Blanke v. Alexander

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 5 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ANNETTE A. BLANKE, individually
and as mother and guardian of Jesse
Blanke and Krista Blanke, minors,

Plaintiff-Appellee,
v.
No. 96-5200
BILLY E. ALEXANDER, individually;
BUILDERS TRANSPORT, INC., a
foreign corporation; PLANET
INSURANCE COMPANY, a/k/a
RELIANCE NATIONAL INDEMNITY
COMPANY, a foreign corporation,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 94-C-1165-BU)

Daniel E. Holeman (Galen L. Brittingham and James N. Edmonds with him on the brief), of
Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, Oklahoma,
for Defendants-Appellants.

Mark S. Thetford (Cheryl L. Bisbee with him on the brief), of Stipe Law Firm, Muskogee,
Oklahoma, for Plaintiff-Appellee.
Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN, District Judge.*

HOLLOWAY, Circuit Judge.

Plaintiff-Appellee Annette Blanke (Annette),1 on behalf of herself and her minor

daughter, Krista Blanke (Krista), brought the present action in the United States District

Court for the Northern District of Oklahoma under diversity jurisdiction, alleging negligence

causing a December 7, 1994, collision. After a jury trial and verdict in favor of plaintiffs,

judgment was entered for them on September 26, 1995. Following the denial of defendants’

post-judgment motion for a new trial and an alternative motion for a remittitur, defendants

timely filed a notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

I. Background

This action arose out of a December 7, 1994, collision between a 1986 Ford Bronco

driven by Annette and a flatbed tractor-trailer rig owned by defendant, Builders Transport,

Inc., and driven by defendant, Billy Alexander. I Aplt. App. at 174-75; II Tr. at 192. At the

time of the collision, Annette was driving northbound along State Highway 167 near the Port

of Catoosa in northeast Oklahoma, with her minor children, Jesse and Krista. Prior to the

accident, Alexander had been instructed by his employer, Builders Transport, to drive the rig

Honorable Wesley E. Brown, Senior United States District Judge for the District of
*

Kansas, sitting by designation.

At the time of the incident giving rise to the causes of action, plaintiff-appellee was
1

known as Annette Blanke. In 1994, Blanke was remarried and changed her name to Annette
Atwood.

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to the Port of Catoosa to pick up a load.2 I Tr. at 73. Upon reaching his destination after

nightfall, pursuant to his instructions Alexander pulled the rig off Highway 167 onto a road

that led to an entrance to the Port of Catoosa. After exiting the highway, Alexander

discovered that the entrance was gated and closed and he stopped the rig. At that point no

part of the rig was situated on Highway 167. Id. at 78.

A passing driver who spotted Alexander contacted him by C.B. radio and advised him

of an open entrance north of Alexander’s location. Alexander surveyed his situation and

determined that there was insufficient room to permit him to turn the rig around and return

to the highway in a forward direction.3 Alexander decided that the only way to exit the

closed entrance was to back the rig straight across the highway and then head north toward

the open entrance. Id. at 82-84. As Alexander backed the rig across the highway, Annette

struck the trailer with the Bronco.4 Id. at 86. At the time of the collision, the rig was situated

2
The parties do not dispute the fact that Alexander was an employee of Builders
Transport and was acting within the scope of his employment at the time of the accident.
I Aplt. App. at 175. After the accident Builders Transport terminated Alexander pursuant
to company policy.
3
The flatbed trailer is approximately 48 feet in length, the cab is approximately 20 feet
in length, and the entire rig is approximately 68 feet in length. I Tr. at 78.
4
Alexander testified that he had turned on his emergency flashers prior to backing the
rig, I Tr. at 85, but eyewitness, Don Wolf, testified that to the best of his recollection the
trailer was unlit at the time of the collision. Id. at 108. Wolf, who was headed southbound
at the time of the collision, testified that the rig looked like a shadow or an outline in the road
and that he had to swerve his vehicle around the back of the rig in order to avoid striking it.
Id. at 106 -09. He further testified that had the rig been blocking his lane, he probably would
have struck it. Id. at 109. Moreover, Annette testified that she does not recall street lights
being in place on the portion of the highway at which the accident occurred. II Tr. at 192-93.

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approximately halfway across the highway, blocking the northbound lane. Id. at 86-87.

Annette also testified that although it was dark, nothing was obstructing her view prior to the

collision. However, she does not recall seeing the rig prior to impact.5 II Tr. at 217.

As a result of the accident, Annette suffered an open Grade II fracture of her right

femur and a fracture of her right ankle, the medial malleolus on the right side, III Aplt. App.

419-20, as well as extensive bruises. II Tr. at 202. Her daughter, Krista, complained of pain

in her hand and back. Id. at 170, 215. Additionally, Krista testified that she was sad after

the accident and scared that her mother and brother were going to die. Id. at 171.

Following the December 7, 1994, collision, Annette filed the present action on her

own behalf and for her daughter Krista against defendants in the district court. I Aplt. App.

at 1. In addition to naming Alexander and his employer, Builders Transport, as defendants

Annette also named Planet Insurance Company, which is the excess liability insurance carrier

for Builders Transport that had a contract of liability insurance covering Builders in effect

on the day of the collision. Id. at 1, 4-5, 175; Aplt. Brief at 19. The jury found for plaintiffs

and awarded $500,000 to Annette Blanke and $17,000 for her daughter, Krista. I Aplt. App.

Wolf testified that there are no “pole lights” at that location. I Tr. at 111.
5
The evidence presented at trial reveals that Annette has several physical conditions
which could affect or impair her vision. II Tr. at 178-85. Since 1980 her driver’s licence has
contained a restriction which permits daylight driving only and requires corrective lenses.
Id. at 185, 222. Although Annette testified that she did not really realize she was not
supposed to drive at all at night prior to the December 1994 collision, id. at 222, the evidence
revealed that she was pulled over and cited in March 1994 for a violation of this nighttime
driving restriction. Id. at 226-29.

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at 238-42. However, the jury also found Annette ten percent negligent and the district court

accordingly reduced her award to $450,000. Id. at 239; II Aplt. App. at 243.

Defendants-appellants’ appeal presents several claims of error: (1) the district judge

erred in permitting the jury to be informed of the presence of liability insurance coverage and

in referring to the insurer Planet in his instructions; (2) the judge erred in submitting the

permanent injury claim to the jury; (3) the judge failed to instruct on cause versus condition

as requested; (4) the verdict is not supported by the record; and (5) the court erred in

overruling defendants’ motions for a directed verdict and for a new trial and defendants’

alternative motion for a remittitur. Brief in Chief of Appellants at 2. Finding no reversible

error, we affirm.

II. Analysis

Since the present case is grounded on diversity jurisdiction, we first note that

Oklahoma provides the substantive rules of law which govern this action. “A federal court

sitting in diversity must apply the law of the forum state, in this case Oklahoma, and thus

must ascertain and apply Oklahoma law with the objective that the result obtained in the

federal court should be the result that would be reached in an Oklahoma court.” Wood v. Eli

Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). In this respect, we are obligated to apply

Oklahoma law as “announced by that state’s highest court.” Hays v. Jackson National Life

Ins. Co., 105 F.3d 583, 587 (10th Cir.1997). Moreover, a federal district court’s state-law

determinations are entitled to no deference and are reviewed de novo. Salve Regina College

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v. Russell, 499 U.S. 225, 239-40 (1991); Wood, 38 F.3d at 512.

A. References to Liability Insurance

We first address whether the district judge erred in permitting the jury to hear

references to the insurer and about the existence of liability insurance coverage, and in

referring to Planet Insurance Company in his instructions in light of 47 O.S. 1991 § 169

which permits naming a motor carrier’s insurer and suing it directly.6

Prior to trial, defendants filed a motion in limine seeking to exclude reference to

defendant, Planet Insurance, as well as to the existence of insurance coverage on the grounds

of relevance and prejudice. I Aplt. App. at 13-22. The district court, in a written order,

denied that part of defendants’ motion seeking to withhold the name of the insurance

company and the existence of liability insurance coverage. Citing Oklahoma precedent, the

district judge reasoned that since an insurance company is directly liable under § 169,7 the

6
Effective November 1, 1995, the Oklahoma Motor Carrier Act was amended, and
§ 169 at issue here is now recodified in 47 O.S. Supp. 1996 § 230.30. However, since the
trial occurred and judgment was entered in this case prior to the effective date of the
amendment, we will focus exclusively on § 169 as it was written prior to the amendment.
See 47 O.S. 1991 § 169.
7
Section 169 requires motor carriers to file a liability insurance policy with the
Oklahoma Corporation Commission covering public liability and property damage. Section
169 provides further that “such liability and property damage insurance policy or bond shall
bind the obligor thereunder to make compensation for injuries to, or death of, persons, and
loss or damage to property, resulting from the operation of any such motor carrier for which
such carrier is legally liable.”

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general rule against references to liability insurance does not apply. I Aplt. App. at 186-89.8

8
The district judge’s order denying the defendants’ motion for a new trial and
alternative motion for a remittitur stated in part:

In the instant case, Plaintiffs properly joined Planet Insurance Company a/k/a
Reliance National Indemnity Company as a Defendant pursuant to section 169.
Under [Oklahoma Transportation Co. v. Claiborn, 434 P.2d 299 (Okla. 1967)],
the Court concludes that the mere identification of Planet Insurance Company
a/k/a Reliance National Indemnity Company as a Defendant in the case, in and
of itself, does not constitute reversible error. Despite Defendants’ arguments
to the contrary, the identification of Planet Insurance Company was not
prejudicial under the facts and circumstances of this case. In the Court’s view,
Defendant did receive a fair trial of the issues. The Court notes that the jurors
were never advised of the insurance policy limits. Moreover, the Court notes
that Defendants also injected the reference to insurance in this case by
informing the jurors that Planet Insurance Company a/k/a Reliance National
Indemnity Company was the liability insurance carrier for Defendant, Builders
Transport, Inc.
The Court further concludes that it did not abuse its discretion in failing
to decline identifying Planet Insurance Company a/k/a Reliance National
Indemnity Company as a Defendant pursuant to Rule 403. As stated in
Claiborn, the Oklahoma Legislature, by authorizing joinder of the insurance
carrier under section 169, has determined that knowledge the motor carrier has
liability insurance is not prejudicial. Id. Because Planet Insurance Company
a/k/a Reliance National Indemnity Company was a proper party to this action,
the Court concludes that the mere identification of Planet Insurance Company
a/k/a Reliance National Indemnity Company as a Defendant was not
prejudicial error.
The Court notes that Defendants argue in their amended reply brief that
even if the identification of Planet Insurance Company a/k/a Reliance National
Indemnity Company were permitted in cases involving motor carriers and
liability insurance carriers under section 169, it should not apply in a case
under section 169 which also involves an individual truck driver. The Court,
however, declines to address this argument. This argument was not raised by
Defendants in their motion in limine or during trial. Moreover, it was not
raised by Defendants until their amended reply brief.

II Aplt. App. 385-86.

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 Reference to defendant Planet Insurance was made on several occasions during trial:

(1) when the case first came on for trial, the district judge announced the case number and

identified all parties by name, including Planet Insurance, I Tr. at 3; (2) during voir dire of

the jury panel, the district judge asked members of the panel whether any of them, or any of

their close friends or relatives had “ever been employed by the Planet Insurance Company

also known as Reliance Insurance Company,” id. at 9; (3) during plaintiffs’ counsel’s

voir dire of the jury panel, plaintiffs’ counsel inquired,

One thing I want to ask. There is -- Mr. Alexander is not here, the
representative from Planet Insurance is not here. Are you going to hold that
against my client that they didn’t show up? I don’t know what it shows to you,
it might show that they have confidence. I don’t know. But are you going to
attribute anything to the fact that they didn’t show up here today against my
client?

All right.

(Id. at 28); (4) during plaintiffs’ counsel’s opening statement he said that Annette

remembers seeing a couple of sets of car lights, and that’s all she remembers.
She doesn’t remember anything else because what she didn’t know was, just
minutes before, while she was dropping the kids off, Mr. Billy Alexander had
driven a Builders Transport, insured by the Defendant Planet Insurance, into
this southern entrance.

Id. at 50; and (5) over defendants’ objection, the name of “Planet Insurance Company a/k/a

Reliance National Indemnity Company” as a defendant appeared in the case caption on the

title page of the jury instructions as well as on the verdict forms, and a copy of the

instructions was given to the jury for purposes of deliberations. I Aplt. App. at 197;

Response Brief of Appellees, Ex. 1. However, no mention was made either of Planet

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Insurance or liability coverage in the district court’s substantive instructions on the law.

I Aplt. App. at 198-237.

Defendants strenuously argue that prejudicial error occurred when the district judge

permitted the references to the existence of liability insurance and Planet Insurance

Company’s presence as a defendant. Brief in Chief of Appellants at 13-27; Reply Brief of

Appellants at 3-17. Defendants say that federal procedural law applies in this diversity case,

citing Gilbert v. Cosco, Inc., 989 F.2d 399, 402 n.2 (10th Cir. 1993) (“When our jurisdiction

is based upon diversity, we apply state substantive law and federal procedural law. See

Hanna v. Plumer, 380 U.S. 460, 471-74 (1965).”). Defendants contend that exclusion of

evidence of insurance and of the presence of Planet as a defendant was mandated by

Fed. R. Evid. 403 (evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, etc.), under which

balancing was critical and which rule the judge did not apply, and that such evidence should

have been excluded pursuant to Rule 403 and Federal Rules of Evidence 411 (evidence that

person was or was not insured not admissible on issue whether the person acted negligently

or otherwise wrongfully), 401 (relevant evidence means evidence having tendency to make

existence of fact of consequence more probable or less probable), and 402 (evidence which

is not relevant is not admissible). Brief in Chief of Appellants at 20, 23-24; Reply Brief of

Appellants at 4.

Defendants argue that the judge erred by applying an “absolute or per se interpretation

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of Section 169" as justifying its refusal to engage in the balancing required by Rule 403.

Brief in Chief of Appellants at 23 (emphasis added). Further, defendants maintain that the

judge never balanced probative value with prejudicial effect as to the individual defendant

Alexander even though the insurance evidence had no probative value and the insurance

carrier stipulated it would be bound by the verdict. Id. at 26.

We are not persuaded by the arguments and precedents relied on by defendants. We

agree that federal procedural law applies in this diversity litigation. Here, however, it is

outweighed by state substantive law which must be respected. The carrier, Builders

Transport, was required by Oklahoma law, 47 O.S. 1991 § 169, to file a liability policy with

the Corporation Commission. The direct action was authorized by state substantive law and

joinder of the carrier’s insurer in the personal injury action is proper. And “joinder of the

motor carrier and its insurer being proper in this case, the general rule against references to

liability insurance does not apply.” Be-Mac Transport Co. v. Lairmore, 129 P.2d 192, 194,

196 (Okla. 1942). In construing § 169, the Oklahoma Court has observed that Oklahoma law

creates “direct liability of the insurance company to the injured person because the insurer

‘is liable for the injuries resulting from the operations of the motor carrier, not by reason of

its bond [or policy], but by reason of the statute.’” Daigle v. Hamilton, 782 P.2d 1379, 1381

(Okla. 1989) (citing Jacobsen v. Howard, 23 P.2d 185, 187 (Okla. 1933)).

Defendants rely on Tidmore v. Fullman, 646 P.2d 1278 (Okla. 1982), in support of

their argument that the district court erred in failing to prevent references to Planet Insurance

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and the fact of liability coverage from the jury. In Tidmore, the plaintiff chose to join an

uninsured motorist and the plaintiff’s insurance company as defendants to litigate all issues

in one action. Id. at 1280-81. The plaintiff sought to advise the jury of the name of the

underinsured defendant’s insurer and the terms of the defendant’s policy, as well as the name

of the plaintiff’s insurer and the terms of that policy. Id. at 1282. However, the underinsured

defendant’s insurer was not a party to the action and there was no right of the plaintiff to

maintain a suit against the underinsured defendant’s insurer. Id. The Oklahoma Supreme

Court held that although plaintiff’s insurer was a proper party, “evidence as to the names of

both insurers and the terms of their respective policies should be withheld from the jury.”

Id. at 1283. In Tidmore, the Court reasoned that “where the fact of liability insurance

coverage is brought before the jury unnecessarily or forcefully where liability insurance

coverage is not legislatively mandated and where the insurer has no direct liability to the

claimant, such jury revelations are, as a matter of law, prejudicial, and if the insured is or

might have been harmed thereby, reversible error.” Id. at 1281. However, an “insurer under

a compulsory insurance policy may be joined as a defendant with the insured in an action by

an injured third person, generally, on the theory that under statutes requiring and controlling

compulsory insurance, a direct or joint right is created in favor of the injured person against

both the insured and the insurer.” Id.

Thus, Tidmore is not inconsistent with the trial judge’s actions here. Unlike Tidmore,

in which liability insurance was not expressly mandated by the legislature and in which the

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plaintiff was suing his own insurance carrier, id. at 1281-82, liability insurance coverage was

legislatively mandated here by § 169 and Annette properly joined Builders Transport’s

insurer, Planet Insurance, as a defendant.9

One of the clearest pronouncements of Oklahoma law on this issue is found in Okla.

Trans. Co. v. Claiborn, 434 P.2d 299, 303 (Okla. 1967):

The Legislature, by authorizing the joinder as party defendants a motor carrier
and its insurance carrier, in effect determined that when the liability insurance
policy or bond is filed and the certificate of convenience or necessity is issued,
no prejudice results from such joinder. Stated in another way, the Legislature
by authorizing the joinder of the insurance carrier, has in effect determined that
knowledge of insurance liability is not prejudicial to the right of the motor
carrier or to its insurance carrier.

In his order denying defendants’ motion for a new trial or for remittitur, the district

judge explained his reasoning, stating that

the mere identification of Planet Insurance Company a/k/a Reliance National
Indemnity Company as a Defendant in the case, in and of itself, does not
constitute reversible error. Despite Defendants’ arguments to the contrary, the
identification of Planet Insurance Company was not prejudicial under the facts
and circumstances of this case. In the Court’s view, Defendant did receive a
fair trial of the issues. The Court notes that the jurors were never advised of
the insurance policy limits.

II Aplt. App. at 385.

We are not persuaded by defendants’ arguments based on the federal procedural rules

9
In another case where the plaintiff brought suit against a motor carrier and its insurer,
the Oklahoma Supreme Court in Hiebert v. Jones, 800 P.2d 249 (Okla. 1990), held that
Tidmore is not controlling. There, the court stated that “the statutorily mandated liability
insurance policy of a motor carrier creates a direct and joint liability as between the motor
carrier and the insurance carrier. . . . Present case is not controlled by Tidmore . . . .” Id.

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which we have noted, Fed. R. Evid. 401, 402, 403 and 411. Rule 411 contains a general

prohibition against admission of evidence concerning liability insurance, with exceptions that

are not relevant here. The general rule is that

Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully.

The admissibility of evidence in diversity cases in federal court is generally governed

by federal law. Romine v. Parman, 831 F.2d 944 (10th Cir. 1987). Nevertheless, it is well

recognized that Congress did not intend the procedural rules to preempt the so-called

“substantive” state rules of evidence, such as the parole evidence rule, the collateral source

rule, or the statute of frauds; although the application of these rules will affect the

admissibility of some evidence, they in reality serve substantive state policies regulating

private transactions. McInnis v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir. 1985); 19 Wright,

Miller & Cooper, Federal Practice and Procedure § 4512 at 422-24. We have expressed the

view that in a diversity action, when there is a conflict between Fed. R. Evid. 407 excluding

evidence of subsequent remedial measures, except where offered for specified limited

purposes, and a contrary state rule repudiating the rule of exclusion, the state rule controls;

the question of exclusion of subsequent remedial measures is a matter of state policy. Moe

v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 932 (10th Cir. 1984).

We are convinced likewise that here state policy expressed in the Oklahoma statute

and interpretations of it by the Oklahoma Supreme Court is involved. Section 169 has been

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recognized as creating a right to a joint action by an injured party against a motor carrier and

its insurer, Be-Mac Transport Co. v. Lairmore, 129 P.2d at 194, and in such actions the

general rule against references to liability insurance does not apply. Id. at 196. We hold that

the judge’s actions permitting and making references to Planet Insurance were not reversible

error but were in conformity with the state’s policy permitting the plaintiffs to proceed as

they did.10

B. Jury Instructions

We now turn to defendants’ argument that the court improperly instructed the jury.

In a diversity case, the substance of a jury instruction is a matter of state law, but the grant

or denial of a tendered instruction is governed by federal law. Wolfgang v. Mid-America

Motorsports, Inc., 111 F.3d 1515, 1525 (10th Cir. 1997). Although we review the district

court’s refusal to give a particular instruction for abuse of discretion, id., the “ultimate

question of whether the jury was properly instructed is a question of law which we review

de novo.” Id. at 1526. Furthermore, we “must examine the instructions as a whole to

determine if they sufficiently cover the issues in the case and focus on the facts presented by

the evidence.” United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert. denied, 116 S. Ct.

10
Defendant-appellant Alexander contends that the references to insurance prejudiced
his individual right to a fair trial. We note that the district judge declined to address this
argument since it was raised for the first time in Alexander’s amended reply brief on the
defendants’ motion for a new trial and alternative motion for a remittitur and had not been
raised in their motion in limine or during trial. II Aplt. App. 386. We feel that the judge did
not abuse his discretion in declining to consider the matter presented so late in the
proceedings below.

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247 (1995); Wolfgang, 111 F.3d at 1525. See also York v. AT&T, 95 F.3d 948, 953

(10th Cir. 1996) (“we review de novo the question whether the court’s instructions,

considered as a whole, properly state the applicable law and focus the jury on the relevant

inquiry”).

1. Permanent Injury

Defendants argue that the district court erred in authorizing the jury to consider

permanent injury in fixing damages. At the close of plaintiffs’ evidence, defendants moved

for a directed verdict on the issue of permanent injury, physical impairment and

disfigurement, as to both plaintiffs, arguing that insufficient evidence had been presented

under Oklahoma law to permit the issue to go to the jury. II Tr. at 234. The judge deferred

ruling on the matter for further consideration at the jury instruction conference. Id. at 236.

At the conference, defendants again objected to the inclusion of a permanent injury

instruction. Id. at 246-47. The judge overruled the objection, resting his decision on the

testimony of Annette’s medical expert, Dr. Mark Hayes, an orthopedic surgeon. The judge

noted that he had not told the jury “one way or the other whether the injuries are permanent.”

Id. at 248. The judge found persuasive Dr. Hayes’ testimony that there was a little bit of

shortening of Annette’s femur at the fracture site. The judge also based his decision on Dr.

Hayes’ testimony to the effect that there exists a potential for post-traumatic arthritis, as well

as soreness and stiffness in the knee because of the fracture, along with other potential

difficulties. The judge concluded by stating that “although it’s not a lot of evidence, there

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is some evidence in the record for the jury to make that consideration.” Id.

The permanent injury question was included along with eight other factors to be

considered in awarding any damages to Annette.11 Since the jury returned a general verdict

on damages, the record provides us with no means of determining upon which of the factors

the jury based its award for Annette. Thus, if the permanent injury claim was improperly

included, we must reverse the award of damages. Brown v. Wal-Mart Stores, Inc., 11 F.3d

1559, 1566-67 (10th Cir. 1993) (when one of two or more issues is erroneously submitted

to a jury, we must reverse “if it cannot be determined whether the jury relied on the improper

ground”) (quoting Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1299 (10th Cir. 1989)).

11
The judge charged the jury that in fixing the amount of an award for Annette Blanke
it might consider the following elements:

A. Her physical pain and suffering, past and future;
B. Her mental pain and suffering, past and future;
C. Her age;
D. Her physical condition immediately before and after the accident;
E. The nature and extent of her injuries;
F. Whether the injuries are permanent;
G. The physical impairment;
H. The disfigurement;
I. The reasonable expenses of the necessary medical care, treatment and
services, past and future.

In addition, you may also consider the following element:

J. The reasonable expenses of the necessary medical care, treatment and
services she has incurred in behalf of Krista Blanke.

I Aplt. App. at 231-32.

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 Under Oklahoma law before a court may authorize the jury to consider a permanent

injury in fixing damages, there normally must be evidence by an expert witness that, with

reasonable medical certainty, the injury is permanent. Maples v. Bryce, 429 P.2d 741 (Okla.

1967) (syllabus 1); see also Tom P. McDermott, Inc. v. Birks, 395 P.2d 575, 576 (Okla.

1964) (where proof of injury is subjective, in order to warrant damages for permanent injury,

there must be expert evidence that the injury, with reasonable certainty, is permanent).

However, if the injury is objective, and it is “plainly apparent from the nature of the injury,”

that the injured person must of necessity undergo pain and suffering in the future, the jury

may infer that fact from proof of such an injury alone. Edwards v. Chandler, 308 P.2d 295,

297 (Okla. 1957); Reed, 820 P.2d at 448-449; Maples, 429 P.2d at 743.

Here Dr. Hayes testified that he is an orthopedic surgeon with board certification,

reciting his education and training. III Aplt. App. at 415. He did an independent medical

examination of Annette Blanke, reviewed her medical records and x-rays, gave her a physical

examination, and took a history from her. She said she had been involved in an automobile

accident on December 6, 1994, and as a result of that accident she had a fracture of her right

thigh bone and ankle. Id. at 419-20. The records showed that she had an open Grade II

fracture in which the bones are sticking out through the skin and exposed to the air. Annette

was hospitalized on December 6 for nine days, went home, and then Dr. Trussell followed

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her case in an orthopedic clinic. Id. at 420.12

Dr. Hayes testified about Plaintiff’s Exhibit I-B, an x-ray dated December 13, 1994,

bearing Annette’s name. It showed a K wire which held the ankle fracture in place

temporarily. The surgeon said the femur fracture would be painful. Id. at 426-27. Dr. Hayes

discussed Plaintiff’s Exhibit I-C, a radiograph from Hillcrest Hospital represented to be of

Annette Blanke’s femur fracture. The doctor said the x-ray “looks like the x-ray of a

mid-shaft femur fracture with one fragment of bone displaced away from the two main

fragments.” Id. at 424. Among other things the doctor said:

Basically it shows a mid-shaft femur fracture with one fragment of bone out,
small fragment of bone, probably two centimeters in length, slightly displaced.
There is a little bit of shortening at the fracture site. She’s got a traction bar
around it, it’s got a strap. The alignment overall looks pretty good.

Id. at 426.

Dr. Hayes testified that Plaintiff’s Exhibit I-E shows a femur with an intramedullary

nail going down the middle of the femur bone. There is a locking screw proximally which

is in the top part of the femur. Id. at 428-29. The procedure for putting in the nail is that the

patient is put to sleep. A pin has to be placed across the tibia, the bone just below the knee.

The surgeon drills a pin across the tibia, and then he puts a clamp on it to lock it, and then

12
The record testimony from the deposition of Dr. Hayes states that Annette told the
doctor the accident was on December 6, 1994, and that she was hospitalized on that date, see
II Tr. 419-20. However, these statements concerning the date must have been inadvertent
errors. Elsewhere the record establishes the date of the accident as December 7, 1994. See
Agreed Pretrial Conference Order Stipulations, I Aplt. App. at 174.

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he pulls traction on it with this pin in the bone.

An awl is used to make a hole in the bone and a drill is used to drill into the bone.

Reamers, drills of different sizes, are used to drill all the way down the femur to make a

channel for the rod to go through. The rod is hammered down through the femur and a screw

is put in to keep the bones from rotating as they are healing. Id. at 430.

For the ankle, a pin and screw are used to pull the two fragments together. In the

future a small potential exists for Annette to develop a post-traumatic arthritis, which would

basically be injury which has occurred to the ankle in this region. If that occurs, it would

develop within the first two years. Id. at 431-32. Dr. Hayes recommended that the nail be

removed, which is routinely done about a year or two later. Dr. Hayes said that within a

reasonable medical probability, Annette will have some discomfort after the hardware is

removed which should last no more than two or three months and then resolve. Id. at 433-34.

The removal procedure costs for removing the hardware would be the surgeon’s fee, the

hospital charge and the anesthesia, which should all cost probably $5,000. Id. at 435.

On cross-examination Dr. Hayes said he had only one visit with Annette Blanke on

June 2, 1995. He said that the femur fracture was well healed and had excellent alignment

of the bone shown in the radiographs. The ankle fracture was also well healed without

limitation of motion. Id. at 441-42.

We agree with the trial judge that the evidence as a whole was sufficient for the

permanent injury factor to be included in the instructions to the jury. Along with other

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evidence, there was testimony about the mid-shaft fracture with one small fragment of bone

out, probably two centimeters in length, slightly displaced, and with a little bit of shortening

at the fracture site. Id. at 426. We feel that the proof met the minimum requirements

governing submission of a permanent injury instruction under Oklahoma law. In Tom P.

McDermott, Inc. v. Birks, 395 P.2d 575 (Okla. 1964), the Oklahoma Court stated:

‘It is not necessary that the evidence adduced to prove an injury is permanent
be so positive and conclusive as to establish that fact beyond any shadow of
doubt before it can be submitted to a jury. It is sufficient if it reasonably tends
to establish such fact. . . .’

Id. at 577 (quoting Kansas City Southern Railway Company v. Norwood, 367 P.2d 722

(Okla. 1961)).

2. Cause Versus Condition

Defendants also requested a cause versus condition instruction, which the district

court denied. I Aplt. App. at 126; II Tr. at 250-52. Defendants essentially argue that the

actual cause of the collision was not Alexander’s backing of the rig across the highway at

night, but rather that the collision was proximately caused by Annette’s vision problems and

her driving at night in violation of the daytime restriction on her driver’s license.13

Defendants say that Annette was temporarily blinded by the headlights of a passing vehicle

immediately before she struck defendants’ rig. Therefore defendants contend that a jury

question existed on the issue whether the presence of the rig in Annette’s lane of traffic was

Annette testified that her driver’s license had restrictions for “daylight driving only
13

and glasses.” II Tr. at 185.

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a cause of the collision or a mere condition which allowed the collision to occur, requiring

their proposed cause versus condition charge. Defendants argue that the district court

erroneously concluded that the cause versus condition principle is limited to the facts set out

in Thur v. Dunkley, 474 P.2d 403 (Okla. 1970), which involved a collision between a

motorist and parked cars on a public roadway.

We note that in a post-trial order, the trial judge held that he did not err in refusing to

submit defendants’ proposed cause versus condition instruction since it gave the “Direct

Cause - Defined” instruction found in the Oklahoma Uniform Jury Instructions - Civil

(Second Edition). II Aplt. App. at 390-91. The judge instructed the jury that:

Direct cause, as used in these instructions, means a cause which, in a natural
and continuous sequence, produces injury and without which the injury would
not have happened. For negligence to be a direct cause it is necessary that
some injury to persons in the plaintiffs’ situation must have been a reasonably
foreseeable result of negligence.

I Aplt. App. at 220.

The district judge’s order denying a new trial and remittitur stated that:

The Oklahoma Supreme Court has stated that the distinction between a cause
and a condition is the element of foreseeability. Long v. Ponca City Hospital,
Inc., 593 P.2d 1081, 1085 (Okla. 1979). ‘Foreseeability is an essential element
of proximate cause . . . and it is the standard by which the proximate cause, as
distinguished from the existence of a mere condition, is to be tested.’ Atherton
v. Devine, 602 P.2d 634, 636 (Okla. 1979); . . . .

II Aplt. App. at 391. The judge held that the jury’s verdicts for the plaintiffs, in light of the

direct cause instruction, shows that the jury had to conclude that the injuries of plaintiffs

were a reasonably foreseeable result of defendant Alexander’s negligence. They accordingly

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found that his negligence was “the proximate cause of Plaintiffs’ injuries and not a mere

condition.” Id. Since the court had given its “Direct Cause - Defined” instruction, the judge

said that a new trial was not warranted because of failure to give the defendants’ “condition

versus cause” instruction.

We agree with the trial judge’s conclusions. The Oklahoma Supreme Court in

Tomlinson v. Love’s Country Stores, Inc., 854 P.2d 910, 915-16 (Okla. 1993), stated:

Proximate cause must be the efficient cause that sets in motion the chain of
circumstances leading to an injury; if the negligence complained of merely
furnishes a condition by which the injury was made possible and a subsequent
independent act caused the injury, the existence of such condition is not the
proximate cause of the injury. “Foreseeability is an essential element of
proximate cause . . ., and it is the standard by which proximate cause, as
distinguished from the existence of a mere condition, is to be tested.”
Atherton v. Devine, 602 P.2d 634, 636 (Okla. 1979). The distinction between
a cause and a condition is the element of foreseeability. . . . A condition also
begins with the breach of a duty of care. With a condition, however, the
subsequent injury was neither foreseeable nor reasonably anticipated as the
probable result of the breach.

Similarly, the Oklahoma Supreme Court in Thur held that “if the negligence complained of

merely furnishes a condition by which the injury was made possible and a subsequent

independent act caused the injury, the existence of such condition is not the proximate cause

of the injury.” Thur, 474 P.2d at 405.

Defendants argue that Annette had serious vision problems and that she was driving

at night in violation of her daytime driving restriction. They say that her negligence in

operating her vehicle at night thus superseded any negligence on the part of Alexander in

backing the rig across the highway, and that Annette’s vision problems constitute the

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proximate cause of the collision.

To agree with the defendants, we would have to hold that Annette’s negligence as a

matter of law was the proximate cause of the collision. This we decline to do, feeling that

the evidence made a factual issue on proximate cause and comparative negligence for the

jury. While an extreme case may permit a conclusion on proximate cause as a matter of law,

this is not such a case. We agree with the trial judge’s assessment in submitting the factual

dispute to the jury in these circumstances. As we held in Kinnison v. Houghton, 432 F.2d

1274, 1277 (10th Cir. 1970), “the proximate cause issue was within the questions of fact for

the jury to decide, and its verdict against appellants is not without support.” The jury found

that Annette was ten percent negligent and the appropriate reduction in the damage award

has accordingly been made.

We are satisfied that the judge did not err in his instructions, which, as a whole,

adequately submitted the causation and proximate cause questions to the jury in accord with

Oklahoma law. There was no error in not giving the particular “Cause Versus Condition”

instruction of the defendants in light of the adequate instruction given in accord with the

Oklahoma Uniform Jury Instructions and cases noted.

C. Damages

Defendants maintain that the damage awards ($500,000 to Annette and $17,000 for

Krista) are excessive and contrary to the evidence; that the trial judge abused his discretion

in denying defendants’ motion for a new trial and their alternative motion for a remittitur;

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that the verdicts were the result of passion and prejudice and the improper injection of

liability insurance.

Federal law governs the granting or denial of a motion for a new trial in diversity

actions in federal court. State procedure does not apply. Whiteley v. OKC Corp., 719 F.2d

1051, 1058 (10th Cir. 1983); Fed. R. Civ. P. 59. A motion for a new trial on the ground that

the verdict of the jury is against the weight of the evidence is normally one of fact and not

of law and is addressed to the discretion of the trial court.” Campbell v. Bartlett, 975 F.2d

1569, 1577 (10th Cir. 1992). In reviewing a district court’s ruling on a motion for a new

trial, we do not make a determination of the sufficiency or weight of the evidence; rather, our

review is limited to whether the district court’s refusal to set aside the jury’s verdict was a

manifest abuse of discretion. Patty Precision Products Co. v. Brown & Sharpe Mfg. Co., 846

F.2d 1247, 1251 (10th Cir. 1988); Campbell, 975 F.2d at 1577.

Moreover, “federal law governs the decision whether a remittitur should be granted

in a diversity case. . . . ‘Under federal law, whether the trial court properly refused to grant

remittitur or a new trial on the ground of an excessive damage award is tested by an abuse

of discretion standard.’” K-B Trucking Co. v. Riss International Corp., 763 F.2d 1148, 1162

(10th Cir. 1985), (quoting Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th

Cir. 1981)); see also Sheets v. Salt Lake County, 45 F.3d 1383, 1390 (10th Cir.),

cert. denied, 116 S. Ct. 74 (1995) (district court’s denial of a motion for remittitur is entitled

to considerable deference on appeal and will not disturbed absent a gross abuse of

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discretion). In this respect, defendants bear the “heavy burden of demonstrating that the

verdict was ‘clearly, decidedly, or overwhelmingly against the weight of the evidence.’”

Campbell v. Bartlett, 975 F.2d at 1577 (quoting Locke, 309 F.2d at 817). And “‘absent an

award so excessive or inadequate as to shock the judicial conscience and to raise an

irresistible inference that passion, prejudice, corruption or other improper cause invaded the

trial, the jury’s determination of the fact is considered inviolate.’” Id. (quoting Barnes v.

Smith, 305 F.2d 226, 228 (10th Cir. 1962)); Whiteley, 719 F.2d at 1058 (determination of

damages is traditionally a jury function).

In his order denying defendants’ motion for a new trial or remittitur, the district judge

held that he was “not shocked by the size of the damage awards to Plaintiff, Annette A.

Blanke, and Plaintiff, Annette A. Blanke, on behalf of her minor daughter, Krista Blanke.

The Court cannot conclude that the jury acted out of passion or prejudice.” II Aplt. App. at

387. The judge further found that the court’s identification of Planet Insurance as a

defendant did not cause the jury to act prejudicially or with passion. Id. Moreover, the judge

determined that the instructions on damages were correct and that the court could not

“impute to the jury an inability to understand the jury instructions.” Id. Based on all of the

proper factors which the jury could consider in fixing damages for Annette and her daughter,

I Aplt. App. at 231-33, and because the jury had the opportunity to observe plaintiffs and

hear all the evidence, the judge concluded that it

[W]as the jury’s function, as trier of fact, to determine the amount of damages
that would fairly compensate them and the jury had wide discretion in making

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 that determination. Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir.
1985). The Court cannot say that it was irrational for the jury to award
$500,000 in damages to Annette A. Blanke, and $17,000 in damages to
Plaintiff’s daughter, Krista.

II Aplt. App. at 388. The judge similarly found that since the awards of damages do not

“shock judicial conscience,” the grant of a remittitur is not appropriate. Id. at 389.

We agree. As noted, the record reveals that Annette suffered serious thigh and ankle

injuries as a result of the collision, as well as other less severe injuries. She was knocked

unconscious following the accident and awoke in Hillcrest Hospital “in great pain and [she]

had her leg up in the air . . . .” II Tr. at 196. Even though she had morphine, she still was in

great pain and scared. Id. at 200. Her chest was bruised very badly, she had black eyes and

various bruises over her body. Id. at 202. Because of her broken right ankle, she had a cast

on her leg for some time. Id. at 205. Moreover, because of the extent of her leg and ankle

injuries, Annette was forced to undergo extensive surgical procedures involving the insertion

of hardware into her femur bone and ankle in order to repair the damage. Annette was

hospitalized for nine days. She used a wheelchair for a couple of months around her house

and crutches for about three months after her hospitalization. Id. at 207. Dr. Hayes said he

would recommend the nail be removed later; it is not good to have a metal rod in the femur

for the rest of her life. III Aplt. App. at 433. Annette was 31 years of age at the time of trial.

II Tr. at 175. She quit attending college late in the semester following the collision. II Tr.

at 176. There is a little bit of shortening of her leg where there was a mid-shaft femur

fracture with one small fragment of bone out, probably two centimeters in length, slightly

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displaced. Annette incurred medical bills totaling $29,564.77, III Aplt. App. at 727, and

Dr. Hayes estimated her future medical expenses would be in the range of $5,000. Id. at

434-35.

Based on her injuries, the necessary medical procedures, her probable need for future

medical attention, the limitations on her activities, and the pain she has experienced, we

cannot say that the jury’s verdict for Annette was clearly, decidedly, or overwhelmingly

against the weight of the evidence. Moreover, we do not find the award to be so excessive

as to raise an irresistible inference of passion, prejudice, or other improper cause.14

With respect to Annette’s daughter, Krista, Krista’s testimony shows she was nine

years old at the time of the accident and at the time of trial. II Tr. at 166, 168. She

remembers her mother’s vehicle hitting a big truck. She heard her mother screaming.

Krista’s hand and her back were hurting. Krista saw her mother on the ground. Her mother

said nothing back to her after Krista asked if she was “okay.” Id. at 170. Krista rode in the

ambulance to the hospital where the doctors helped her. After the accident Krista felt sad

and scared because she “thought [her] mama and [her] brother were dying.” Id. at 171. She

did not go back to school the next day but did after Christmas. Krista testified that she thinks

about the accident and about her “mother having another wreck.” Id. at 172. Krista’s

medical bills amounted to $874.43 for ambulance service, emergency room charges,

14
Of course, the jury’s verdict of $500,000 in favor of Annette was later reduced to
$450,000, due to the jury’s finding that she was ten percent negligent. I Aplt. App. at 239;
II Aplt. App. at 243.

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emergency room doctor’s bill, and replacing eyeglasses. III Aplt. App. at 760.

Again, we cannot say that the trial judge erred or abused his discretion in not

disturbing the $17,000 verdict for Krista. The jury was told they could consider Krista’s past

physical pain and suffering, her past mental pain and suffering, and her age, among other

things. We have noted Krista’s testimony about remembering her mother screaming, her

mother not responding, Krista’s fear and sadness because she thought her mother and brother

were dying, her own age, her worry about her mother having another wreck, her back and

hand hurting. During her deposition, Annette said that to her knowledge Krista didn’t really

suffer any physical injuries. II Tr. at 216. We find no error or abuse of discretion in the trial

judge’s refusing to disturb the verdict for Krista.15

As to the verdicts for both Annette and Krista, we find the district court’s rationale

to be well-reasoned and supported by the record, and we decline to disturb the verdicts. See

Specht v. Jensen, 832 F.2d 1516, 1528 (10th Cir. 1987), cert. denied, 488 U.S. 1008 (1989)

(district court’s refusal to grant new trial motion alleging excessive damages is afforded

considerable deference on appeal). Unlike special damages, such as medical expenses and

15
With respect to Krista, defendants take issue with a question submitted by the jury
to the trial judge during deliberations, which read, “What happens to dollars awarded to a
minor child? Is it put into a trust account, or something similar, to be used for her future
assistance? (not medical damages - other monetary awards).” III Aplt. App. at 792. Over
defendants’ objection, II Tr. at 310-11, the judge responded that “any award in excess of
$1000.00 is to be deposited in a federally insured financial institution, approved by the Court,
until the child is 18 years of age. Prior to the child becoming 18 years of age, withdrawals
can be made only pursuant to a Court order made in the case in which the recovery was had.”
III Aplt. App. at 793. We find no reversible error in this response to the jury.

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loss of earnings, which require specific proof, general damages for pain and suffering, such

as those present here, are not susceptible to proof by a set dollar amount. Williams v.

Missouri Pacific Railroad Co., 11 F.3d 132, 135 (10th Cir. 1993). In sum, for substantially

the same reasons stated by the trial court, we find that the jury’s awards do not shock our

conscience, and we hold that the judge did not manifestly abuse his discretion in denying

defendants’ motion for a new trial or a remittitur.

D. Directed Verdict on Medical Expenses

Lastly, we turn to defendants’ argument that the district court erred in refusing to grant

defendants a directed verdict on plaintiffs’ medical expenses. At the close of all the

evidence, defendants moved for a directed verdict on the issue of reasonable medical

expenses, arguing that plaintiffs failed to introduce Annette’s medical bills. II Tr. at 257.

Plaintiffs countered that the medical bills were introduced through the testimony of

Dr. Hayes, id., to which defendants replied that although the medical bills were discussed

during his testimony, they were never offered or made a part of the record. Id. at 257-58.

Plaintiffs then made a request to recall Annette and introduce the medical bills through her.

Id. at 258. The district court found that the medical bills had not been offered into evidence

previously during trial. Id. However, after being advised that plaintiffs’ exhibit number two

reflected the medical bills, the judge allowed plaintiffs to reopen and offer the medical bills.

Id. at 258-59.

“Reopening a case for additional evidence is within the discretion of the trial court.”

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City of Wichita, Kansas v. United States Gypsum Co., 72 F.3d 1491, 1496 (10th Cir. 1996).

Further, we review the trial court’s denial of a motion for directed verdict de novo. Haines

v. Fisher, 82 F.3d 1503, 1510 (10th Cir. 1996); Weese v. Schukman, 98 F.3d 542, 547

(10th Cir. 1996). In the instant case we find no abuse of discretion in permitting reopening

for the introduction of plaintiffs’ medical bills. We hold that the district court did not err in

overruling defendants’ motion for a directed verdict on this issue.

AFFIRMED.

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