F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 5 1999 TENTH CIRCUIT PATRICK FISHER Clerk
JEANNIE L. LANE,
Plaintiff-Appellee,
v. No. 97-8121 (D.C. No. 96-CV-1053) WAL-MART STORES, INC., a (D. Wyo.) Delaware corporation, acting by and through its officers, agents, employees and/or representatives,
Defendant-Appellant.
and
Plaintiff-Appellant,
v. No. 97-8124 (D.C. No. 96-CV-1053) WAL-MART STORES, INC., a (D. Wyo.) Delaware corporation, acting by and through its officers, agents, employees and/or representatives,
Defendant-Appellee.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court (continued...) Before EBEL, BRISCOE, and LUCERO, Circuit Judges.
Defendant Wal-Mart Stores, Inc., appeals a jury verdict in favor of plaintiff
Jeannie Lane on her negligence claim arising out of injuries she suffered while
employed by Wal-Mart. Lane cross-appeals, challenging the district court’s
decision to allow Wal-Mart a set-off against the verdict for amounts paid to Lane
by a privately-funded workers compensation program. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
I.
Lane was injured in early December 1992 when she fell from a fifteen-foot
ladder while stocking merchandise at a Wal-Mart store in Gillette, Wyoming. She
suffered additional injuries on December 15, 1992, when she fell from an eight-
foot ladder while attempting to retrieve merchandise from a shelf at the same
store. Lane filed this diversity action on October 1, 1996, asserting negligence
and breach of contract claims and seeking actual and punitive damages. Lane
abandoned her breach of contract claim before trial. The issue of punitive
damages did not reach the jury. As regards her negligence claims, a jury found
Wal-Mart was ninety-five percent at fault and Lane was five percent at fault. The
* (...continued) 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.
-2- jury found Lane suffered total economic damages of $360,684.80. The district
court reduced the damage award by the five percent fault the jury found
attributable to Lane and by $60,000.70 for payments made under a privately-
funded workers compensation program. Judgment was entered in favor of Lane in
the amount of $282,649.86.
II.
Wal-Mart’s Appeal
Exclusion of evidence of workers compensation payments
Wal-Mart contends the district court should not have applied Wyo. Stat.
Ann. § 1-1-108 to prevent admission of evidence that most of Lane’s medical bills
and a portion of her lost wages had already been paid. We review a decision to
exclude evidence for abuse of discretion. Cartier v. Jackson , 59 F.3d 1046, 1048
(10th Cir. 1995). In conducting this review, we “will not disturb the
determination absent a distinct showing it was based on a clearly erroneous
finding of fact or an erroneous conclusion of law or manifests a clear error of
judgment.” Id. Even if there was error in the exclusion of evidence, we will set
aside a jury verdict only if the error prejudicially affected a substantial right. See
Polys v. Trans-Colorado Airlines, Inc. , 941 F.2d 1404, 1407 (10th Cir. 1991).
Wal-Mart does not contribute to the state workers compensation fund.
Instead, it provides no-fault workers compensation coverage to its employees
-3- through a wholly-owned subsidiary, Claims Management, Inc. Lane filed a
motion in limine prior to trial asking the district court to exclude all evidence of
benefit payments made to her by Claims Management, pursuant to Wyo. Stat.
Ann. § 1-1-108 1 and/or the collateral source rule. The court granted Lane’s
motion, concluding the evidence was inadmissible under § 1-1-108. Wal-Mart
argues the excluded evidence was necessary to respond to Lane’s alleged attempts
to portray Wal-Mart as an “uncaring” corporation that refused to accept
responsibility for injuries suffered by its employees. In this regard, Wal-Mart
cites Lane’s closing argument, in which counsel asked the jury to “send a message
to the corporate community . . . that they should accept responsibility for injuries
that they’ve caused their employees.” App. at 305. Wal-Mart also cites Lane’s
rebuttal closing argument where counsel argued his client’s future opportunities
were limited because of a “corporate citizen who does not care.” Id. at 312.
After reviewing the record on appeal, we find it unnecessary to determine
1 The statute provides: No voluntary partial payment of a claim based on alleged liability for injury or property damage shall be construed as an admission of fault or liability, or as a waiver or release of claim by the person receiving payment. Such payment is not admissible as evidence in any action for the purpose of determining the amount of any judgment, with respect to the parties to the occurrence from which the claim arose. . . . After entry of judgment, any such payment shall be treated as a credit and deducted from the amount of the judgment. . . . No voluntary partial payments shall be construed to reduce the amount of damages which may be pleaded and proved in a court proceeding between the parties.
-4- whether the district court correctly construed § 1-1-108. Even assuming the court
misconstrued the statute and improperly excluded the evidence, the resulting error
was harmless. The evidence at issue was irrelevant to any of the issues posed to
the jury (i.e., allocation of fault and calculation of total economic damages
suffered). Although Wal-Mart maintains the evidence was necessary to respond
to Lane’s characterization of Wal-Mart as an “uncaring” corporation, the jury was
not asked to determine that issue. Indeed, the court specifically instructed the
jury that, “[i]n fixing the amount of [the damage] award,” it was not allowed to
“include in, or add to an otherwise just award, any sum for the purpose of
punishing Wal-Mart, or to serve as an example or warning for others.” Suppl.
App. at 371. Even if the evidence had been admitted, it would not have affected
the verdict. We specifically note in this regard that Wal-Mart does not challenge
the amount of the jury’s damage award. Further, when Lane’s counsel made the
arguments Wal-Mart now challenges, Wal-Mart’s counsel did not object. By
failing to object, Wal-Mart waived any argument it may have had concerning the
statements made by Lane’s counsel in closing argument. See Glenn v. Cessna
Aircraft Co. , 32 F.3d 1462, 1465 (10th Cir. 1994) (“A party who waits until the
jury returns an unfavorable verdict to complain about improper comments during .
. . closing arguments is bound by that risky decision and should not be granted
relief.”).
-5- Jury instructions
Wal-Mart contends instruction No. 17 was not supported by the evidence
and was an erroneous statement of the law when read in conjunction with the
other instructions, and that the instruction improperly emphasized Lane’s theory
of the case. The instruction provided:
The plaintiff’s supervisors owed a duty to plaintiff to perform those duties entrusted to them by their employer. As supervisors, those duties included the requirement of performing such reasonable inspection and repair of the workplace, including inspection and repair of any equipment utilized at the workplace, and taking such preventive steps as would be necessary and reasonable under the circumstances.
Suppl. App. at 363. Wal-Mart argued the instruction was “duplicative . . . of
[instruction] 16 to a certain extent,” “unnecessary,” and “not supported by the
evidence.” Id. at 291-92. Wal-Mart contends the instruction was not supported
by the evidence presented at trial and not a correct statement of the law.
We review de novo whether the district court’s instructions, considered as a
whole, properly stated the applicable law and focused the jury on the relevant
inquiry. Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1509 (10th Cir.), cert. denied
118 S. Ct. 626 (1997). An instruction should not be given if it is not supported by
the evidence at trial. FDIC v. Clark , 978 F.2d 1541, 1550 (10th Cir. 1992). We
will reverse for a faulty jury instruction if we have “substantial doubt whether the
instructions, considered as a whole, properly guided the jury in its deliberations.”
-6- Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1454 (10th Cir. 1997).
At the outset, we are not convinced Wal-Mart’s initial argument that
instruction No. 17 is contrary to Wyoming law was raised at trial. Wal-Mart
objected only on the basis that the instruction was “duplicative,” “unnecessary,”
and “not supported by the evidence.” Even assuming Wal-Mart properly
preserved the issue, we conclude the instruction, when considered with the other
instructions given, properly comported with Wyoming law. Wal-Mart
acknowledges, as set forth in instruction No. 16, that Wyoming law requires an
employer “to provide its employees with a reasonably safe place to work,” and
“must exercise the care and skill that a person of ordinary prudence would
observe under the circumstances in furnishing employees with reasonably safe
equipment.” Suppl. App. at 362; see Case v. Goss , 776 P.2d 188, 192 (Wyo.
1989) (employer “is emburdened with the duty to provide his workers with a
reasonably safe place to work”); Engen v. Rambler Copper and Platinum Co. , 121
P. 867, 874 (1912) (it is master’s duty to furnish employees with reasonably safe
machinery, appliances, tools, and a place to work, and to keep the same in
reasonable safe repair). Wal-Mart further acknowledges, as set forth in
instruction No. 3, that “it may act only through natural persons as its agents or
employees.” Suppl. App. at 346; see generally Case , 776 P.2d at 192 (“the
realities of modern industry dictate that many of the legal duties owed by the
-7- employer to his employees are in fact delegated by the employer to subordinate
supervisory personnel”). Thus, the question of which Wal-Mart employee(s) bore
the burden of ensuring the safety of the workplace (including repair of broken
ladders) depended upon evidence presented at trial. See id. (in determining
existence and nature of duties owed by supervisory personnel to other employees,
court must examine evidence, including arrangements between employer and
supervisory personnel). Presumably, the district court concluded the evidence
was sufficient to demonstrate that Wal-Mart’s supervisory employees bore this
burden.
We also reject Wal-Mart’s remaining argument that instruction No. 17 was
not supported by the evidence. Under Wal-Mart’s preventive maintenance
program, “all employees [including supervisory employees] were [expressly]
directed to look for ways to prevent accidents and use common sense in
eliminating hazards.” App. at 140. More importantly, the evidence
overwhelmingly indicated management was well aware of the poor condition of
the ladders but failed to take any action to repair or replace them. Three Wal-
Mart employees testified that during store meetings (which occurred at least
weekly, and often daily), employees routinely complained to the store manager
and assistant managers about the poor condition of the ladders, but that
management responded it did not have money in the store budget to correct the
-8- problem. Another employee testified the store’s safety committee notified store
management about the poor condition of the ladders. According to employee
Amy Bartow, the ladders “were a big issue” in the three years she had worked at
the store, but “nothing ever happened” and employees had no choice but to use
the damaged ladders. Id. at 451.
Testimony of Dr. Painter
In a convoluted argument, Wal-Mart contends the district court erred in
allowing Lane “to improperly utilize duplicative designations of expert witnesses
in violation of” the court’s Local Rule 26(h) (now incorporated as Local Rule
26(e)(1)), Wal-Mart’s Br. at 14, which governs discovery of expert testimony and
provides that “parties are limited to the designation of one expert witness to
testify for each particular field of expertise.” Id. at 34. We review the district
court’s application of its local rules for abuse of discretion. See Hernandez v.
George , 793 F.2d 264, 269 (10th Cir. 1986).
To understand Wal-Mart’s argument, it is necessary to review the
background of the designation of Dr. Rebecca Painter as an expert witness. Lane
timely filed her designation of expert witnesses approximately four months prior
to trial. The designation listed four expert medical witnesses: (1) Dr. Painter, an
internist who treated Lane; (2) Dr. David Healow, an expert in pain management
-9- who treated Lane; (3) Dr. Joel Berenbeim, a doctor of osteopathy who treated
Lane; and (4) Dr. Raisa Gringauz, a physiatrist who was board certified in the
field of physical medicine and rehabilitation, and who treated Lane. The
designation described the witnesses’ probable testimony. With respect to Drs.
Painter, Healow, and Berenbeim, the designation further indicated each would
“address, discuss and critique the findings and conclusions offered by other
experts and physicians involved in this case.” Id. at 21, 22, 23.
Wal-Mart filed no objection to Lane’s designation, but relied on the
designation in determining depositions prior to trial. Counsel for Wal-Mart
allegedly contacted counsel for Lane and asked if he intended to call Drs.
Healow, Berenbeim, and Gringauz as witnesses at trial. Lane’s counsel indicated
he would probably call Dr. Healow. With respect to Dr. Painter, Wal-Mart
assumed she would be called as a witness, but that she would only testify “in
accordance with her records regarding her role as a treating physician of Lane.”
Wal-Mart’s Op. Br. at 35. Notwithstanding its assumption that Dr. Painter would
testify at trial, Wal-Mart chose not to depose her. Lane’s counsel asserts Wal-
Mart chose not to depose Dr. Painter because it did not want to pay her deposition
fee of $500 per hour.
Wal-Mart filed a motion in limine on the eve of trial, arguing although
Lane’s designation indicated Dr. Painter would “‘address, discuss and critique the
-10- findings and conclusions’” of other medical experts, her “testimony should be
limited to her role as a treating physician.” App. at 45. Wal-Mart offered no
basis for its argument and did not cite Local Rule 26(h). The district court
rejected Wal-Mart’s motion in limine at trial, concluding Lane’s designation was
“reasonably specific,” and that Dr. Painter’s testimony would be limited to the
scope of the designation. Wal-Mart filed a motion for judgment as a matter of
law after trial, arguing in part that Dr. Painter’s testimony should have been
limited. The court rejected the motion, concluding Wal-Mart “was sufficiently
notified of the nature of Dr. Painter’s testimony,” and was “not prejudiced as a
result of the Court’s decision to allow her to testify regarding the opinions of
other experts.” Id. at 96.
We find no merit to Wal-Mart’s arguments. Wal-Mart made a tactical
decision not to depose Dr. Painter even though it assumed she would be called as
a witness. Wal-Mart attempted at the last minute to limit the scope of Dr.
Painter’s trial testimony, without any basis in law or fact. We find no abuse of
discretion in allowing Lane to introduce the testimony of Dr. Painter, all of which
fell within the scope of the topics outlined in Lane’s designation.
Frivolous appeal sanctions
Lane contends Wal-Mart’s appeal is frivolous and that we should remand
the case “to the district court for determination of sanctions,” pursuant to Fed. R.
-11- App. P. 38. Lane’s Op. Br. at 41. Because Lane’s request is contained in an
appellate brief rather than in a “separately filed motion” as required by Rule 38,
we have no power to act. As the Advisory Committee Notes to Rule 38 indicate:
“Only a motion, the purpose of which is to request sanctions, is sufficient” to
provide an opposing party with notice of a request for sanctions. Alternatively,
the court itself may give notice to an appellant that it is considering sanctions and
allow appellant an opportunity to respond.
III.
Lane’s Cross-Appeal
Setoff of amounts paid by Claims Management
Lane contends the district court erred in allowing Wal-Mart a set-off,
pursuant to Wyo. Stat. Ann. § 1-1-108, for the amounts paid to her by Claims
Management. According to Lane, Wal-Mart should have been judicially estopped
from obtaining the set-off because of its prior assertions during the litigation that
Claims Management was a “separate corporation” and there was “no contractual
relationship” between Claims Management and Wal-Mart. Lane’s Op. Br. at 42.
Given these assertions, Lane argues the collateral source rule should operate to
bar Wal-Mart from benefitting from payments made by a third party.
We conclude the doctrine of invited error precludes Lane from challenging
the district court’s set-off decision. “Under the doctrine of invited error, if a
-12- party induces action by a court, the party cannot argue error because the court
took such action.” Engle v. State , 821 P.2d 1285, 1287 (Wyo. 1991); see also
Schott v. State , 864 P.2d 38, 39 (Wyo. 1993) (“the principle of ‘invited error’ is
that if, during the progress of a cause, a party requests or moves the court to make
a ruling which is actually erroneous, and the court does so, that party cannot take
advantage of the error on appeal or review”). Here, Lane herself requested,
pursuant to a pretrial motion in limine, that the district court apply § 1-1-108. As
previously noted, the court granted Lane’s motion and precluded Wal-Mart from
introducing evidence of payments made by Claims Management. Under the law
of the case doctrine, see Lyden v. Winer , 913 P.2d 451, 454 (Wyo. 1996), the
court also applied § 1-1-108 after the verdict to allow Wal-Mart a set-off for
payments made by Claims Management. Because application of § 1-1-108 was
the result of Lane’s motion, she is in no position to now challenge that decision
on appeal.
Even assuming Lane could properly challenge the set-off decision, there is
no merit to her “judicial estoppel” argument. Under Wyoming law, 2 the doctrine
2 Although there is disagreement concerning whether in a diversity case the doctrine of judicial estoppel is controlled by federal or state law, see , e.g. , Helfand v. Gerson , 105 F.3d 530, 534 (9th Cir. 1997) (federal law controls); Original Appalachian Artworks, Inc. v. S. Diamond Assoc., Inc. , 44 F.3d 925, 930 (11th Cir. 1995) (state law controls), we have consistently applied state law in such situations. See Tri-State Generation & Trans. Assoc., Inc. v. Shoshone (continued...)
-13- of judicial estoppel “precludes a party from asserting inconsistent positions in
different judicial proceedings.” Ottema v. State ex rel. , 968 P.2d 41, 45 (Wyo.
1998). The inconsistent positions allegedly taken by Wal-Mart were during the
course of a single judicial proceeding. Thus, the doctrine did not apply and did
not prevent Wal-Mart from arguing it was aligned with Claims Management for
purposes of receiving a set-off.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe Circuit Judge
2 (...continued) River Power, Inc. , 874 F.2d 1346, 1363 (10th Cir. 1989); Ellis v. Arkansas Louisiana Gas Co. , 609 F.2d 436, 440-41 (10th Cir. 1979); Reno v. Beckett , 555 F.2d 757, 770 (10th Cir. 1977). Accordingly, we apply Wyoming law in this case.
-14-