F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LOWELL FLAMING;
TERESA FLAMING,
Plaintiffs-Appellants,
v. No. 03-1079
(D.C. No. 99-B-942 (CBS))
COLORADO SPRINGS PROPERTIES (D. Colo.)
FUNDS I, doing business as Apollo
Village Apartments, Ltd., a California
limited partnership; MERRILL R.
NEWTON; DARRYL MILLER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiffs Lowell and Teresa Flaming appeal from a jury verdict in favor of
defendants, Colorado Springs Properties Fund I, d/b/a Apollo Village Apartments,
Merrill Newton, and Darryl Miller, in their personal injury action. Jurisdiction in
the district court was based on diversity of citizenship under 28 U.S.C. § 1332.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Background
The Flamings leased an apartment in the Apollo Village apartment
complex. Mr. Flaming alleged that he slipped in the shower and fell, cutting his
left arm on broken glass in the splashguard surrounding the shower, and suffering
permanent nerve damage. Plaintiffs alleged the glass had been broken for several
months, that they had reported the problem to defendants, but defendants failed to
repair the splashguard. Defendants denied any knowledge of the broken glass.
Following a trial, the jury found the defendants were not negligent.
Voir Dire
On appeal, plaintiffs first argue that the district court dismissed a potential
juror for cause without giving them the opportunity to supplement the voir dire
questioning in order to rehabilitate the juror. They contend the district court
violated a Colorado rule that requires the court to permit the parties or their
counsel to ask the prospective jurors additional questions to supplement the
court’s voir dire. See Colo. R. Civ. P. 47(a)(3); see also People v. Lefebre , 5 P.3d
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295, 301 (Colo. 2000) (en banc) (interpreting similar requirement under
Colo. R. Civ. P. 24(a)(3)). Plaintiffs claim that there was insufficient evidence of
bias to strike this potential juror for cause, and that doing so effectively allowed
defendants an extra peremptory challenge. Further, they contend the district court
made more effort to rehabilitate jurors who had been landlords than those who
had been renters, thereby improperly shaping the jury. Plaintiffs contend these
errors violated their due process right to an impartial jury.
During voir dire, the court asked the jurors generally if they had any
experiences with respect to renting that would cause them to favor one party in
the case over the other. Venireperson Allen told the court that she had previously
rented from landlords who did not make repairs she believed they should have.
The court asked Allen if she would have difficulty deciding this case on its own
merits, and she responded, “I sure hope not.” Aplt. App., Appendix 1, at 17.
The court asked Allen if a claim were to be made against her as a landlord, would
she want someone sitting on the jury with the frame of mind that she now had,
and Allen responded, “Probably not.” Id. at 20. The court then sua sponte
excused her for cause. Significantly, plaintiffs’ counsel did not ask the court if he
or the court could question Allen further in an attempt to rehabilitate her; did not
raise his Colo. R. Civ. P. 47(a)(3) concern to the court; did not object to Allen’s
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dismissal; and did not object in any way, at any time, to the court’s conduct of the
voir dire or the composition of the jury.
Plaintiffs’ claimed voir dire errors are based on the erroneous legal premise
that Colorado’s procedural rule applies. In a diversity case, the court applies the
substantive law of the forum state, Colorado, in analyzing the underlying claim,
but applies federal law to procedural issues. See Ahrens v. Ford Motor Co. ,
340 F.3d 1142, 1145 (10th Cir. 2003). The content of voir dire in a federal court
is a procedural issue, governed by federal law, specifically Fed. R. Civ. P. 47(a),
and is not controlled by any contrary state law. Smith v. Vicorp, Inc. , 107 F.3d
816, 818 (10th Cir. 1997). The federal trial judge retains broad discretion under
Rule 47(a) to control the scope and extent of voir dire. Id. at 817.
Contrary to Colorado’s procedural rule, the federal trial court is not
obligated under Rule 47(a) to permit counsel to ask additional questions; Rule
47(a) states that the court “shall permit the parties or their attorneys to
supplement the [voir dire] examination by such further inquiry as it deems
proper .” Id. (emphasis added); see also 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2482, at 113 (2d ed. 1995) (“[t]he court
need not allow the attorneys to question jurors if it does not wish to do so.”).
Thus, the district court was under no obligation to follow Colorado’s procedural
rule mandating that attorneys be given an opportunity to question potential jurors.
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See Vicorp , 107 F.3d at 817-18 (rejecting argument that court was required to ask
specific questions requested by counsel and required under state procedural
rules).
Furthermore, plaintiffs never presented any of their voir dire arguments to
the district court. Their failure to request any further questioning of Allen, either
by counsel or the court, or to raise any objection either to Allen’s dismissal or to
the conduct of the voir dire constitutes a waiver of these issues on appeal. Cf.
United States v. Diaz-Albertini , 772 F.2d 654, 657 (10th Cir. 1985) (holding that,
when basis for juror challenge is timely shown, failure to object constitutes
waiver of right to attack jury composition). “[A]ttorneys may not sit idly by,
observe the occurrence of error, and then fail to bring the matter promptly to the
attention of the trial court.” Id. If plaintiffs’ counsel believed that Allen could
be rehabilitated by additional questioning or that any aspect of the court’s
voir dire examination was inappropriate, he was free to raise these concerns with
the court.
We find no error under a plain error analysis, which is limited in civil cases
to “errors which seriously affect the fairness, integrity or public reputation of
judicial proceedings.” Quigley v. Rosenthal , 327 F.3d 1044, 1063 (10th Cir.
2003) (quotation omitted), cert. denied , 124 S. Ct. 1507 (2004). Allen’s remarks
evidenced a clear indication that she doubted her own ability to be open-minded,
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which is a sufficient basis to remove a juror for cause. See Staley v.
Bridgestone/Firestone, Inc. , 106 F.3d 1504, 1514 (10th Cir. 1997). We are
satisfied from our review of the entire voir dire that the court’s questioning of all
the potential jurors was impartial and even-handed, and we find nothing in the
record to suggest that the jury impaneled was not impartial. See Getter v.
Wal-Mart Stores, Inc. , 66 F.3d 1119, 1123 (10th Cir. 1995) (finding party’s right
to an impartial jury not infringed, despite erroneous denial of for-cause challenge,
so long as the jury that sits is impartial). In short, we find no error in the court’s
conduct of the voir dire.
Rebuttal Witness
Plaintiffs next allege that the district court improperly disallowed the
telephonic testimony of a rebuttal witness. The district court’s refusal to allow
rebuttal testimony is reviewed for an abuse of discretion and will not be disturbed
absent a showing of manifest injustice to the parties. Munoz v. St. Mary-Corwin
Hosp ., 221 F.3d 1160, 1168 (10th Cir. 2000).
An expert witness called by defendants, Ms. Stodola, testified that the glass
in the splashguard was tempered glass. Ms. Stodola opined that tempered glass
could not have broken the way plaintiffs allege, nor caused the injuries suffered
by Mr. Flaming. At the conclusion of this testimony, plaintiffs requested
permission to call a rebuttal witness the next day who would testify about
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a reenactment of the incident she performed prior to the testing done by
Ms. Stodola. The district court granted this request, but the next day plaintiffs
stated that their rebuttal witness was unable to appear in person. The court denied
plaintiffs’ request to present the rebuttal testimony to the jury over the telephone.
In their claim of error, plaintiffs make two unsupported assertions. First,
plaintiffs state that their rebuttal witness was expected to testify that the glass she
tested during her reenactment was not tempered glass, and that the original glass
was destroyed after her reenactment and replaced with tempered glass. See Aplt.
Opening Br., at 3, 15. Plaintiffs did not, however, make this proffer to the district
court, nor is there any indication in the pre-trial report of any such expected or
possible testimony. 1
Second, plaintiffs state they were “completely surprised” by Ms. Stodola’s
testimony. Plaintiffs go so far as to characterize her testimony as a “fraud.” Id.
1
When asked the subject of the proposed rebuttal testimony, plaintiffs’
counsel stated,
there actually was a reenactment of the breakage of the shower door
on November 12, 1998 where that door in the front was busted out
and a test to see how the glass would break and fall to the floor. And
a Jan Colvin was present for that test, and I’m going to call her to
ask her if that reenactment of that front glass did take place, and
that’s the only question I had.
Aplt. App., Appendix 7, at 3. Counsel never told the district court that the
rebuttal witness would testify the glass she tested was untempered glass, that the
original glass was destroyed, or that it was replaced by tempered glass.
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at 16. The record demonstrates no such surprise or fraud, however. Plaintiffs do
not assert now, nor did they ever assert in the district court, that any aspect of
Ms. Stodola’s testimony was not disclosed in her expert disclosure report
provided to them under Federal Rule of Civil Procedure 26(a)(2)(B). Plaintiffs
did not include Ms. Stodola’s Rule 26 disclosure report in the record on appeal.
The pre-trial report lists Ms. Stodola as an expert witness who would testify as to
the opinions expressed in her Rule 26 disclosure report, and the defendants stated
in their opening argument that they would present expert testimony that the glass
was tempered. Thus, plaintiffs present no legal argument nor evidentiary support
for their claim of unfair surprise. Because plaintiffs made no showing to the
district court that they sought to rebut evidence that they could not have
reasonably anticipated, the district court was within its discretion to disallow the
rebuttal testimony on this basis alone. See Comcoa, Inc. v. NEC Tel., Inc. ,
931 F.2d 655, 664 (10th Cir. 1991).
Additionally, the presentation of testimony in court by “contemporaneous
transmission from a different location” is permitted in federal court only for
“good cause shown in compelling circumstances and upon appropriate
safeguards.” Fed. R. Civ. P. 43(a). Plaintiffs made no such showing in this case,
and the district court acted well within its discretion in disallowing the telephonic
testimony of the plaintiffs’ rebuttal witness.
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Jury Instruction
Finally, plaintiffs contend the district court erred in not amending the civil
jury instruction defining causation. Plaintiffs contend the district court gave the
standard Colorado civil jury instruction defining causation:
The word “cause” as used in these instructions means an act or
failure to act which in natural and probable sequence produced the
claimed injury. It is a cause without which the claimed injury would
not have occurred.
Aplt. Opening Br. at 18.
Plaintiffs argue the instruction is “overbroad, tenuous and confusing,”
because any action could be “a cause without which the claimed injury would not
have occurred.” Aplt. Opening Br. at 18. They assert that the jury could “go
back in time, as far as they deem fit, to find a cause, whether [or not] it is
relevant to the matter at hand.” Id. Plaintiffs focus only on the last sentence of
this instruction, however. When read in context with the first sentence of the
instruction, it is clear the instruction requires that the injury be a natural and
probable result of the act in question, and that the instruction accurately informs
the jury of the governing law. See Quigley , 327 F.3d at 1062 (court reviews de
novo whether the instructions, as a whole, accurately stated the governing law);
see also Hall v. Walter , 969 P.2d 224, 238 n.12 (Colo. 1998) (defining causation
under Colorado law). Thus, we find no error in the given instruction.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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