Vincent v. Nelson

51 F.4th 1200

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 27, 2022
• Docket: 20-8030
• Status: Published

Opinion

Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 27, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

WESLEY DALE VINCENT,

Plaintiff - Appellant,

v. No. 20-8030

AVA NELSON,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:16-CV-00270-ABJ) _________________________________

R. Todd Ingram, Metier Law Firm, Fort Collins, Colorado (Tom Metier, Metier Law Firm, Fort Collins, Colorado and C. John Cotton, Cotton Law Office, Gillette, Wyoming, with him on the briefs), for Plaintiff-Appellant.

Malcolm S. Mead, Hall & Evans, LLC, Denver, Colorado (Kenneth H. Lyman, Hall & Evans, LLC, Denver, Colorado and James C. Worthen, Hall & Evans, LLC, Casper, Wyoming, with him on the brief), for Defendant-Appellee. _________________________________

Before HOLMES, Chief Judge, TYMKOVICH, and McHUGH, Circuit Judges. _________________________________

HOLMES, Chief Judge. _________________________________

Plaintiff-Appellant Wesley Dale Vincent and Defendant-Appellee Ava Nelson

were involved in a collision while working as coal-haul truck drivers at a mine in

Campbell County, Wyoming. Mr. Vincent initiated a personal-injury case in Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 2

Wyoming federal district court. Following a two-week trial, a jury concluded that

Ms. Nelson did not act with willful and wanton misconduct, and thus was not liable

for Mr. Vincent’s damages.

Mr. Vincent now challenges the district court’s evidentiary rulings during trial,

its denial of his pre-trial motion to compel the introduction of evidence regarding the

mine’s financial interest in the litigation, and the denial of his motion for a new trial.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

judgment.

I. FACTUAL BACKGROUND

Thunder Basin Mine (the “Mine”) is an open-pit coal mine located in

Campbell County, Wyoming. Thunder Basin Coal Company (“Thunder Basin

Coal”), a wholly owned subsidiary of Arch Coal, operates the Mine. Haul-truck

drivers transport the coal on unpaved roads from “the shovel,” which digs the rock

from the Mine’s pit, to “the crusher,” which breaks the coal into smaller chunks.

Aplt.’s App., Vol. 6, at 19 (Trial Tr. Vol. IIa, dated Jan. 14, 2020); id., Vol. 9, at 27,

54–55, 199 (Trial Tr. Vol. VII, dated Jan. 22, 2020).1 Working in twelve-hour shifts,

the drivers make multiple runs between the shovel and the crusher to keep the Mine

operating 24/7. And, given that the Mine operates at night and lacks sources of

illumination like streetlamps, the drivers operate in dimly lit conditions. That makes

for dangerous work given the size of haul trucks. At 27-feet wide, 47-feet long, and

1 Because the page numbers of Appellant’s Appendix are obscured in certain instances, this Opinion cites to the CM/ECF page numbers. 2 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 3

25-feet tall, haul trucks are so large that an average-sized adult male is shorter than

the vehicle’s rims. To accommodate the trucks’ mammoth size and ensure a wide

berth between passing rigs, haul roads are generally, at a minimum, 130-feet wide.

Some roads, however, are significantly narrower, requiring coordination between

passing drivers.

On the night of October 13, 2013, Ms. Nelson was several hours into her shift

when Thunder Basin Coal put Mr. Vincent on the same route. As Ms. Nelson drove

her haul truck up and out of the pit, Mr. Vincent drove down into it. When Mr.

Vincent saw Ms. Nelson’s truck coming in the opposite direction, he pulled over and

parked his truck on the side of the road. In attempting to pass, at approximately

2:30 a.m., Ms. Nelson swiped the sideview mirror of Mr. Vincent’s truck with her

own and hit a tail pin that extended from his truck. Mr. Vincent claims to have

suffered serious injuries due to this collision.

Shortly after the accident, two supervisors—Mike McGinty and Jack Steele—

launched an investigation. Based on evidence collected at the accident scene,

interviews, data from computers installed in the Mine’s vehicles, and their own

observations, Mr. McGinty and Mr. Steele concluded that Ms. Nelson was at fault:

[Mr. Vincent] was indeed stopped at the time the trucks made contact. As [Ms. Nelson] approached the truck parked on the road, she thought since she had successfully met and passed another truck at the same narrow place in the road earlier that night, she decided to “go for it.” Unfortunately, she wasn’t far enough over and her truck made contact with [Mr. Vincent’s] truck. After her truck hit his

3 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 4

truck, she stopped, and then resumed pulling forward.

Id., Vol. 12, at 12 (Investigation Notes from the Ava Nelson/Dale Vincent Truck

Accident, dated Oct. 13, 2013). Ms. Nelson lost her job as a result of the accident.

Over three years later, in 2016, Mr. Vincent filed suit under the Wyoming

Workers’ Compensation Act against Ms. Nelson and three other Thunder Basin Coal

employees.2 Mr. Vincent claimed that the accident resulted in “serious and life

altering injuries,” including “an umbilical hernia, injury to his appendix, . . . injuries

to his back and neck,” and “PTSD.” Id., Vol. 2, at 80–81 (Dist. Ct. Order, filed Sept.

30, 2019). Mr. Vincent sought approximately $3,000,000 in damages. While Ms.

Nelson disputed that figure, her principal defense turned on whether she acted

willfully and wantonly when causing the accident. Absent a finding of willful and

wanton conduct, Wyoming law immunized Ms. Nelson from liability. See Wyo. Stat.

Ann. § 27–14–104(a).

Bearing on that “central” issue was “[t]he location of the crash” as it related to

the width of the road at the site of the collision. Aplt.’s App., Vol. 4, at 115 (Dist.

Ct. Order, filed May 12, 2020); id., Vol. 11, at 115 (Trial Tr. Vol. X, dated Jan. 27,

2020) (counsel for Mr. Vincent explaining to the jury that “[t]he dispute is the

location”). More specifically, the parties disputed whether the collision occurred in

“the narrows”—a straight stretch of the road where, even by the admission of Ms.

2 On April 11, 2019, Mr. Vincent stipulated to the dismissal of all defendants except Ms. Nelson. 4 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 5

Nelson’s witnesses, safe passage would have been extremely challenging—or on a

curve leading into a dogleg, where Ms. Nelson maintained there was adequate room

to safely pass.

A. The Evidence

Much of Mr. Vincent’s appeal turns on trial testimony involving an aerial

photograph (the “Aerial Photo”) of the Mine taken prior to the collision. Ms.

Nelson’s three designated expert witnesses—Mr. Steele, Mr. McGinty, and Mr.

Brandon Opfer—did not discuss the photograph during their respective depositions,

and their expert designations did not specifically reference the photograph.

Nevertheless, each used the photograph to formulate an opinion about the location of

the accident.

1. The Aerial Photo

At the beginning of trial, Ms. Nelson introduced the Aerial Photo—an aerial

photograph of the Mine taken on September 24, 2013, that is, roughly three weeks

before the accident. Thunder Basin Coal captures aerial photographs of the Mine

every month to help it assess the amount of coal it has extracted. Ms. Nelson

disclosed the Aerial Photo to Mr. Vincent in December 2018, one year prior to trial.

During trial, Mr. Vincent objected to the Aerial Photo’s admission, arguing

that it did not represent the condition or configuration of the Mine’s roads on the date

of the accident and thus could mislead the jury. Ms. Nelson acknowledged that

because “surface mining road conditions change . . . what is in this photograph is not

the same as what occurred on October 13th.” Aplt.’s App., Vol. 5, at 194 (Trial Tr.

5 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 6

Vol. II, dated Jan. 14, 2020). Nevertheless, she asked that the court admit the Aerial

Photo to “generally describe the area” and to aid the jury in understanding “where

[Mr. Vincent and Ms. Nelson] were coming and where they were going.” Id. at 194–

95. The court agreed.

2. Mr. Steele’s Designation, Deposition, and Trial Testimony

Ms. Nelson designated Mr. Steele, one of the Mine’s supervisors and accident

investigators, as an expert who could testify about Thunder Basin Coal’s

“investigation into the accident.” Id., Vol. 1, at 86–87 (Def.’s FED. R. CIV.

P. 26(a)(2) Expert Disclosure Statement, filed June 3, 2019). The designation

provided that Mr. Steele’s trial testimony would be “consistent with his deposition

testimony, previously taken in this matter,” and it noted that he could look to “any

relevant documents, articles, and exhibits” to formulate an opinion. Id. at 87. Mr.

Steele did not discuss the Aerial Photo during his deposition, however.

At trial, Mr. Steele testified that, as a superintendent of operations, he was

responsible for coordinating the movement of the Mine’s machinery and

investigating any accidents. Mr. Steele explained that he arrived at the Mine a few

hours after the accident, at approximately 7:00 a.m. By that time, workers had

cleared the trucks from the road. However, other employees, including a late-night

superintendent, showed him where they found the trucks and where they believed the

accident had occurred. Mr. Steele and the late-night superintendent then measured

6 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 7

the road by “stepping [it] off,” and determined it was 75 to 80 feet wide.3 Id., Vol. 9,

at 32. Mr. Steele also interviewed Mr. Vincent, Ms. Nelson, and another driver who

had driven the same route on the night of the accident. Based on what he saw and

heard, Mr. Steele prepared a detailed diagram of the access road and accident scene.

When Ms. Nelson asked Mr. Steele to identify the location of the accident

based on the Aerial Photo, Mr. Vincent objected, arguing that such testimony

exceeded the bounds of Mr. Steele’s deposition testimony. Overruling that objection,

the district court permitted Mr. Steele to “testify as to where he was directed to go

[when he arrived at the scene of the accident]; . . . where he looked; where he stepped

off.” Id. at 47.

Mr. Steele confirmed that the pit—as it looked on the night of the accident—

generally looked as depicted in the Aerial Photo, which was, again, taken some three

weeks before. And though he acknowledged that the width of the road might have

changed somewhat during the three weeks between the Aerial Photo’s date and the

accident, the shovel and the crusher had not moved. With the shovel and crusher

functioning as fixed landmarks, Mr. Steele marked the location that he went to when

he responded to the accident and “stepped off the distance.” Id. at 56. He identified

that location as “where the road turns,” commenting that it was approximately “75 to

80 feet” wide. Id. at 56. Mr. Steele also testified that “there wasn’t any doubt in

3 We understand this colloquialism to mean that Mr. Steele measured the width of the road by counting the number of steps it took to walk across it. 7 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 8

[his] mind” as to the location of the crash, which was “where [he] was shown it

occurred.” Id. at 143.

3. Mr. McGinty’s Designation, Deposition, and Trial Testimony

Ms. Nelson designated Mr. McGinty, the other accident investigator, as an

expert who could testify about Thunder Basin Coal’s “operation on the night [of the

accident], and the operations of the haul trucks in the area where the . . . accident

occurred.” Id., Vol. 1, at 86. The designation further advised that Mr. McGinty

could “rely on any relevant . . . exhibits to illustrate or support his” opinion

testimony, and that his trial testimony would be consistent with that offered in his

deposition. Id. Like Mr. Steele, Mr. McGinty did not discuss the Aerial Photo

during his deposition. But he did explain that when he arrived at the scene, Ms.

Nelson had parked her truck approximately 100 feet away from Mr. Vincent’s truck,

or about “100 feet . . . from the point of impact.” Id. at 251–52 (Dep. of Michael J.

McGinty, dated Feb. 11, 2019). Mr. McGinty also discussed his measurements of the

road, noting that he and a Thunder Basin Coal superintendent determined the road

was “somewhere around 75 to 80 feet wide” after “stepp[ing] the road off” at the

“point where the accident occurred.” Id. at 255–56.

Mr. McGinty testified at trial that he arrived at the scene around 2:45 a.m.,

shortly after the accident occurred. As he drove down the access ramp into the pit,

Mr. McGinty could see Ms. Nelson’s truck, which faced him with the headlights on.

Though the trucks “were separated,” Mr. McGinty could see that they were

8 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 9

positioned roughly as they were at the time of the collision: Mr. Vincent’s “was

headed in” while Ms. Nelson’s “was heading out.” Id., Vol. 9, at 216.

At trial, Ms. Nelson asked Mr. McGinty to identify the “general area where the

accident happened” on the Aerial Photo. Id. at 213.4 Using the Aerial Photo, Mr.

McGinty, like Mr. Steele, identified the location of the shovel and the crusher, and

pointed to the place where the accident occurred, which was at or around where Mr.

Vincent stopped his truck. Echoing Mr. Steele, Mr. McGinty opined that the road

measured between 75 and 80 feet wide at the site of the accident, a determination he

also reached by “stepping off” the road. Id. at 217.

4. Mr. Opfer’s Designation, Deposition, and Trial Testimony

Ms. Nelson designated Mr. Opfer—another Thunder Basin Coal employee—to

testify about MineStar, a “computer program that takes information from the . . .

computers installed on [the haul trucks] and generates information regarding the

movement and use of the vehicles.” Id., Vol. 1, at 85. In line with this designation,

Mr. Opfer was expected to testify about MineStar’s “operation and use, and its

application in connection to the accident.” Id. Like Mr. Steele’s and Mr. McGinty’s

designations, Mr. Opfer’s designation stated that he could “rely on any relevant . . .

exhibits to illustrate or support his testimony.” Id. at 85–86.

4 The trial transcript states that Mr. McGinty provided “no audible response” following counsel’s question. Aplt.’s App., Vol. 9, at 213. However, it appears based on the subsequent testimony in the transcript that Mr. McGinty pointed at a location on the Aerial Photo. 9 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 10

In his deposition, Mr. Opfer identified his title as “MineStar [S]upervisor” and

testified that he was charged with ensuring that the “MineStar system is operating

correctly,” including supervising “dispatchers” and the “field techs who repair any

broken items on the MineStar system.” Id. at 217, 219 (Dep. of Brandon Opfer,

dated Jan. 10, 2019). He testified that “all of [Thunder Basin Coal’s] haul trucks are

equipped with a MineStar unit”—that is, “an onboard computer connected to a

wireless network.” Id. at 219–220. According to Mr. Opfer, among other things,

MineStar units provide locational information for the trucks: “So in realtime, near

realtime, depending on how we had the machines configured onboard, they’ll send a

ping back to the office of where they are at for the dispatchers to identify their

location.” Id. at 221.

Mr. Opfer had before him MineStar GPS data regarding the locations of the

haul trucks that were operated by Mr. Vincent and Ms. Nelson on the date of the

accident, October 13, 2013. Notably, however, Mr. Opfer elected to interpret this

data against the background of the Mine’s “digital mine model.” Id. at 222. As Mr.

Opfer explained it:

So we create a digital mine map of . . . where the road segment—where the road network is in our mine. And so as the trucks traverse across the mine site, they’ll go through different waypoints that we use to connect road segments, and then as they enter and exit those waypoints, they will give us locations as well.

10 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 11

Id.; see also id. at 227 (agreeing with Mr. Vincent’s counsel’s statement that a

“waypoint is . . . a physical location out in the field, which is represented by your

designating that position . . . in the MineStar system”).

The locational data was stored on what Mr. Opfer called “Gateway” files; a

Gateway file is “a message that the onboard system generates.” Id. at 222; see id. at

227 (“Gateway is just the type of file that we collect. In the MineStar environment,

we call it a Gateway file.”). Notably, as Mr. Opfer’s testimony highlighted, only the

Gateway files containing the haul-truck, locational information were available for the

date of the accident—not the digital mine model. See id. at 228 (testifying that “the

factual location of that truck [Mr. Vincent’s truck] based on this Gateway file” was

available for October 13, 2013, and “the same information” was available for Ms.

Nelson’s truck).

As for the unavailability of the digital mine model for the accident date, Mr.

Opfer testified that the “mine model is dynamic,” and Thunder Basin Coal “did not

archive how the mine model was configured at that time [i.e., the date of the

accident, October 13, 2013].” Id. at 227. And he elaborated in an exchange with Mr.

Vincent’s counsel:

Q: Are you telling us that you have no images of the . . . Pit in the area where the collision occurred in the MineStar database?

A: No.

Q: No, you’re not telling me that?

11 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 12

A: No, we do not have—the . . . MineStar software does not archive the digital mine model.

Id. at 228.

The upshot is that, though Mr. Opfer had “factual” GPS data for the haul

trucks for the date of the accident, the digital mine model that captured the

configuration of the Mine on October 13 no longer existed; so, Mr. Opfer could not

say, based on the available digital mine model, with absolute precision, where in the

Mine’s configuration of roadways the parties’ haul trucks collided on October 13. In

particular, Mr. Opfer could not say where the haul trucks were in relation to the

shovel or other physical objects in the Mine. In this regard, when asked by Mr.

Vincent’s counsel, if he could identify the location of the shovel that had loaded Ms.

Nelson’s truck shortly before the accident, Mr. Opfer admitted that he could not

“[w]ith this information” because the digital map that he was using as the

“background” for his locational analysis was saved in January 2019—shortly before

his deposition. Id. at 228; see id. (agreeing with Mr. Vincent’s counsel’s assertion

that “the background that shows us where the roads are and where the shovel and

other waypoints are is not from October 13, 2013”). Mr. Opfer stated that, because

the “[t]he digital mine model is updated in realtime” the model that he was using was

“the only background information that we can get.” Id.

However, after the start of trial but before he was scheduled to testify, Ms.

Nelson asked Mr. Opfer if he could “superimpose the MineStar GPS data [i.e., the

Gateway files data] onto the [Aerial Photo], and thereby pinpoint the location of the

12 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 13

accident.” Id., Vol. 4, at 116. Mr. Opfer stated that he could and, together with the

Mine’s engineering department, produced an exhibit to that effect. At Ms. Nelson’s

suggestion, the district court held a hearing “to discuss the new exhibit [she] wished

to introduce through Mr. Opfer’s testimony.” Id. Mr. Vincent objected to the exhibit

on the grounds that it was unreliable and should have been disclosed when Mr. Opfer

was listed as an expert witness. The court sustained Mr. Vincent’s objection but

nevertheless ruled that Mr. Opfer would be permitted “[to] testify[] . . . and draw[] a

diagram . . . showing the jurors the East Pit . . . of Black Thunder Mine and placing

various items in that mine,” including the “shovel, the defense view of where th[e]

incident occurred, and the crusher and other objects; where these vehicles came to

rest eventually after they collided.” Id. (quoting Aplt.’s App., Vol. 11, at 6–7 (Trial

Tr. Vol. IX, dated Jan. 24, 2020)).

At trial, Mr. Opfer presented testimony regarding the MineStar system.

Consistent with the district court’s ruling, and over Mr. Vincent’s objection, he also

“described the work he did with the Engineering Department to transpose the

MineStar data on the [Aerial Photo], drew a diagram of the site and MineStar data,

and ultimately placed pins on the [Aerial Photo], mirroring the crosshair locations [of

the haul trucks] from the MineStar data.” Id. at 117.

5. The Motion to Compel

Several months before trial, Mr. Vincent had moved to compel Ms. Nelson “to

produce information regarding insurance coverage and the obligation of [Thunder

Basin Coal] to indemnify [her] by paying a portion of the verdict.” Id., Vol. 2, at 58

13 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 14

(Pl.’s Mot. to Compel, filed Sept. 20, 2019). Mr. Vincent alleged that Arch Coal,

Thunder Basin Coal’s parent company, had $15,000,000 in insurance coverage, in

addition to a previously disclosed $5,000,000 policy covering occurrences of bodily

injury. Mr. Vincent alleged that Arch Coal would have to pay a sizeable deductible

under the undisclosed policy before the insurance company would indemnify Ms.

Nelson. Mr. Vincent maintained that discussing either Arch Coal or Thunder Basin

Coal’s financial interest was “relevant to the bias and credibility” of Ms. Nelson’s

designated experts, who were employed by Thunder Basin Coal or had just recently

retired. Id. at 62. In disagreeing, the district court concluded that “[t]o allow the

evidence requested by [Mr. Vincent] would be to risk confusing the jury on the

issues, potentially delaying the process, and causing the jury to decide the case on

considerations other than liability.” Id. at 128 (Dist. Ct. Order, filed Oct. 28, 2019).

B. The Jury’s Verdict & Post-Trial Briefing

After the jury found that Ms. Nelson “was not liable for [Mr. Vincent’s]

damages,” id., Vol. 4, at 117; see also id., Vol. 2, at 130 (Verdict Form, filed Jan. 27,

2020), Mr. Vincent filed a motion for a new trial, raising three arguments, see id.,

Vol. 3, at 20–29 (Pl.’s Mem. in Support of Mot. for New Trial, filed Feb. 26, 2020).

First, in light of the Aerial Photo and testimony at trial, he argued that Mr. Opfer had

been “[e]ffectively [t]ransformed” from a Rule 26(a)(2)(C) non-retained expert

witness to a Rule 26(a)(2)(B) retained expert witness. See id. at 20. Accordingly,

with respect to Mr. Opfer, Mr. Vincent maintained that Ms. Nelson was required to

provide a written report, but failed to do so. Relatedly, Mr. Vincent contended that

14 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 15

the court wrongly permitted Mr. Opfer to testify beyond his designation. Second, as

Mr. Vincent reasoned, Mr. Opfer’s “[s]urprise [u]ndesignated [e]xpert [t]estimony”

violated Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980), the district court’s

pretrial order, Local Rules, and the Federal Rules of Civil Procedure. Aplt.’s App.,

Vol. 3, at 21–27. And third, Mr. Vincent argued that the court should have permitted

him to challenge the credibility and motives of witnesses based on the Mine’s

financial interest in the case.

In his reply brief in support of the new trial motion, Mr. Vincent attached the

affidavit of Benjamin Cotton, a GPS expert who had never testified or been identified

in the case, to challenge Mr. Opfer’s methodology and conclusions with respect to

the location of the crash. The district court struck Mr. Cotton’s affidavit from the

record.

Ultimately, the court denied Mr. Vincent’s motion for a new trial. Starting

first with Mr. Opfer’s testimony, the court rejected the premise of Mr. Vincent’s

motion: that Mr. Opfer’s testimony exceeded the bounds established by his

designation. As the court put it, Mr. Opfer’s testimony regarding the “application of

the MineStar data,” see id., Vol. 4, at 131, corresponded with his designation, which

provided that he had “experience and expertise regarding MineStar, . . . and its

application in connection to the accident,” id. at 115. Yet, even if Mr. Opfer had

exceeded his designation, the court distinguished Mr. Vincent’s case from our

decision in Smith, and, in any event, found that “the Smith factors” were “not

present.” Id. at 128.

15 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 16

The district court likewise dismissed Mr. Vincent’s argument regarding the

preclusion of evidence concerning Thunder Basin Coal’s financial interest in the case

“for the same reasons described” in its previous rulings on Mr. Vincent’s Motion to

Compel. Id. at 129. In those rulings, the court excluded evidence relating to

Thunder Basin Coal’s financial interests because it was “not a party to this case,”

which was “about Ms. Nelson’s conduct during the incident.” Id., Vol. 2, at 128.

Allowing evidence about Thunder Basin Coal’s financial interests would “risk

confusing the jury on the issues, potentially delaying the process, and causing the

jury to decide the case on considerations other than liability.” Id. Finally, it struck

Mr. Cotton’s ill-timed affidavit, reasoning that if Mr. Vincent “wanted to rely on an

affidavit to challenge Ms. Nelson’s characterization or the accuracy of [the expert

testimony in question], . . . he should have done so in his initial motion [for a new

trial].” Id., Vol. 4, at 114.

Mr. Vincent timely appealed from the district court’s various evidentiary

rulings, order granting Ms. Nelson’s motion to strike, and order denying Mr.

Vincent’s motion for a new trial.

II. JURISDICTION

As an initial matter, we must address our jurisdiction to hear this appeal. We

previously issued a sua sponte order for Mr. Vincent to provide further information

that would be sufficient to confirm the existence of diversity of citizenship between

16 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 17

the parties.5 We explained that Mr. Vincent’s Complaint stated that he was a resident

of Franklinton, Louisiana; however, that information did not suffice to establish

diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See Siloam Springs Hotel,

L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1238 (10th Cir. 2015) (“An individual’s

residence is not equivalent to his domicile and it is domicile that is relevant for

determining citizenship.”). Accordingly, we requested that Mr. Vincent file a

response providing his state of citizenship at the time he commenced this litigation in

the District of Wyoming.

Here, Mr. Vincent filed his initial Complaint on October 31, 2016, and filed

his First Amended Complaint on July 7, 2017. Like his initial Complaint, Mr.

Vincent’s First Amended Complaint only spoke of his Louisiana residency, not his

citizenship. But Mr. Vincent’s response to our order confirms the existence of

diversity jurisdiction—both when he filed the initial Complaint and when he filed the

First Amended Complaint.6

5 Ms. Nelson is a citizen of Wyoming. 6 Though our sua sponte order that inquired regarding the existence of subject-matter jurisdiction referred to Mr. Vincent’s initial Complaint, strictly speaking, it is ordinarily the proper course to “look to the amended complaint to determine jurisdiction.” Rockwell Int’l. Corp. v. United States, 549 U.S. 457, 473–74 (2007); see also United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1252 (10th Cir. 2017) (“[T]he amended complaint—not the original complaint—is the starting point for the jurisdictional determination.”); Parker v. WI Waterson, LLC, 790 F. App’x 926, 929 (10th Cir. 2019) (unpublished) (looking to the plaintiff-appellant’s first amended complaint to determine whether federal question and diversity jurisdiction existed); 14AA Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 3702.4, Westlaw (database updated Apr. 2022) (“Courts look to the amended complaint to determine jurisdiction.”); cf. Rockwell Int’l Corp., 549 U.S. at 473 (noting that, as to the existence of subject-matter 17 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 18

Specifically, by affidavit, Mr. Vincent asserts that on February 24, 2016, he

moved from Wyoming to Louisiana. He states that he has remained in Louisiana

since February 2016 and intends to reside in Louisiana permanently. Mr. Vincent

also attached an affidavit from Charlene Canada, who prepared a Preliminary

Rehabilitation Assessment and Valuation in connection with this litigation, stating

that Mr. Vincent moved from Wyoming to Louisiana prior to August 18, 2016.

Finally, Mr. Vincent attached excerpts from his April 2019 deposition testifying that

he is from Louisiana, that he moved to Wyoming for employment in 2011, and that

his doctor is in Louisiana.

Mr. Vincent’s response confirms that he was a citizen of Louisiana both when

he filed his initial Complaint and his First Amended Complaint: he resided in

Louisiana with the intent to remain there. See Siloam Springs, 781 F.3d at 1238;

Smith v. Cummings, 445 F.3d 1254, 1259–60 (10th Cir. 2006) (“To establish domicile

in a particular state, a person must be physically present in the state and intend to

remain there.”). Diversity jurisdiction therefore exists, and we may proceed to the

merits of Mr. Vincent’s appeal.

jurisdiction, “[t]he state of things and the originally alleged state of things are not synonymous”). However, this proposition has no material impact on our resolution of the jurisdictional inquiry here: as noted, the relevant jurisdictional averment was not changed in the First Amended Complaint; when he filed both the initial Complaint and the First Amended Complaint, Mr. Vincent was a citizen of Louisiana and thus diversity jurisdiction existed under 28 U.S.C. § 1332(a). 18 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 19

III. DISCUSSION

Having determined that we may exercise jurisdiction under § 1332(a), we turn

to the merits of Mr. Vincent’s appeal. Mr. Vincent contends that the district court

abused its discretion in three ways: first, in permitting the undesignated testimony of

Ms. Nelson’s three expert witnesses regarding the location of the crash relative to the

Aerial Photo; second, through various pretrial evidentiary rulings, holding that Mr.

Vincent could not engage in discovery regarding, or introduce evidence of, the

Mine’s financial interest in the case; and third, in striking the affidavit of Mr.

Vincent’s GPS expert, Mr. Cotton. We conclude that each of these arguments is

without merit.

A. Standard of Review

“We review a district court’s decisions on the admission or exclusion of

evidence, including expert testimony, for abuse of discretion.” Prager v. Campbell

Cnty. Mem’l Hosp., 731 F.3d 1046, 1054 (10th Cir. 2013). “A district court abuses

its discretion ‘when it renders an arbitrary, capricious, whimsical, or manifestly

unreasonable judgment.’” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965,

968 (10th Cir. 2001) (quoting Copier ex rel. Lindsey v. Smith & Wesson Corp., 138

F.3d 833, 838 (10th Cir. 1998)). “The abuse-of-discretion standard is ‘one which we

have traditionally understood to mean that we will reverse a determination only if the

court exceeded the bounds of permissible choice, given the facts and the applicable

law in the case at hand.’” Prager, 731 F.3d at 1054 (quoting United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)). The considerable deference

19 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 20

inherent in this standard stems from a recognition that “in many cases there will be a

range of possible outcomes the facts and law at issue can fairly support.” Prager,

731 F.3d at 1054. Consequently, “rather than pick and choose among them

ourselves, we will defer to the district court’s judgment so long as it falls within the

realm of these rationally available choices.” Id.

Similarly, “[a] district court has broad discretion in deciding whether to grant a

motion for a new trial.” Harvey ex rel. Harvey v. Gen. Motors Corp., 873 F.2d 1343,

1346 (10th Cir. 1989). “A new trial is appropriate only where [a] claimed

[evidentiary] error substantially, and adversely, affects the rights of a party.”

Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998).

B. The Experts’ Testimony

The crux of Mr. Vincent’s argument is that the district court erred by allowing

Ms. Nelson’s witnesses to provide testimony that used the Aerial Photo to illustrate

the accident’s location, supposedly without Ms. Nelson satisfying the applicable

expert-witness disclosure requirements. This allegedly improper admission, Mr.

Vincent maintains, was devastating to his case.

We are not persuaded for several reasons. First, Mr. McGinty’s and Mr.

Steele’s testimony pointing to the location of the accident on the Aerial Photo was

lay testimony based on personal experience and observation and thus not subject at

all to expert-witness disclosure requirements. Even if that was not so, however, we

would conclude that both men testified within the confines of their designations.

And, even if their testimony departed from their designations, the district court did

20 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 21

not abuse its discretion in permitting the testimony under our decision in Smith v.

Ford Motor Co. The testimony from Mr. Opfer, likewise, fell within the scope of his

designation, and, in any event, we would be hard pressed to discern any abuse of

discretion under Smith in the court’s admission of it.

1. Mr. McGinty’s and Mr. Steele’s Testimony

a. Lay Opinion Testimony

As an initial matter, Mr. Vincent’s argument presupposes that the testimony at

issue was expert testimony rather than lay testimony. With respect to Mr. Steele and

Mr. McGinty, we disagree.

The Federal Rules of Evidence “distinguish between expert and lay testimony,

not between expert and lay witnesses.” United States v. Caballero, 277 F.3d 1235,

1247 (10th Cir. 2002) (emphasis added). Lay opinion testimony must be:

“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.”

FED. R. EVID. 701(a)–(c). By contrast, “[a] witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise if . . . the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to determine a fact

in issue.” FED. R. EVID. 702. Because the key distinctions here relate to the nature

of the testimony, as opposed to the category of witnesses, “it is possible for the same

21 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 22

witness to provide both lay and expert testimony in a single case.” FED. R. EVID. 701

advisory committee notes to 2000 amendment.

However, certain disclosure requirements attach to witnesses who intend to

deliver expert (as opposed to lay) testimony. Retained expert witnesses, or

employees “whose duties . . . regularly involve giving expert testimony,” must file

detailed written reports that include “(i) a complete statement of all opinions the

witness will express and the basis and reasons for them”; “(ii) the facts or data

considered by the witness in forming them”; “(iii) any exhibits that will be used to

summarize or support them”; (iv) the witness’s qualifications, publications, and

previous experience giving testimony; (v) a list of all other cases in which the

witness testified as an expert at trial or deposition in the previous four years; and

(vi) a statement of the compensation to be paid for the study and the testimony in the

case. FED. R. CIV. P. 26(a)(2)(B)(i)–(vi) (emphasis added). As we have explained,

Rule 26(a)’s retained-expert requirements are “necessary to allow the opposing party

‘a reasonable opportunity to prepare for effective cross examination and perhaps

arrange for expert testimony from other witnesses.’” Jacobsen v. Deseret Book Co.,

287 F.3d 936, 953 (10th Cir. 2002) (quoting FED. R. CIV. P. 26(a)(2) advisory

committee notes to 1993 amendment).

These “extensive” disclosure requirements, however, do not apply to non-

retained expert witnesses. FED. R. CIV. P. 26 advisory committee notes to 2010

amendment (“This [Rule 26(a)(2)(C)] disclosure is considerably less extensive than

the report required by Rule 26(a)(2)(B).”). Non-retained expert witnesses need only

22 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 23

disclose “the subject matter on which [he or she] is expected to present evidence” and

“a summary of the facts and opinions to which [he or she] is expected to testify.”

FED. R. CIV. P. 26(a)(2)(C)(i)–(ii) (emphasis added).

And no disclosure provision applies to a designated expert witness’s lay

testimony. See, e.g., United States v. Kearn, 863 F.3d 1299, 1311–12 (10th Cir.

2017). In Kearn, for instance, we concluded that the testimony of two law

enforcement officers that certain images were child pornography was not expert

testimony because their observations “did not go beyond the realm of common

experience.” Id. For that reason, we rejected the defendant’s argument that the

government circumvented Rule 26’s disclosure requirements through the officers’

testimony. See id.; cf. FED. R. EVID. 701 advisory committee notes to 2000

amendment (stating that Rule 701’s requirements “ensure[] that a party will not

evade the expert witness disclosure requirements set forth in FED. R. CIV. P. 26 . . .

by simply calling an expert witness in the guise of a layperson”).

We conclude, at the outset, that though designated as non-retained experts, Mr.

Steele and Mr. McGinty both provided lay testimony based on their personal

perceptions, as well as expert testimony based on their specialized knowledge of

mining operations. Notably, their testimony identifying the location of the accident

on the Aerial Photo—which Mr. Vincent objects to on appeal—fell squarely within

the first bucket (i.e., lay testimony).

Mr. Steele recounted factual details from his investigation at the accident

scene—not conclusions based on specialized or technical knowledge. Mr. Steele had

23 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 24

considerable experience at the Mine when he testified that the “general layout of the .

. . [p]it . . . remained the same” “in the . . . 20 days between when [the Aerial Photo]

was taken and when th[e] accident occurred.” Aplt.’s App., Vol. 9, at 51. Relying

on that personal knowledge, Mr. Steele “generally describe[d]” the area by

identifying the crusher, shovel, and the “location that [he] went to” and “stepped off”

when measuring the width of the road. Id. at 54–56. Based on both his personal

experience and reports he received from colleagues, Mr. Steele pointed to the

accident’s “specific[] . . . location” on the Aerial Photo. Id. at 56. As such, his

testimony is properly characterized as lay testimony that is not subject to any of Rule

26’s expert-disclosure requirements.

That same conclusion applies to Mr. McGinty’s testimony. He arrived at the

scene of the accident in its immediate aftermath, witnessed the post-accident location

of the trucks, interviewed the drivers about what had transpired, and personally

stepped off the road to measure it. Using the Aerial Photo, Mr. McGinty identified

various fixed landmarks at the Mine on the date of the accident: “where the crusher

would have been,” “where the shovel would have been,” and “where [he] went to

visibly see Ava Nelson and Dale Vincent’s haul trucks.” Id. at 212. Ms. Nelson then

asked him to identify “the general area where the accident happened.” Id. at 213

(emphasis added). In response, Mr. McGinty identified the accident site on the

Aerial Photo. Whether characterized as fact testimony or lay opinion testimony, Mr.

McGinty’s identification of the accident site on the Aerial Photo stemmed from a

combination of “personal knowledge” acquired through firsthand perceptions and “a

24 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 25

process of reasoning familiar in everyday life”—and, thus, was not the stuff of expert

testimony. FED. R. EVID. 701 advisory committee notes to 2000 amendment.

Accordingly, the district court did not abuse its discretion in overruling Mr.

Vincent’s objection. Far from “requir[ing] the special skill and knowledge of an

expert witness,” Mr. Steele’s and Mr. McGinty’s testimony that located the accident

on the Aerial Photo stayed well within “the realm of common experience”—

supported by personal observations, perceptions, and factual information gathered

during their respective investigations. James River Ins. Co. v. Rapid Funding, LLC,

658 F.3d 1207, 1214 (10th Cir. 2011) (quoting Randolph v. Collectramatic, Inc., 590

F.2d 844, 846 (10th Cir. 1979)); cf. United States v. Cristerna-Gonzalez, 962 F.3d

1253, 1259 (10th Cir. 2020) (“[A] law-enforcement officer’s testimony based on

knowledge derived from the investigation of the case at hand is typically regarded as

lay testimony.”).

b. Rule 26(a)(2)(C)

That said, even if these two men were testifying as non-retained experts, both

Mr. Steele and Mr. McGinty testified within the confines of their designations. In

Mr. Vincent’s view, however, the district court erred in permitting Mr. McGinty and

Mr. Steele to use the Aerial Photo in their testimony because their disclosures failed

to contemplate any such use. See Aplt.’s Opening Br. at 35.7 According to Mr.

7 Mr. Vincent does not argue that Mr. McGinty’s and Mr. Steele’s overall testimony regarding the location of the accident was undesignated or otherwise improper. 25 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 26

Vincent, Rule 26(a)(2)(C) required Ms. Nelson to “file a designation including . . .

the assertion that Mr. McGinty was going to stand up and try to confirm” Mr.

Steele’s identification of the accident site on the Aerial Photo. Id.

But, as we have indicated, Rule 26(a)(2)(C) is not so demanding. In offering

Mr. Steele and Mr. McGinty as non-retained experts, Ms. Nelson was required only

to put Mr. Vincent on notice as to the “subject matter on which [they were] expected

to present evidence” and to provide a “summary of the facts and opinions” to which

they would be expected to testify. FED. R. CIV. P. 26(a)(2)(C). A “summary” is

customarily defined as “[a]n abridgment” of a fuller accounting of material.

Summary, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, a Rule 26(a)(2)(C)

“disclosure is considerably less extensive than the report required by Rule

26(a)(2)(B).” FED. R. CIV. P. 26 advisory committee notes to 2010 amendment.

Indeed, the advisory notes caution against requiring “undue detail,” as witnesses

testifying under Rule 26(a)(2)(C) generally “have not been specially retained and

may not be as responsive to counsel as those who have.” Id.

And though only a few of our sister circuits appear to have encountered

challenges akin to Mr. Vincent’s—in published and unpublished8 decisions—they

seem largely to have faulted parties only when they have filed disclosures “so

8 We recognize that the unpublished decisions cited herein—even ones that panels of our circuit have issued—are not controlling authority or otherwise binding on us; however, we cite them as persuasive aids in resolving the material issues before us. See, e.g., Bear Creek Trail, LLC v. BOKF, N.A., 35 F.4th 1277, 1282 n.8 (10th Cir. 2022); United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015). 26 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 27

generic, unhelpful, and boilerplate [that] they could apply to . . . virtually any case.”

Torrez v. D. Las Vegas, Inc., 773 F. App’x 950, 951 (9th Cir. 2019) (unpublished)

(omission in original) (quoting magistrate judge’s order); see Merchant v. Corizon

Health, Inc., 993 F.3d 733, 738–39 (9th Cir. 2021) (concluding that a party did not

comply with Rule 26(a)(2)(C) where it “did not summarize the facts and opinions to

which [its] experts would testify as required by Rule 26(a)(2)(C)(ii)”); Cripe v.

Henkel Corp., 858 F.3d 1110, 1113 (7th Cir. 2017) (ruling that witness designations

of non-retained experts failed to comply with Rule 26 where the party offered no

summary of facts and opinions); Goncharenko v. Royal Caribbean Cruises, Ltd., 734

F. App’x 645, 646–47 (11th Cir. 2018) (unpublished) (per curiam) (concluding that

the district court did not abuse its discretion when striking appellant’s non-retained

expert witnesses where appellant’s “summary” merely stated that the witnesses

would testify that an accident caused appellant’s injuries). But see Amezcua v. Boon,

754 F. App’x 551, 553 (9th Cir. 2018) (unpublished) (concluding that appellants

violated Rule 26 when they “provided only a general overview of the topics upon

which each of their four non-retained expert witnesses would testify”).

With Rule 26’s provisions and committee notes in mind, and taking into

consideration the foregoing caselaw, we conclude that Mr. McGinty’s and Mr.

Steele’s trial designations contained sufficiently detailed “summar[ies] of the facts

and opinions to which [they] [were] expected to testify.” FED. R. CIV. P.

26(a)(2)(C)(ii). Mr. McGinty’s designation stated, in relevant part, that he would

“testify about his participation in the post-accident activities conducted by [Thunder

27 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 28

Basin Coal]” and “the operations of the haul trucks in the area where the subject

accident occurred.” Aplt.’s App., Vol. 1, at 86. Significantly, Mr. McGinty’s

designation provided notice that he may “base any opinion on his education,

experience and training, and rely on any relevant documents, articles, and exhibits to

illustrate or support his testimony.” Id. Mr. Steele’s designation similarly stated that

he would testify as to Thunder Basin Coal’s “investigation into the accident” and

“about his participation in the . . . investigation of [the accident].” Id. at 87.

Furthermore, his designation similarly advised that he may “rely on any relevant

documents, articles, and exhibits to illustrate or support his testimony.” Id. Both

designations also provided that Mr. Steele and Mr. McGinty would testify consistent

with their deposition testimony. See id. at 86–87.

True to their designations, Mr. Steele and Mr. McGinty testified at length at

trial on direct and cross examination about the investigation—including the location

of the crash. Both witnesses used the Aerial Photo—a relevant document and trial

exhibit that Mr. Vincent had in his possession for over a year before trial—to

illustrate their testimony about the location of the collision, as they perceived it from

their investigations. In short, their trial testimony, in our view, was clearly in line

with the summaries of their trial designations. Accordingly, we conclude that the

district court did not abuse its discretion in permitting Mr. McGinty and Mr. Steele to

use the Aerial Photo to support their testimony about the accident’s location.

28 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 29

c. Smith v. Ford Motor Company

Though we neither determine that the objected-to testimony qualifies as expert

testimony, nor that it exceeds the scope of its designations even if it was expert

testimony, we nevertheless find it prudent to address Mr. Vincent’s final argument as

to these two witnesses: that the district court erred under our decision in Smith v.

Ford Motor Co., in allowing the admission of “testimony” purportedly not within the

scope of the witnesses’ designations. See Aplt.’s Opening Br. at 38. We conclude

that this argument is without merit.

Drawing on the prior related work of the Third Circuit, we specified in Smith

four factors “which should be considered in determining whether a district court has

abused its discretion in excluding, or in [the case of Smith] allowing, testimony not

specified in the pretrial order”:

(1) the prejudice or surprise in fact of the [opposing] party . . ., (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in court, and (4) bad faith or willfulness in failing to comply with the court’s order.

Smith, 626 F.2d at 797 (quoting Meyers v. Pennypack Woods Home Ownership

Ass’n., 559 F.2d 894, 904–05 (3d Cir. 1977), abrogated on other grounds by

Goodman v. Lukens Steel Co., 777 F.2d 113, 120 (3d Cir. 1985)).

Mr. Vincent deems Smith to be applicable here by analogy—where the

objected-to expert testimony ostensibly exceeded the bounds of the witnesses’

29 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 30

designations. As to the prejudice component of the first factor, Mr. Vincent contends

that Mr. Steele’s and Mr. McGinty’s use of the Aerial Photo amounted to

undesignated testimony that prejudiced him; indeed, he goes so far as to claim that it

“devastat[ed]” his case. Aplt.’s Opening Br. at 39–40. However, we perceive any

prejudice to Mr. Vincent from the admission of this testimony to be limited, and the

court’s admission of it does not signal an abuse of discretion. First, the accident’s

location was principally relevant insofar as it spoke to the road’s width. As such, the

Aerial Photo supplemented—not supplanted—Mr. Steele and Mr. McGinty’s

otherwise unobjected-to testimony regarding the road’s width. Both witnesses

testified that the road’s width at the perceived accident site measured between 75 and

80 feet. Perhaps the Aerial Photo was “prejudicial”—but only in the sense that

“[v]irtually all relevant evidence is prejudicial.” United States v. Archuleta, 737 F.3d

1287, 1293 (10th Cir. 2013). Mr. Steele’s and Mr. McGinty’s first-hand testimony

about their road measurements—to which Mr. Vincent does not object—arguably

proved far more damaging to his case than the introduction of the Aerial Photo.

Indeed, it directly undermined his assertion that the road was patently too narrow for

Ms. Nelson to pass in her 27-foot-wide haul-truck.

And second, as the district court observed, “[t]he jury . . . still could have

found [that Ms. Nelson’s] actions did not meet th[e] [willful and wanton misconduct]

standard regardless of where the crash occurred.” Aplt.’s App., Vol. 4, at 132.

“While [Mr. Vincent’s] counsel portrayed the width and location as tantamount to a

30 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 31

finding of willful and wanton misconduct, the jury was not required to accept that

argument and apply the facts to the standard in that way.” Id.

As for the surprise component of the first factor, Mr. Vincent cannot credibly

argue that Ms. Nelson’s attempt to use the Aerial Photo in support of Mr. Steele’s

and Mr. McGinty’s testimony “surprise[d]” him. Smith, 626 F.2d at 797. Ms. Nelson

disclosed the Aerial Photo to Mr. Vincent over a year before trial. Moreover, she put

him on notice that both Mr. Steele and Mr. McGinty might look to “relevant

documents . . . to illustrate or support” their testimony about “the area where the

subject accident occurred” and their “investigation into the accident.” Aplt.’s App.,

Vol. 1, at 86–87. Based on the foregoing, then, we can hardly say that the district

court abused its discretion in determining that Mr. Vincent had not shown prejudice

or surprise.

Moreover, the second and third Smith factors also weigh against Mr. Vincent.

He “could have attempted to cure [any] prejudice by deposing” Mr. Steele and Mr.

McGinty about the Aerial Photo outside the presence of the jury or “sought a

continuance from the district court” to better prepare for cross-examination. Wern v.

Davis, 99 F.3d 1151, 1996 WL 621991, at *7 (10th Cir. Oct. 28, 1996)

(unpublished); see MacCuish v. United States, 844 F.2d 733, 737 (10th Cir. 1988)

(“[W]hile [the appellant] objected to [the witness’s] testimony, she made no motion

for a continuance at that time nor does she demonstrate other efforts to cure any

alleged prejudice, although she could have made such efforts.”); cf. Marino v. Otis

Eng’g Corp., 839 F.2d 1404, 1411 (10th Cir. 1988) (“Our cases show that when a

31 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 32

party requests a new trial on the basis of surprise testimony it must be able to show

surprise, prejudice, and an attempt to cure the prejudice such as a motion for a

continuance.”). With respect to Mr. Steele’s and Mr. McGinty’s use of the Aerial

Photo, Mr. Vincent has no answer for his failure to request a continuance.

Nor did the admission of Mr. Steele’s and Mr. McGinty’s testimony regarding

the Aerial Photo cause any disruption to “the orderly and efficient trial of the case.”

Smith, 626 F.2d at 797; see also Prager, 731 F.3d at 1058 (finding that “[n]either the

district court’s ruling that allowed . . . [the] challenged testimony, the cross

examination . . ., nor the testimony of the rebuttal witness caused any disruption” to

the trial). And as to the final Smith factor, Mr. Vincent fails to furnish any evidence

of bad faith in the admission of the Aerial Photo, itself. See Smith, 626 F.2d at 797.

In sum, we conclude that, even treating the challenged testimony as expert

testimony outside the confines of Mr. Steele and Mr. McGinty’s designations, the

district court—contrary to Mr. Vincent’s suggestion—did not abuse its discretion

under the Smith framework in permitting the testimony to be admitted.

2. Mr. Opfer’s Testimony

We now turn to Mr. Opfer’s testimony. There can be no reasonable dispute

that Mr. Opfer delivered expert testimony based on specialized knowledge of the

MineStar system when he used MineStar-generated data to place the crash location

on the Aerial Photo.9 However, like Mr. Steele’s and Mr. McGinty’s testimony, Mr.

9 Ms. Nelson’s argument that Mr. Opfer’s testimony applying the MineStar data to the Aerial Photo constituted lay testimony because GPS technology 32 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 33

Opfer’s testimony fell within the confines of his designation. Moreover, in our view,

the district court did not abuse its discretion in determining that Mr. Opfer’s trial

testimony was not at odds with his deposition testimony. Further, because Mr.

Vincent was neither surprised nor prejudiced by Mr. Opfer’s testimony regarding the

location of the crash, we cannot conclude that the district court acted outside “the

bounds of permissible choice.” Prager, 731 F.3d at 1054 (quoting McComb, 519

F.3d at 1053).

a. Mr. Opfer’s Testimony Was Consistent With His Designation

Echoing his arguments regarding Mr. Steele’s and Mr. McGinty’s testimony,

Mr. Vincent contends that “[Mr.] Opfer was not designated to use [the] MineStar data

to place the trucks at a physical location.” Aplt.’s Opening Br. at 36. He likewise

maintains that Mr. Opfer “had been designated to testify that the 2019 ‘digital mine

model’ that was the basis of his testimony ‘is the only background information that

[Thunder Basin Coal] c[ould] get.’” Id. (quoting Aplt.’s App., Vol. 1, at 228).

Therefore, Mr. Vincent urges us to conclude that Ms. Nelson’s failure to disclose the

extent of Mr. Opfer’s testimony—related to the Aerial Photo—violated Rule

26(a)(2)(C), and that the district court therefore abused its discretion in admitting his

testimony.

is commonplace and because Mr. Opfer personally observed Thunder Basin Coal’s engineering team transfer the MineStar GPS data onto the Aerial Photo is unavailing. The record is clear that mapping MineStar data onto the Aerial Photo required the Mine’s engineering department’s expertise. Therefore, Mr. Opfer’s opinion testimony was based on “scientific, technical, or other specialized knowledge” governed by Rule 702, not Rule 701. FED. R. EVID. 701(c). 33 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 34

However, we agree with the district court that Mr. Opfer’s testimony fell

within the scope of his designation. Mr. Opfer’s disclosure stated that he had

“experience and expertise regarding MineStar, its operation and use, and its

application in connection to the accident giving rise to th[e] lawsuit.” Aplt.’s App.,

Vol. 1, at 85 (emphasis added). It further provided that “Mr. Opfer is expected to

testify as to his education, training, and experience related to [Thunder Basin Coal’s]

use of the MineStar system,” consistent with his deposition testimony. Id.

Consistent with that designation, Mr. Opfer offered testimony about

MineStar’s “application . . . to the accident”: he took the MineStar data and applied it

to a photograph of the location where Mr. Steele and Mr. McGinty testified the

accident occurred. Because the width of the road was at issue, the parties

“unavoidably” had to determine the accident’s location. Id., Vol. 4, at 130.

Mindful of the advisory committee’s admonition that courts “must take care

against requiring undue detail” in non-retained expert disclosures, FED. R. CIV. P. 26

advisory committee notes to 2010 amendment, and guided by our deferential standard

of review, we find no abuse of discretion in the district court’s conclusion that:

[a]lthough the specific details of the testimony applying the MineStar data to the [Aerial Photo] were not included in Mr. Opfer’s designation or deposition, [Mr. Vincent] knew Mr. Opfer could testify to the location of the haul trucks, as they existed within the digital mine model. The fact that [Ms. Nelson] took this a step further [by having Mr. Opfer apply the MineStar data coordinates to the Aerial Photo by memory] did not take the testimony outside of the designation but fell within the description of Mr. Opfer’s expertise regarding the

34 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 35

Mine[S]tar data’s application in connection to the crash.

Aplt.’s App., Vol. 4, at 130.

b. Mr. Opfer’s Testimony Did Not Contradict His Deposition Testimony

Nor are we persuaded, under our deferential abuse-of-discretion standard, that

the district court erred in finding that Mr. Opfer’s trial testimony did not contradict

his deposition testimony. Mr. Vincent specifically takes issue with Mr. Opfer’s

deposition statement that “[t]he digital mine model is updated in realtime and that is

the only background information that we can get.” Id., Vol. 1, at 228. He claims that

this statement was inconsistent with Mr. Opfer’s trial testimony, which used the

Aerial Photo as background information.

As we have detailed, supra, Mr. Opfer’s statement (highlighted by Mr.

Vincent) arose during an extended discussion of the MineStar system, as Mr.

Vincent’s counsel attempted to clarify whether the digital mine model that Mr. Opfer

was using to offer his opinions depicted the configuration and circumstances of the

Mine on the date that Mr. Opfer secured the model—i.e., January 19, 2019—or on

the date of the haul-truck accident, October 13, 2013. Mr. Opfer explained that,

because the digital mine model was constantly updating, the digital mine model that

captured the configuration and circumstances of the Mine on the accident date,

October 13, no longer existed and, because his opinions regarding the GPS data

35 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 36

involved the use of a digital-mine-model background,10 the best he could do was to

use a version of the model captured around the time of the deposition (i.e., January

19).

Considering the broader context of Mr. Opfer’s statement, then, the district

court quite reasonably could determine that Mr. Opfer merely intended to convey that

the digital mine model he was using in his deposition was the only background

information that he could get from the MineStar system—given the ephemeral nature

of digital mine models—not that it was the only background information that he

could use in depicting the location of the accident. Therefore, there was no

contradiction between this deposition testimony of Mr. Opfer and his trial testimony,

which was predicated in part on background information that the Aerial Photo

supplied—that is, background information from a source other than the MineStar

system.11 Cf. Aplt.’s App., Vol. 4, at 132 (“Applying the location data to a

10 Recall that Mr. Opfer used in his testimony Gateway files containing “factual” GPS data from the date of the accident, Aplt.’s App., Vol. 1, at 228, and these files presented the data in part with reference to waypoints incorporated into the digital mine model, see id. at 222. 11 In a brief footnote, Mr. Vincent states that “[i]n asking Opfer to do work specifically for the case, Defendant also transformed him into a witness ‘retained or specially employed to provide expert testimony in the case,’ requiring a report under Rule 26(a)(2)(B).” Aplt.’s Opening Br. at 37 n. 32. Mr. Vincent provides no additional reasoning or legal authority for this contention, and we therefore decline to consider it on appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”); United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (“[I]t is the appellant’s responsibility to tie the salient facts, supported by specific record citation, to [his] 36 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 37

compatible aerial photograph does not mean Mr. Opfer’s deposition was misleading;

it means that he was simply not asked a question about applying the data to

background outside the [MineStar] System.”).

c. The District Court Did Not Abuse Its Discretion Under Smith

Mr. Vincent urges us to find that the admission of Mr. Opfer’s testimony

applying the MineStar data to the Aerial Photo failed to satisfy the requirements that

we set forth in Smith. But even assuming that Mr. Opfer’s testimony exceeded his

designation, we discern no abuse of discretion by the district court under Smith.

More specifically, Mr. Vincent has not shown that Mr. Opfer’s testimony ran afoul of

the first Smith factor by surprising or prejudicing him.

The district court limited its analysis to the first Smith factor, focusing

primarily on whether Mr. Opfer’s use of the Aerial Photo prejudiced Mr. Vincent; the

court concluded that it did not. We similarly confine our analysis to the first Smith

factor.

We are unconvinced that Mr. Opfer’s testimony was prejudicial in any

meaningful sense to Mr. Vincent. First of all, though counsel’s discovery of Mr.

Opfer’s ability to superimpose the MineStar GPS data onto the Aerial Photo occurred

mid-trial, the district court specifically took measures to minimize any prejudice by

holding a hearing outside the presence of the jury regarding the proposed evidence.

Cf. Smith, 629 F.2d at 798–99 (finding prejudice where defendant was granted only a

legal contentions.” (second alteration in original) (quoting Schaede v. Boeing Co., 72 F.3d 138, 1995 WL 736464, at *1 (10th Cir. Dec. 13, 1995) (unpublished))). 37 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 38

ten-minute recess to prepare cross-examination regarding the expert’s undisclosed

causation testimony). In that hearing, Mr. Vincent was given the opportunity to

cross-examine Mr. Opfer, and did so at length—challenging the reliability and

accuracy of superimposing the MineStar GPS data onto the Aerial Photo at trial.

Furthermore, while Mr. Opfer’s testimony did concern the important issue of

the accident’s location—as the district court rightly noted—this case was

distinguishable from Smith on the issue of prejudice because the expert there

provided the only testimony on the key issue (i.e., causation), whereas here “the jury

weighed testimony and argument from many sources” on the location issue. Aplt.’s

App., Vol. 4, at 132–33 (relying on our discussion of Smith in Greenwood v.

McDonough Power Equip., Inc., 731 F.2d 690, 697 (10th Cir. 1984)). More

specifically, other witnesses offered persuasive and consistent testimony regarding

the location of the accident and, relatedly, the width of the road at the site of the

accident—most notably, Mr. Steele and Mr. McGinty, who measured the road by

stepping it off in the minutes and hours immediately following the accident (Mr.

McGinty while the trucks were still in their post-accident resting locations).

Consequently, insofar as we assume that Mr. Opfer’s Aerial Photo testimony

exceeded the scope of his designated testimony, its prejudicial potential was limited

because there was ample other evidence concerning the same or similar subject

matter that the court admitted into evidence without objection by Mr. Vincent.

Unlike Smith, then, Mr. Opfer’s testimony was not the only testimony bearing on the

important issue of location.

38 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 39

Moreover, it is notable that both sides claimed that Mr. Opfer’s testimony

supported their theory regarding the location of the crash. See Aplt.’s App., Vol. 11,

at 129 (Trial Tr. Vol. X, Pl.’s Closing Arg., dated Jan. 27, 2020) (Mr. Vincent’s

counsel arguing in closing that Mr. Opfer’s testimony “conclusively located” the site

of the crash “in the narrows”); id. at 148 (Trial Tr. Vol. X, Def.’s Closing Arg., dated

Jan. 27, 2020) (Ms. Nelson’s counsel arguing in closing that Mr. Opfer’s testimony

“conclusively resolved” the accident’s location). This serves to undercut any claim

of prejudice. Cf. Moss v. Feldmeyer, 979 F.2d 1454, 1461 (10th Cir. 1992)

(“[Appellant], having relied on [the] autopsy to support her argument . . . cannot now

challenge . . . testimony predicated on . . . the autopsy on which she relied.”).

On the issue of surprise, Mr. Opfer’s challenged testimony did not cite any

new data or factual material, much less new subject matter; he simply “put [two]

pieces” of admissible evidence together, which were available to both parties.

Aplt.’s App., Vol. 4, at 133. Importantly, the facts and data underlying his

testimony—the Aerial Photo and the MineStar data—were disclosed more than a year

before trial, and Ms. Nelson disclosed Mr. Opfer as a non-retained expert witness six

months before trial. We agree with the district court: “Plaintiff’s counsel could have

requested Mr. Opfer to” apply the MineStar data to the Aerial Photo or,

“[a]lternatively, because they had access to this information for an ample time before

trial, they could have taken independent initiative to further understand and apply the

MineStar data.” Id. at 132. They did neither.

39 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 40

To be sure, we do not require that a party anticipate—and forestall—all

possible ways an expert could apply facts and data. But under these specific

circumstances—where the testimony at issue was both predictable and challenged at

a full hearing before being presented at trial—Mr. Vincent’s claim of surprise rings

hollow. Cf. Perry v. Winspur, 782 F.2d 893, 895 (10th Cir. 1986) (noting that expert

witness disclosures “should be construed liberally to embrace topics inherent in the

expected testimony described therein”); cf. also Stone v. First Wyo. Bank, 625 F.2d

332, 348 (10th Cir. 1978) (noting that the “pretrial order ‘should be liberally

construed to embrace all of the legal and factual theories inherent in the issues

defined therein’” (quoting Century Refin. Co. v. Hall, 316 F.2d 15, 20 (10th Cir.

1963))).

Thus, under the specific facts and circumstances of this case, we are not

persuaded that Mr. Vincent was so surprised or prejudiced by the inclusion of Mr.

Opfer’s Aerial Photo testimony as to place the district court’s decision outside “the

realm of . . . rationally available choices.” Prager, 731 F.3d at 1056 (quoting

McComb, 519 F.3d at 1053). And, importantly, in the absence of prejudice or

surprise, challenged testimony “does not run afoul of Smith’s directive,” and there is

no abuse of discretion. Prager, 731 F.3d at 1056; see also Greenwood, 731 F.2d at

697 (concluding that Smith does not apply where “there has been a failure to establish

that [the challenged] testimony was prejudicial”). Thus, we cannot conclude that the

district court rendered an “arbitrary, capricious, whimsical, or manifestly

unreasonable judgment,” Ralston, 275 F.3d at 968, in determining that Mr. Vincent

40 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 41

failed to show surprise or prejudice—defeating his challenge under Smith to Mr.

Opfer’s use of the Aerial Photo.

C. The District Court Did Not Abuse Its Discretion In Denying The Motion To Compel

Mr. Vincent next contends that the district court erred in various pretrial

rulings holding “that [Mr. Vincent] could not fully discover, introduce evidence of,

or impeach regarding the Mine’s financial interest” in the case. Aplt.’s Opening Br.

at 50. Reviewing for abuse of discretion, we reject this argument.

In denying Mr. Vincent’s motion to compel, the district court concluded that

the risk of confusion to the jury outweighed any probative value of the indemnity

agreement Mr. Vincent sought to introduce. Specifically, the court reasoned that

because this was a liability case in which the core issue was Ms. Nelson’s conduct—

not the Mine’s “involvement” or “tangential interest” as a non-party—“to allow the

evidence requested by Plaintiff [i.e., Mr. Vincent] would be to risk confusing the jury

on the issues, potentially delaying the process, and causing the jury to decide the case

on considerations other than liability.” Aplt.’s App., Vol. 2, at 128. Further, the

court reasoned that, because Ms. Nelson did not intend to claim impecunity or limited

means to pay a judgment—which the court would not have permitted in any event—

the evidence was not relevant for the purpose of rebutting that defense. See id. at

124–25.

In challenging the district court’s decision, Mr. Vincent underscores his belief

that the court wrongly precluded him from exposing the potential bias or motive of

41 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 42

former and current Mine employees that testified. But he neither identifies any

caselaw supporting the idea that the district court’s decision constituted an abuse of

discretion, nor engages with the court’s reasoning that admitting the indemnity

agreement would confuse the jury.12 See Aplt.’s Opening Br. at 50–51. We therefore

would be within the bounds of our own discretion not to consider this challenge

further. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015)

(“The first task of an appellant is to explain to us why the district court’s decision

was wrong.”); Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (“The

argument section of Plaintiffs’ opening brief does not challenge the court’s reasoning

on this point. We therefore do not address the matter.”); see also United States v.

Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996) (ruling that a litigant “waived this

issue by failing to make any argument or cite any authority to support his assertion”).

Regardless, we discern no abuse of discretion in the district court’s reasoning.

“The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the

jury, [and] undue delay.” FED. R. EVID. 403. And a decision to exclude evidence

12 Mr. Vincent does cite Jury Instruction No. 35, which instructed the jury to “carefully scrutinize all testimony given,” including considering “each witness’s . . . motive and state of mind.” Aplt.’s Opening Br. at 51 (citing Aplt.’s App., Vol. 2, at 174). But the question before us—the discoverability and admissibility of evidence—is an entirely distinct, antecedent inquiry from how the jury should assess the evidence that is ultimately discovered and admitted. Moreover, Mr. Vincent’s suggestion that evidence relevant to the jury’s deliberation must be admitted disregards the court’s fundamental obligation to weigh the probative value of evidence against potential prejudice. See FED. R. EVID. 403. 42 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 43

under Rule 403 will not be reversed absent a clear abuse of discretion. See, e.g.,

Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1526 (10th Cir. 1997);

see also Monfore v. Phillips, 778 F.3d 849, 854 (10th Cir. 2015) (noting that the

district court’s discretion in evidentiary rulings under Rule 403 is “particularly” wide

(quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008))).

Further, evidence regarding insurance coverage “is not admissible to prove whether

the person acted negligently or otherwise wrongfully.” FED. R. EVID. 411. While it

is true that such evidence may be admitted for other purposes, including proving a

witness’s bias or prejudice, see id., it must be regarded with particular caution, see

Burke v. Regalado, 935 F.3d 960, 1021 (10th Cir. 2019) (observing that Rule 411

“has its basis in the belief that [insurance] evidence is of questionable probative

value or relevance and is often prejudicial,” as well as “the feeling that knowledge of

the presence or absence of liability insurance would induce juries to decide cases on

improper grounds” (first quoting Charter v. Chleborad, 551 F.2d 246, 248 (8th Cir.

1977), and then quoting FED. R. EVID. 411 advisory committee notes to 1972

proposed rules)), and its probative value must be weighed against potential prejudice,

see Palmer v. Krueger, 897 F.2d 1529, 1538 (10th Cir. 1990).

Here, the district court cited the correct legal standard before weighing the

probative value of the evidence against the risk of confusing the issues, misleading

the jury, or unduly delaying the proceedings, and concluded that “even if the

evidence bears some relevance to the issues argued by Plaintiff [i.e., Mr. Vincent],

the value of the evidence for those purposes is outweighed by the prejudice it would

43 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 44

cause.” Aplt.’s App., Vol. 2, at 127. This analysis and ruling are well within the

permissible scope of the court’s discretion.

D. The District Court Did Not Err In Striking The Cotton Affidavit

Finally, we reject Mr. Vincent’s argument that the district court erred in

striking an affidavit by Mr. Cotton. In Mr. Vincent’s reply brief in support of his

motion for a new trial, he attached the affidavit of Mr. Cotton (the “Cotton Affidavit”

or “Affidavit”), a retired Special Forces Officer “with experience in plotting GPS

coordinates onto real world locations.” Aplt.’s Opening Br. at 48. Mr. Cotton had

not previously testified or been identified in the case. The Affidavit stated that the

MineStar location coordinates were not “standard” GPS coordinates and required

expertise “beyond the average commercial GPS user’s ability and resources.” Aplt.’s

App., Vol. 4, at 85–86. Importantly, it also stated that “data provided by Defendant

[i.e., Ms. Nelson] did not contain sufficient information” to plot the MineStar

location coordinates “on overhead imagery,” and it challenged the accuracy of Mr.

Opfer’s opinion as to the location of the crash. Id. at 87–88.

The district court struck the Affidavit from the record. See id. at 113–14. In

issuing its ruling, the district court said that Ms. Nelson’s arguments seeking to

transpose the MineStar data onto the Aerial Photo should have come as “no surprise”

to Mr. Vincent; accordingly, he should have presented in his motion many of the

arguments that he subsequently raised in the reply brief and in the Affidavit. Id. at

114. In short, the court reasoned that, if Mr. Vincent “wanted to rely on an affidavit

44 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 45

to challenge Ms. Nelson’s characterization or the accuracy of [the expert testimony in

question], . . . he should have done so in his initial motion.” Id.

Mr. Vincent now contends that because neither Wyoming’s Local Rules nor

the Federal Rules of Civil Procedure prohibit the submission of affidavits with reply

briefs, the district court erred in striking the Cotton Affidavit. Further, he urges that

the district court applied an erroneous standard in striking the Affidavit based on its

conclusion that Mr. Vincent could have and should have filed it with his initial

motion for a new trial.

However, Mr. Vincent’s arguments misapprehend the relevant Federal Rule, as

well as the breadth of the district court’s discretion. Federal Rule of Civil Procedure

59(c) provides that “[w]hen a motion for a new trial is based on affidavits, they must

be filed with the motion.” FED. R. CIV. P. 59(c) (emphasis added). That requirement

is squarely implicated here. The Cotton Affidavit challenged the reliability of Mr.

Opfer’s testimony and its underlying methodology—arguments that presented

ostensible bases for a new trial and had been discussed at length by the parties. The

district court did not err in declining to consider the Cotton Affidavit’s contentions

because Mr. Vincent was obliged to present the Affidavit in connection with his

initial motion.

To be sure, Rule 59(c) also provides that the “court may permit reply

affidavits.” Id. (emphasis added). But “may” does not mean “must.” Indeed, the

Supreme Court “has ‘repeatedly observed’ that ‘the word ‘may’ clearly connotes

discretion.’” Biden v. Texas, --- U.S. ----, 142 S. Ct. 2528, 2541 (2022) (quoting

45 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 46

Opati v. Republic of Sudan, --- U.S. ----, 140 S. Ct. 1601, 1609 (2020)); see United

States v. Bowden, 182 F.2d 251, 252 (10th Cir. 1950) (“The use of the word ‘may’ in

a statute will be construed as permissive and to vest discretionary power . . . .”).

Thus, while Rule 59(c) does not categorically prohibit the filing of affidavits with

reply briefs, the district court here was not stripped of its discretion to determine that

the Cotton Affidavit came too late and thus should not be considered. And, in our

view, the court did not abuse its discretion in reaching the conclusion that the

Affidavit came too late. For similar reasons, we reject Mr. Vincent’s argument under

Wyoming Local Rule 7.1(b)(2)(c) because that rule, like the federal rule, neither

requires nor disallows affidavits in support of a reply brief; therefore, the rule leaves

decisions regarding the allowance of affidavits in such circumstances to the

discretion of the district court, which it did not abuse here. 13

Moreover, we have routinely declined to find an abuse of discretion where, in

similar circumstances, district courts have determined that affidavits should have

been presented with earlier briefing. Cf. Bryson v. City of Okla. City, 627 F.3d 784,

788 (10th Cir. 2010) (finding no abuse of discretion where the district court declined

to consider two affidavits submitted with a motion to reconsider that could have been

presented in prior briefing); Price v. Philpot, 420 F.3d 1158, 1167–68 (10th Cir.

13 We note that Mr. Vincent failed to raise any argument with respect to Wyoming Local Rule 7.1(b)(2)(c) before the district court, and he does not argue under the plain-error rubric on appeal. Therefore, we are free to deem this argument to be effectively waived. See, e.g., Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1259–60 (10th Cir. 2018). In any event, as we note, the argument fails on the merits. 46 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 47

2005) (noting that “a [district] court may, in its discretion, elect not to consider a

delayed affidavit” and finding no abuse of discretion in the district court’s refusal to

consider evidence that was first filed as an attachment to the plaintiff’s motion to

reconsider); cf. also Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 n.3 (10th Cir.

1998) (declining to consider affidavits filed in connection with a FED. R. CIV. P.

60(b) motion because movant failed to allege that she could not obtain the affidavits

prior to entry of summary judgment).

Nor does any ostensible relevance of the Cotton Affidavit alter our analysis. A

district court may exercise its discretion to exclude otherwise relevant evidence based

on timeliness, redundancy, and other equitable considerations. See, e.g., Essence,

Inc. v. City of Fed. Heights, 285 F.3d 1272, 1288–89 (10th Cir. 2010) (holding that

the “district court’s exclusion of [a] late affidavit” that a party sought to use to

supplement its reply brief was not “a clear error of judgment” warranting reversal);

Hook v. Regents of Univ. of Cal., 394 F. App’x 522, 532 (10th Cir. 2010)

(unpublished) (concluding that “it was not an abuse of discretion for the district court

to exclude” an affidavit, notwithstanding its relevance).

The district court expressly considered Mr. Vincent’s argument that it may

permit an affidavit attached to a reply brief and that it should do so because of the

alleged misrepresentations made in Ms. Nelson’s response to the new trial motion. In

an exercise of its discretion, however, the court declined to consider the Cotton

Affidavit. We cannot say that the court abused its discretion in doing so; its decision

did not exceed the permissible bounds of its discretion.

47 Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 48

IV. CONCLUSION

Accordingly, for the foregoing reasons, we AFFIRM the district court’s