                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              SEP 22 1998
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

CARL DEMETRIUS MITCHELL,

           Plaintiff-Appellant,

v.                                              No. 97-7009
                                          (D.C. No. 89-CV-465-BU)
GARY D. MAYNARD, Director of                     (E.D. Okla.)
Department of Corrections; TOM
LOVELACE; DELORES RAMSEY;
JAMES S. SAFFLE, Warden, State
Prison, McAlester, OK; JAMES
SORRLES; TED WALLMAN,
Warden, Mack Alford Correctional
Center; MICHAEL CRABTREE,
aka, Michale Crabtree; SAM KEY,
Security Major at Mack Alford
Correctional Center; MICHAEL
TAYLOR; LOUIS LAYTON,
Correctional Officer; KARL
GOODSON, Correctional Officer;
J. MIKE PRUITT, Unit Manager,
Oklahoma State Penitentiary; BILLY
KEY, Law Library Supervisor,
Oklahoma State Penitentiary;
GEORGE DUGAN, Correctional
Counselor, Oklahoma State
Penitentiary; LARRY WATSON,
CO I, Oklahoma State Penitentiary,

           Defendants-Appellees.
                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and BROWN, ** Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff filed a civil rights action against fourteen state prison officials and

employees pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional

rights. The district court dismissed the claims as frivolous under 28 U.S.C.

§ 1915(d). Plaintiff appealed to this court, and we reversed and remanded the

case to the district court. Mitchell v. Maynard, No. 92-7066, 1992 WL 401593,

at **3 (10th Cir. Dec. 23, 1992) (unpublished). A jury trial was held, and at the

close of the evidence the district court granted defendants’ motion for judgment

as a matter of law and dismissed plaintiff’s claims. Plaintiff again appealed to



*
      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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.

                                         -2-
this court. We reversed the district court’s judgment as to plaintiff’s Eighth

Amendment condition of confinement claims and remanded for a new trial on

those claims, directing that a different district court judge be assigned to preside

over the proceedings. Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996).

We affirmed as to all other claims. Id. On remand, a jury returned a unanimous

verdict in favor of the remaining two defendants. 1

      Plaintiff again appeals to this court, arguing that the district court erred

in three respects: (1) refusing to allow plaintiff’s expert to testify; (2) failing to

grant plaintiff judgment as a matter of law; and (3) admitting evidence of

plaintiff’s prior bad acts. We affirm.

      A pretrial order was filed in this case on October 3, 1996, and included in

plaintiff’s list of witnesses was an expert witness “(to be named).” Appellee’s

Supplemental App. Ex. F, at Plaintiff’s Witness List #14. The pretrial order

designated a discovery cut-off date of December 1, 1996. On November 14,

1996, plaintiff’s counsel employed an expert and “notified Defendant[s’] counsel

of his identity and offered full cooperation in the taking of his deposition.”

Appellant’s Br. at 9. Defendants filed a motion to strike plaintiff’s expert witness

on November 20, 1996, and on November 26, 1996, defendants deposed

plaintiff’s expert. Defendants did not move for a continuance to locate their own


1
      Twelve of the defendants were dismissed before trial.

                                          -3-
expert, nor do they represent on appeal that they intended to call any additional

witnesses, expert or otherwise, to counter plaintiff’s expert’s testimony. 2 When

the parties arrived for trial on December 10, 1996, the court informed counsel for

both sides that it had issued a minute order granting defendants’ motion to strike

plaintiff’s expert witness. 3 The district court based its order on the fact that

plaintiff neglected to formally amend his witness list attached to the pretrial order

to reflect the identity of the previously “to be announced” expert. The court

found that

      Plaintiff’s delinquent identification of an unidentified expert witness
      in the Pretrial Order and subsequent identification of said expert
      some 45 days later and less than 30 days prior to trial is prejudicial to
      Defendants since such action does not permit Defendants sufficient
      time to evaluate the expert’s testi[m]ony and procure an expert
      witness of their own to counter the Plaintiff’s expert witness’s
      opinions and testimony.

Appellee’s Supplemental App. Ex. H.

      We review the district court’s exclusion of plaintiff’s expert witness for

an abuse of discretion. See Polys v. Trans-Colorado Airlines, Inc., 941 F.2d

2
       Plaintiff’s counsel represents that, in fact, defendants’ counsel had notified
plaintiff’s counsel that they intended to use Warden Saffle as their expert. See
Appellant’s Br. at 9. Plaintiff also notes that defendants’ counsel referred to
Saffle at trial as her “expert.” Id. at n.10.
3
      Plaintiff represents in his brief that “[b]ased upon informal conversations
with Defendants’ counsel, all counsel thought that Defendants’ motion to strike
was essentially rendered moot by the fact that Defendants had been able to take
the deposition of Plaintiff’s expert two weeks prior to trial.” Appellant’s Br. at
10. Defendants do not dispute this representation.

                                          -4-
1404, 1407 (10th Cir. 1991). Factors that we consider in making this

determination include:

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


Smith v. Ford Motor Co., 626 F.2d 784, 797 (10th Cir. 1980) (quotation omitted).

We recognize, as did the district court in its order, that a properly drawn pretrial

order “‘supercede[s] the pleadings and govern[s] the trial of the case unless

departure therefrom is permitted by the Court in the interest of justice.’”

Appellee’s Supplemental App. Ex. H (quoting EDOK Former LR 17(c)). It is also

true, however, that “the pretrial order is a procedural tool to facilitate the trial of

a lawsuit on its merits and not to defeat it on a technicality.” Trujillo v. Uniroyal

Corp., 608 F.2d 815, 818 (10th Cir. 1979) (quotation omitted).

      Applying the facts of this case to the factors set forth in Smith, we are left

with the impression that the district court abused its discretion in excluding

plaintiff’s expert. Defendants were able to depose the expert two weeks before

trial, so there is no prejudice or surprise in fact as to the expert’s testimony.

If defendants needed to locate an additional witness to counter the expert’s

testimony (which, we gather from the facts surrounding the trial and the tenor


                                           -5-
of both parties’ briefs on appeal, they did not), they could have moved for a

continuance. It appears that both parties expected the expert to testify, thus there

would have been no disruption of the trial. Finally, there is no evidence of bad

faith or willfulness by plaintiff in failing to amend the pretrial order. In fact the

opposite appears true; the expert was identified before the discovery cutoff, and

plaintiff immediately notified defendants of the expert’s identity and offered full

cooperation in facilitating a deposition. It is true that plaintiff neglected to

formally amend the pretrial order, which would have been the preferred course,

but the purpose of doing so was, in fact, fulfilled, and plaintiff’s expert should

not have been excluded on a technicality.

      Our inquiry, however, does not end here. “Even if the trial judge abused

his or her discretion in making a decision to exclude evidence, we will overlook

the error as harmless unless a party’s substantial right was affected.” Polys,

941 F.2d at 1407. “After finding abuse of discretion, appellate courts have

nonetheless refused to reverse trial courts’ decisions to exclude deposition

testimony as harmless error if it would not have added anything to the evidence

presented.” Id. at n.3. Plaintiff’s counsel proffered the following expert

testimony to the district court: in the expert’s opinion and based upon his review

of the previous trial testimony and the documents and pleadings in the case, the

conditions of plaintiff’s confinement, specifically the continued deprivation of


                                          -6-
basic living necessities, constituted cruel and unusual punishment in violation of

the Eighth Amendment. The district court responded that it did not consider an

opinion as to whether plaintiff’s constitutional rights had been violated to be

admissible as expert testimony. The court stated that such a conclusion was for

the jury to make and “an expert’s testimony would not aid the jury in that

respect.” Appellant’s App., Ex. A at 309. Given the proffer of plaintiff’s counsel

regarding the nature of the excluded testimony, we cannot say that we disagree

with the district court’s assessment regarding admissibility. On the record before

us, 4 we hold that the district court’s abuse of discretion in excluding the testimony

was harmless error.

      Plaintiff next argues that he was entitled to judgment as a matter of law.

     We review de novo the district court’s determination of a motion for
     judgment as a matter of law, applying the same standard as the
     district court. Under this standard, judgment as a matter of law is
     warranted only if the evidence points but one way and is susceptible
     to no reasonable inferences supporting the party opposing the motion.
     We do not weigh the evidence, pass on the credibility of the
     witnesses, or substitute our conclusions for that of the jury.
     However, we must enter judgment as a matter of law in favor of the
     moving party if there is no legally sufficient evidentiary basis . . .
     with respect to a claim or defense . . . under the controlling law.
Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997)

(citations and quotations omitted) (alterations in original). We also construe

evidence and inferences therefrom in favor of defendant, the nonmoving party.


4
      The record on appeal contains only partial excerpts of the trial transcript.

                                         -7-
See Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir.

1997). The record before us, though incomplete, contains evidence that supports

the jury’s determination that defendants did not exhibit deliberate indifference in

violation of plaintiff’s constitutional rights. The district court did not err in

refusing to grant plaintiff judgment as a matter of law.

      Finally, plaintiff complains that the district court erred in admitting

evidence of prior bad acts. Documentation of the acts which plaintiff claims

should not have been admitted into evidence was contained in plaintiff’s prison

file. When defendants offered the file into evidence, plaintiff’s counsel stated

that there was no objection. We review the admission of evidence to which no

objection is made for plain error. See United States v. Wilson, 107 F.3d 774, 782

(10th Cir. 1997). “Plain error is that which is obvious, or which seriously affects

the fairness or integrity of the trial.” United States v. Enjady, 134 F.3d 1427,

1435 (10th Cir. 1998), petition for cert. filed, (U.S. June 22, 1998) (No. 985121).

Defendants represented to the court that they considered the contents of plaintiff’s

file in determining how long plaintiff was kept in the G-Unit. The court found

that the records were relevant for that purpose. We cannot say that the admission

of plaintiff’s file was plain error.




                                           -8-
     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




                                       -9-
