                                                                                      FILED
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              December 14, 2009
                                    TENTH CIRCUIT
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court



TERRY MINTER,

              Plaintiff - Appellant,
                                                               No. 07-7089
v.                                                             (E.D. Okla.)
                                                      (D.C. No. 6:02-cv-00132-KEW)
PRIME EQUIPMENT CO., a Texas
corporation,

              Defendant - Appellee.



                               ORDER AND JUDGMENT*

Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.


       Terry Minter was rendered a paraplegic following a workplace accident in which

he fell from a scissor lift1 owned by G&G Leasing. Minter settled with all defendants

except Prime Equipment Company (“Prime”), who sold the lift to G&G Leasing after

purchasing it from its original manufacturer and modifying it by replacing a safety


___________________
        *
          This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       1
       A scissor lift is “a type of industrial lift that raises and lowers a platform used for
work positioning.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1197 (10th Cir. 2006).
guardrail with a length of chain. Minter proceeded to trial against Prime; that trial ended

in a defense verdict on Minter’s failure to warn theory. Minter appealed and we

remanded. See Minter v. Prime Equip. Co., 451 F.3d 1196 (10th Cir. 2006). A second

trial was held on Minter’s product liability theory. The jury returned a verdict for Prime.

Minter appeals from that verdict alleging three evidentiary errors. He claims the court

erred by: (1) excluding manufacturer liability as a basis for recovery; (2) granting Prime’s

mid-trial motion in limine to exclude evidence supporting Minter’s “but for” theory of

causation; and (3) refusing to allow Minter to introduce into evidence two of Prime’s

responses to Minter’s requests for admission. We affirm.

                                I.      BACKGROUND2

       On July 14, 1996, Minter, an experienced painter, was using a scissor lift owned

by G&G Leasing to enable him to paint a ceiling at a worksite. [Vol. II at 271] While

working atop the lift, Minter stepped off the side of the lift platform and fell

approximately twenty feet to the ground. [See 451 F.3d at 1197] “The impact fractured

his skull, damaged his spinal cord, and resulted in permanent paralysis from the waist

down.” Id. at 1197.

       The lift from which Minter fell was manufactured in 1987 by Economy Company

(“Economy”). [Id.; Vol. I at 108; Vol. III at 559] Economy sold the lift to a

predecessor of Prime that same year. [Vol. I at 168, 185, 186; Vol. III at 559] When

Prime purchased the lift, it contained a solid metal guardrail around the top perimeter of

       2
         We discussed the factual and procedural history of this case in detail in our
earlier decision. See Minter, 451 F.3d at 1197-1203. Here, we review only those facts
most relevant to the issues presented.

                                                -2-
the lift platform and a length of chain around the mid-level of the platform. [Vol. I at

109, 115] Prime replaced the solid guardrail with a length of chain. [Vol. I at 137]

When properly latched, the chain completed the top rail of the railing system. Prime sold

the modified lift to G&G Leasing in August 1991. [Vol. I at 135, 136, 177] Both the top

and mid-level chains were found unlatched after Minter’s accident.3

       Minter filed an action in federal court against Prime and Economy.4 [Vol. IV at

626] Prior to trial, Minter notified Prime he intended to include a product liability claim

against it based on its removal of the solid guardrail. Three days before trial, the court

granted Prime’s motion to strike the new product liability claim from the pretrial order.

Minter settled with Economy on the eve of trial. Thus, the only claim remaining to be

tried was Minter’s failure to warn claim against Prime. Before opening statements,

Minter again tried to add a product liability claim against Prime based on the alterations it

made to the lift. He filed a motion to amend the pleadings to conform to the evidence.

The court determined it could not rule on the motion because no evidence had yet been

presented. At the close of Minter’s case, the court denied Minter’s motion. The jury

ultimately returned a verdict in favor of Prime. [Vol. IV at 638]

       Minter appealed, arguing, inter alia, the district court erred by granting Prime’s

       3
          Minter claims he fastened the top chain but three individuals who observed the
lift following the accident testified neither chain was fastened. [Vol. II at 277; Vol. III
at 441-42, 453, 470]
       4
         Minter had previously filed an action in Oklahoma state court against Prime,
Economy and five other defendants. After four years of litigation, Minter settled with the
five other defendants, leaving complete diversity of citizenship between himself and the
remaining defendants—Prime and Economy. Minter voluntarily dismissed his state court
complaint in order to refile in federal court. [See 451 F.3d at 1198-99]

                                                -3-
motion to strike the product liability claim from the pretrial order and by denying

Minter’s motion to amend the pleadings. We concluded the court abused its discretion by

denying Minter’s motion to amend the pleadings and remanded for a new trial on

Minter’s product liability claim. Minter, 451 F.3d at 1214. We found no error in the

district court’s evidentiary rulings and affirmed the jury verdict on Minter’s failure to

warn claim. Id.

       On remand, the case was tried for a second time—this time on Minter’s product

liability claim. Minter argued the accident was caused by a defect in the lift—

specifically, the lack of a solid guardrail. [Vol. III at 559] He argued his accident would

not have occurred but for Prime’s modification to the lift. Prime acknowledged it

modified the lift by removing the solid guardrail but argued the lift was not defective

with the dual chain entry and the accident was caused by Minter’s failure to latch the two

chains. [Id. at 560]

       Both Minter and Prime relied heavily on expert testimony to support their

respective positions. Minter called Lyle Grider, who designed the lift with the solid

guardrail. [Vol. II at 366] On direct examination, Minter asked Grider: “Did the sale of

this lift with these alterations make it defective and unreasonably dangerous when sold?”

(Appellant’s App. Vol. II at 389.) Grider answered: “Yes, it did.”5 (Id.) Prime called

Charles Mark Recard, who testified the two-chain system was neither defective nor

       5
         On cross-examination, Grider appeared to contradict his earlier testimony.
Counsel for Prime asked Grider: “[I]t’s your opinion, sir, that the two-chain system,
which has been used since 1966, is not unreasonably dangerous when used properly; is
that correct?” (Appellant’s App. Vol. II at 396.) He answered: “That’s correct.” (Id.)

                                                -4-
unreasonably dangerous. [Vol. III at 487-88]

       The court instructed the jury on the elements of a “manufacturers’ products

liability claim” and neither party objected to the instruction.6 (Appellant’s App. Vol. III

at 564.) The jury returned a verdict in favor of Prime. [Vol. IV at 606] Minter filed a

timely notice of appeal.




       6
           The court instructed the jury:
       A party claiming damages under manufacturers’ products liability has the
       burden of proving each of the following:

       1. Defendant Prime Equipment Company sold the scissor lift;

       2. Defendant Prime Equipment Company was in the business of selling
       such products;

       3. The scissor lift was defective and because of the defect, the scissor lift
       was unreasonably dangerous to a person who uses, consumes, or might be
       reasonably expected to be affected by the scissor lift;

       4. The scissor lift was defective at the time it was sold by Defendant Prime
       Equipment Company or left its control;

       5. Plaintiff Terry Minter was a person who used, consumed, or could have
       reasonably been affected by the scissor lift; and

       6. Plaintiff Terry Minter sustained personal injuries directly caused by the
       defect in the scissor lift.

       A product is defective when it is not reasonably fit for the ordinary
       purposes for which such products are intended or may reasonably be
       expected to be used. A defect may arise out of a chain and latch entry
       system present on the scissor lift at the time of the sale of the lift by
       Defendant Prime Equipment Co. to Marrs Electric/G&G Leasing.

       (Appellant’s App. Vol. III at 564-65.). This instruction was based on the
       Oklahoma Uniform Jury Instructions (Civil) §§ 12.1, 12.2.


                                                -5-
                                II.       DISCUSSION

       Minter contends the trial court made three evidentiary errors which “prevented

[him] from submitting his claims to the jury.” (Appellant’s Opening Br. at 3.) He claims

the court erred by: (1) excluding manufacturer liability as a basis for recovery; (2)

granting Prime’s mid-trial motion in limine to exclude evidence supporting Minter’s “but

for” theory of causation; and (3) refusing to allow Minter to introduce into evidence two

of Prime’s responses to Minter’s requests for admission. “We review a district court’s

evidentiary rulings for an abuse of discretion.” McInnis v. Fairfield Communities, Inc.,

458 F.3d 1129, 1141 (10th Cir. 2006). “We will not overturn an evidentiary ruling absent

a distinct showing that it was based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error of judgment.” Id. at 1141-42 (quotations

omitted).

       Even assuming the district court abused its discretion in excluding
       evidence, we must also determine whether the exclusion was harmless error
       because we will not set aside a jury verdict unless the error prejudicially
       affects a substantial right of a party. An error affecting a substantial right
       of a party is an error which had a substantial influence or which leaves one
       in grave doubt as to whether it had such an effect on the outcome. When
       conducting our harmless error analysis, we review the record as a whole.

Id. at 1142 (quotations and citations omitted). In a diversity action, we apply the

substantive law of the forum state—here, Oklahoma. Skidmore, Owings & Merrill v.

Canada Life Assur. Co., 907 F.2d 1026, 1027 (10th Cir. 1990) (per curiam).

       Under Oklahoma law:

       [A] party proceeding under a strict products liability theory—referred to as
       manufacturer’s products liability—must establish three elements: (1) that
       the product was the cause of the injury, (2) that the defect existed in the


                                                -6-
       product at the time it left the manufacturer, retailer, or supplier’s control,
       and (3) that the defect made the product unreasonably dangerous.

Gaines-Tabb v. ICI Explosives, USA, 160 F.3d 613, 625 (10th Cir. 1998) (quotations and

citation omitted). There was no question the alleged defect existed at the time the lift left

Prime’s possession and control. Thus, Minter’s task at trial was to prove the lift was

defective, the defect rendered the lift unreasonably dangerous, and his injuries were

caused by the defective lift.7 Prime could prevail by establishing Minter voluntarily

assumed the risk of a known defect.8 See Kirkland v. General Motors Corp., 521 P.2d

1353, 1366 (Okla. 1974) (assumption of the risk is a defense to a product liability claim);

see also Hogue v. A. B. Chance Co., 592 P.2d 973, 975 (Okla. 1978) (“Under [Kirkland]

there must be a showing the plaintiff knew of a defect unreasonably dangerous in nature,

yet voluntarily used the product. Only then is he precluded from recovery under this

defense.”).

A.     Manufacturer Liability

       Before trial, Minter filed a motion arguing Prime was a manufacturer of the lift on

account of its “extensive modifications to the scissor lift.” (Appellant’s App. Vol. V at

       7
         The Oklahoma Uniform Jury Instructions state the injury must be “directly
caused” by the defective product. Okla. Uniform Jury Instructions (Civil) § 12.1.
“Direct cause means a cause which, in a natural and continuous sequence, produces
injury and without which the injury would not have happened.” Id. at § 12.4.
       8
         Unlike assumption of risk, contributory negligence is not recognized as a defense
in a product liability case. See Thomas v. Holliday By & Through Holliday, 764 P.2d
165, 169-71 (Okla. 1988) (discussing the distinction between assumption of risk and
contributory negligence); see also McMurray v. Deere & Co., Inc., 858 F.2d 1436, 1440-
41 (10th Cir. 1988) (holding the trial court erred in giving instruction on assumption of
risk where there was no evidence the plaintiff had knowledge of the risk); Smith v. FMC
Corp., 754 F.2d 873, 876 (10th Cir. 1985) (same).

                                                 -7-
845.) The court denied Minter’s motion, explaining: “It is admitted by all parties that no

case from an Oklahoma court has found a seller or reseller to be transformed [in]to a

manufacturer . . . . Absent such specific case authority from the State of Oklahoma, this

Court will not do so either.” (Id. at 977.) The court then held that because Prime is not a

manufacturer, it cannot be held to the standards of the American National Standards

Institute (ANSI).9 [Id. at 978] The court also held Minter could not introduce OSHA

regulations because Prime was not Minter’s employer.10 [See id.]

       Minter contends the trial court’s refusal “to attempt to predict what the state’s

highest court would do” prevented him from presenting evidence comparing the safety of

the guardrail to the dual chain entry “in the context of feasible alternative design and state

of the art.”11 (Appellant’s Opening Br. at 30-31.) However, as the district court

recognized, “the issue of manufacturer compliance with industry standards is generally

considered to be irrelevant in a strict liability case. Rather, it relates to the question of the

manufacturer’s duty of care under a negligence theory.” Rexrode, 674 F.2d at 831. This

was not a negligence case. Minter voluntarily dismissed his negligence claim against

Prime prior to the first trial. Thus, whether Prime exercised ordinary care to avoid injury


       9
        “The American National Standards Institute is an organization which publishes
national nonmandatory standards for various products.” Rexrode v. Am. Laundry Press
Co., 674 F.2d 826, 831 n.14 (10th Cir. 1982).
       10
        OSHA regulations impose mandatory standards on employers and employees.
See Rexrode, 674 F.3d at 831 n.15.
       11
         Comparative safety evidence can also be admitted to prove consumer
expectations. See Robinson v. Audi Nsu Auto Union Aktiengesellschaft, 739 F.2d 1481,
1486 (10th Cir. 1984). Minter does not argue he sought to introduce the evidence to
prove consumer expectations.

                                                  -8-
is irrelevant.

       While evidence regarding industry standards and state-of-the-art designs may be

admitted “to try to show the feasibility of other safer alternatives,” Robinson, 739 F.2d at

1486, the fatal flaw in Minter’s argument is that Prime never argued it was not feasible to

have a solid top guardrail on the lift. Such an argument would make no sense

considering the lift was originally manufactured with the guardrail. Thus, the feasibility

of the alternative design was not at issue. Even if the court had deemed Prime to be a

manufacturer, Minter would not have been able to introduce evidence of the lift’s

compliance with ANSI standards.

       In opposing Minter’s motion, Prime asserted whether it was a manufacturer was

“irrelevant.” (Appellant’s App. Vol. V at 914.) Prime argued:

       If Plaintiff successfully proves the lift as sold by Prime was defective and
       unreasonably dangerous to the ordinary consumer, caused the fall and
       plaintiff did not assume the risks of a known defect, there is liability against
       Prime whether they are deemed a manufacturer, a retailer, a seller or a ham
       sandwich.

(Id. at 915.) We agree with Prime that “it is irrelevant whether Prime was identified as

the manufacturer or retailer for the purposes of this litigation.” (Appellee’s Br. at 35.)

       In Oklahoma, there is no distinction between a manufacturer and a retailer for

purposes of a product liability suit. See id at 1487-88 (“That [the defendant] did not

design or manufacture the allegedly defective product is not consequential in a product

liability suit in Oklahoma . . . . [T]he seller of a product stands in the same shoes as the

manufacturer in an Oklahoma products liability action and is subject to admission of the

same evidence regarding alleged defects and the resultant unreasonable danger.”); see

                                                -9-
also Braden v. Hendricks, 695 P.2d 1343, 1350 (Okla. 1985) (“In a strict liability action it

is immaterial to the plaintiff’s case that the defect in the product was not caused by the

distributor. The liability of a manufacturer and distributor is co-extensive . . . .”). If the

court erred, its error was harmless.

B.     “But For” Theory of Causation

       Before Minter delivered his opening statement, counsel for Prime objected to

Minter’s theory of the case—but for the removal of the solid bar, the accident would not

have occurred:

       [Minter’s counsel] continues—and I anticipate over my objections in this
       trial—will continue to argue that but for the removal of the solid bar, this
       accident would not have . . . occurred. That is improper, it’s irrelevant, and
       that type of an analysis could only go to a negligence claim where the
       active negligence was the removal of the safety bar. The products liability
       claim is whether or not that lift was defective as sold with two chains in
       1991.

(Appellant’s App. Vol. I at 7.) The court overruled Prime’s objection. [Id. at 36]

       In his opening statement, Minter’s counsel argued: “[I]f the defendant, Prime

Equipment Company, had not altered this lift, it is undisputed that Terry Minter would be

able to be at work today instead of sitting trapped in this wheelchair for the rest of his

life.” (Id. at 54-55.) Again, Prime objected and the court overruled. [See id. at 55]

Prime moved for a mistrial on the basis of Minter’s opening statement: “[Minter’s

counsel] . . . over my objection, spent the entirety of his opening statement arguing a

negligence claim that he has dismissed. I can’t even count how many times he made the

argument that if the bar hadn’t been removed, we wouldn’t be here today.” (Id. at 64.)

Minter’s counsel responded: “This whole lawsuit is about the fact that this machine came


                                                - 10 -
to this dealer with a solid bar, they took it off, and sold it that way. I don’t know how

many times I have to say that. That’s the whole point of our case.” (Id.) The court

overruled Prime’s motion for a mistrial. [Id. at 65]

       Before Minter called Lyle Grider, Prime moved to prohibit Grider from testifying

“that but for the removal of the solid bar, the accident wouldn’t have occurred” because

such an argument would only be relevant in a negligence case, not a products liability

case. (Appellant’s App. Vol. II at 334-45.) The court agreed:

       [T]he issue in this case is whether or not the chain-entry system as designed
       was defective or unreasonably dangerous. It is not whether or not it would
       have been safer with a solid bar.

       So I agree with defendants that Mr. Grider should not be allowed to testify
       as to the ‘but for removal of the solid bar the accident would not have
       occurred’ because that gets into a weighing of which is safer and that’s not
       the issue. The issue is, was it unreasonably dangerous with the chain-entry
       system . . . . [S]o he will not be allowed to testify and weigh the relative
       safety of each type of those machines.

(Id. at 337-38.) The court later clarified:

       [Grider] will be able to testify as to the safety of the machine as it existed at
       the time of the accident without a relative weighing of the safety of a
       machine with the solid guardrail. So he will not be allowed to testify that
       but for removal of the solid guardrail, the machine became unsafe.

       His testimony will be restricted to . . . the relative safety of the machine as
       it existed at the time of the accident and as it was put into the stream of
       commerce with . . . the chain-rail system on it.

(Id. at 365-66.) Before closing arguments, the court reiterated its earlier ruling:

       [T]he question is whether the product as Prime Manufacturing was using it
       and introduced it into the stream of commerce . . . was defective.

       I do not believe that the law allows for a weighing of, would it have been a
       better product if it had a solid guardrail versus the system that it had. The
       question is whether that in and of itself is defective.

                                                - 11 -
(Appellant’s App. Vol. III at 549-50.)

       Minter contends the court erred in excluding his “but for” theory of the case

because “[p]roving products liability with but for causation is endorsed by many courts,

including the Oklahoma Supreme Court.” (Appellant’s Opening Br. at 18.) Prime

contends the court correctly excluded Minter’s “but for” theory because it is not a proper

theory of strict liability. Prime argues: “A central flaw in Mr. Minter’s repeated ‘but for’

arguments to the jury was that it focused the jury on the wrong predicate. The proper

‘but for’ causation inquiry is ‘but for’ an alleged defect in the product, not an alleged act

by Prime.” (Appellee’s Br. at 18.) “‘[B]ut for’ causation is a non sequitur. What matters

is causation by the defect.” (Id. at 19.)

       We agree with Prime. As previously discussed, in order to succeed on his claim,

Minter had to prove the lift was defective, the defect rendered the lift unreasonably

dangerous, and his injuries were caused by the defective lift. Minter’s “but for” theory

was not relevant to any of these elements and improperly focused the jury on Prime’s

conduct rather than the lift’s alleged defect.

       In Bruce v. Martin-Marietta Corp., we explained: “As to strict liability, the

question is whether the [product] was sold in a defective condition unreasonably

dangerous to the user. The negligence question is whether [the defendant] exercised

reasonable care.” 544 F.2d 442, 445 (10th Cir. 1976) (applying Oklahoma law)

(quotations omitted). Even if the jury concluded Minter would not have been injured but

for Prime’s removal of the guardrail, the strict liability question would remain. In other

words, whether Prime’s actions were the “but for” cause of Minter’s injury bears on the

                                                 - 12 -
question of whether Prime was negligent, not on the question of whether the lift was

defective and unreasonably dangerous.

       Under Oklahoma law:

       [T]he fact that a product could be made safer by adding a safety device is
       not, without more, enough to establish that the product is defective as a
       manufacturer does not have a legal duty to produce a product incorporating
       only features representing the ultimate in safety.

Wicker ex rel. Estate of Wicker v. Ford Motor Co., 393 F.Supp.2d 1229, 1236 (W.D.

Okla. 2005) (quotations omitted). “Only when a defect in the product renders it less safe

than expected by the ordinary consumer will the manufacturer be held responsible.”

Lamke v. Futorian Corp., 709 P.2d 684, 686 (Okla. 1985); see also Gaines-Tabb, 160

F.3d at 624-25 (same); Woods v. Fruehauf Trailer Corp., 765 P.2d 770, 775 (Okla. 1988)

(“In this case the evidence that the tank could have been made ‘safer’ does not establish

that it was less safe than would be expected by the ordinary consumer.”). Even though

the lift might have been safer with the solid guardrail, as Prime acknowledges, that does

not mean the lift was defective and unreasonably dangerous. Minter’s “but for” theory,

even if allowed by the court and adopted by the jury, would not have proven his case.

The court did not err in excluding it.12

C.     Requests for Admission

       Minter called Jerry Segovia, a sales representative for Prime, as part of his case-in-

chief. [Vol. I at 119, 120] Minter asked Segovia: “Would you agree that a solid

       12
          Moreover, based on our review of the trial transcript, we agree with Prime that,
if there was error, it was harmless because the jury was allowed to hear substantial
argument and evidence relating to Minter’s “but for” theory notwithstanding the court’s
ruling on Prime’s motion in limine.

                                               - 13 -
guardrail on the platform of a scissor lift reduces the danger of falls for lift operators who

might otherwise forget to latch a chain-link entry properly?” (Appellant’s App. Vol. I at

142.) Segovia responded: “Yes.” (Id.) Minter then sought to introduce into evidence

two of Prime’s responses to Minter’s requests for admission:

        REQUEST NO. 13: Admit that a solid guardrail on the upper perimeter of
        the platform of a scissor lift reduces the risk of falls for lift operators who
        might otherwise forget to latch a chainlink entry or fail to latch a chainlink
        entry properly.

        ANSWER: Defendant objects to Request No. 13 because the request is
        compound and assumes facts not in evidence in this case. Without waiving
        said objections, admitted.

        REQUEST NO. 14: Admit that a solid guardrail on the platform of a
        scissor lift reduces the danger of falls for lift operators who might otherwise
        forget to latch a chainlink entry or fail to latch a chainlink entry properly.

        ANSWER: Defendant objects to Request No. 14 because the request is
        compound and assumes facts not in evidence in this case. Without waiving
        said objection, admitted.

(Appellant’s App. Vol. IV at 719-20). [Vol. I at 142] Prime objected to the discovery

responses as cumulative. [Id. at 143] Minter argued that because Segovia was not

testifying as a designated corporate representative pursuant to Rule 30(b)(6) of the

Federal Rules of Civil Procedure, his answers were insufficient to bind Prime and thus,

the requests for admission were not cumulative.13 [Id. at 144] The court sustained the


        13
             Rule 30(b)(6), relating to depositions by oral examination, states in pertinent
part:
        In its notice or subpoena, a party may name as the deponent a public or
        private corporation . . . and must describe with reasonable particularity the
        matters for examination. The named organization must then designate one
        or more officers, directors, or managing agents, or designate other persons
        who consent to testify on its behalf . . . . The persons designated must

                                                  - 14 -
objection “partially because it wasn’t raised before now and partially because I’m not

sure that this witness is the appropriate one to do that.” (Appellant’s App. Vol. I at 148.)

       After Segovia’s testimony was complete, Minter again moved to admit the

requests for admission. [Id. at 158] The court sustained Prime’s objection explaining:

       After looking at the request for admission again, I’m not sure that the
       admission was inconsistent with what the witness testified to. He testified
       as a witness on behalf of Prime as their corporate representative, and his
       statements on the witness stand were what is encompassed within the
       request for admission.

(Id. at 158-59.) The next day, Minter again moved to admit the requests for admission

and presented additional authority to the court in support of his position. [Vol. II at 220]

The court denied Minter’s motion. [Id. at 223] Minter again moved unsuccessfully to

admit Prime’s admissions after presenting all of his testimony. [See Vol. II at 411]

       Minter contends the court erred in excluding Prime’s answers to Minter’s requests

for admission because Segovia’s testimony could not bind Prime. Prime contends it was

not error to exclude its responses to Minter’s requests for admission because they were

irrelevant and could only mislead the jury. Prime also asserts “even if the requests for

admissions were properly admissible, the Court’s failure to admit them was not reversible

error. No witness from Prime . . . took a position any different from the only logical

position it could take with regard to these inquiries by Mr. Minter.” (Appellee’s Br. at

42.)

       Under Rule 36 of the Federal Rules of Civil Procedure, “[a]ny matter admitted . . .



       testify about information known or reasonably available to the organization.


                                               - 15 -
is conclusively established unless the court on motion permits withdrawal or amendment

of the admission.” This rule “serves two vital purposes, both of which are designed to

reduce trial time. Admissions are sought, first to facilitate proof with respect to issues

that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating

those that can be.” Fed. R. Civ. P. 36(a) advisory committee’s note (1970). “In most

cases . . . there should be a clear relationship between the request for admissions and a

pre-trial order . . . . Once admitted, the parties are bound thereby and by stipulations

included in a pre-trial order.” Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th

Cir. 1978); see also Champlin v. Okla. Furniture Mfg. Co., 324 F.2d 74, 76 (10th Cir.

1963) (“[Rule 36] is most advantageously used . . . prior to the pretrial conference, and

the facts established by the answers to the request for admission may . . . be incorporated

into the pre-trial order as undisputed material facts in the case . . . .”); see, e.g., Am. Auto.

Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir. 1991)

(holding the district court erred in excluding defendant’s responses to plaintiff’s requests

for admissions where plaintiff “included the admissions in its pretrial order as

‘undisputed issues of fact,’ introduced the admissions into evidence at trial and relied on

them in support of its case”).

       Here, Minter did not include Prime’s requests for admissions in the pretrial order,

which was filed one day before trial began.14 [Vol. I at xxxi] We have held “[t]he trial

       14
          Minter claims it designated these discovery responses one week before trial.
[Appellant’s Opening Br. at 15; Vol. IV at 707] The record does not indicate whether
these discovery responses were filed. If they were filed, they were filed before the
pretrial order and were not expressly incorporated in the pretrial order.

                                                 - 16 -
court may properly reject contentions of parties that raise issues at trial which are not

included in a pre-trial order.” Keen, 569 F.2d at 554. “[A]mendment of a pre-trial order

formulating issues will be permitted during trial only if necessary to prevent manifest

injustice.” Id. Minter did not seek to amend the pretrial order and does not argue it was

manifestly unjust for the court to exclude Prime’s admissions.

       Even if we were to conclude the court abused its discretion in excluding Prime’s

discovery responses, the error would not require reversal because Segovia’s testimony

was consistent with Prime’s discovery responses and Prime has never taken a contrary

position.

       AFFIRM.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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