of legislation. . . . [T]he legislature
intended that henceforth all negligence claims arising out of one occurrence must
be determined in one action.”). Under this scheme, “every party has a right to
cross-claim against any other party to the lawsuit,” and all parties “who are
properly served are bound by the adjudication of the percentage of causal
negligence.” Chavez v. Markham, 889 P.2d 122, 126 (Kan. 1995). Kansas
-26-
Statute Annotated § 60- 250(b) provides that “[d]ecisions on motions for directed
verdict by parties joined pursuant to subsection (c) of K.S.A. 60-258a and
amendments thereto[] shall be reserved by the court until all evidence has been
presented by any party alleging the movant’s fault.” Mr. Dighera asserts that he
was not added as a party pursuant to section 60-258a(c) and that, therefore,
section 60-250(b) does not apply to him.
If Mr. Dighera had been made a defendant in the case by Willis Shaw and
Mr. Jones pursuant to section 60-268a(c), a motion for a directed verdict could
not be considered by the judge until the close of all of the evidence. However, we
agree with the district court that “it does not matter whether [Mr.] Dighera was
brought into the lawsuit pursuant to K.S.A. 60-258a(c),” and that “a directed
verdict would be inappropriate until the defendants finished offering evidence.
The defendants [had] an independent right to assert [Mr.] Dighera’s liability and
[would] be bound by the determination of fault.” R., Vol. I, Doc. 14 at 98.
Moreover, the court did not err in determining that Mr. Dighera also “[would] be
bound by the jury’s determination of fault and liable to [Mr.] Gust for his share of
the damages.” Id.
We acknowledge the wisdom of the court’s prudent decision to let the jury
hear all of the potential evidence and apportion fault among the parties. Given
the adversarial nature of American jurisprudence, we believe the law of
-27-
comparative negligence requires that all potentially liable parties receive a full
hearing on the purported negligence of other potential tortfeasors before a jury
may adjudicate fault. The purpose of the comparative fault statutes would have
been thwarted if the court did not allow Mr. Gust to recoup the full measure of his
damages from all tortfeasors or if the jury were not allowed to consider the claims
made against all parties prior to reaching a verdict. Therefore, we see no error in
the district court’s decision to deny Mr. Dighera a verdict in his favor before
Defendants, the parties with the greatest interest in establishing his liability, had
an opportunity to present their evidence. See Oja, 111 F.3d at 792 (granting a
directed verdict is improper when there is evidence upon which the jury could
properly find for the non-moving party); Hurd v. American Hoist & Derrick Co.,
734 F.2d 495, 498-99 & n.3 (10th Cir. 1984).
XIII.
Finally, having considered Plaintiff-Appellee Gust’s motion to supplement
the record on appeal and Defendants-Appellants’ motion to strike Mr. Gust’s brief
and supplemental appendix, and the responses thereto, we deny both motions. For
purposes of this appeal, this court considered no evidence or argument not raised
or received in the district court.
AFFIRMED.
-28-