                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 27, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
PAHOUA XIONG,

      Plaintiff - Appellee /
      Cross-Appellant,
                                                      Nos. 14-1390 & 15-1035
v.                                                 (D.C. No. 1:12-CV-01546-RBJ)
                                                             (D. Colo.)
KNIGHT TRANSPORTATION, INC.,

      Defendant - Appellant /
      Cross-Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________

      In May 2009, a car driven by Pahoua Xiong was merging onto Interstate

Highway 76 when it collided with a Knight Transportation truck. Testimony differed

dramatically as to whether Knight’s truck occupied the right lane of the Interstate

when the collision occurred or Xiong had completed her merge and it occurred when




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
the truck moved from the middle lane to the right. The collision forced Xiong’s car

into the median where it overturned multiple times.

      The jury apportioned fault at 40 percent to Xiong and 60 percent to Knight; its

allocation of fault is not at issue here. Knight claims: (1) its motion for new trial

(insufficient evidence to support the jury’s award of damages) should have been

granted, and (2) evidence regarding a similar lawsuit brought by Xiong (another

collision) ought not to have been limited. The second suit involved injuries she

suffered in a September 2010 car accident. Xiong cross-appeals from the denial of

her motion for costs under Colo. Rev. Stat. § 13-17-202. We affirm.1

                                            I

                                            A

      Xiong suffered a compression fracture in her spine at T-11 (lower middle

back) as a result of the accident. She was in the hospital for five days. Her doctors

encouraged physical therapy but Xiong failed to follow through. Instead, she

repeatedly and successfully sought painkillers. Some evidence suggested her

subjective complaints of pain were not supported by objective manifestations of

injury, such as a limited range of motion. But other evidence — mostly her

testimony and that of her family members — indicated her activities were limited by

the injuries. In May 2010, she visited a clinic for unrelated reasons and reported her

pain level to be 2 (on a 10-point scale). A month later, however, she reported


      1
          Our jurisdiction derives from 28 U.S.C. § 1291.

                                            2
level-10-pain and a need for Percocet, which was prescribed. By July, she claimed to

be taking 5 to 6 Percocet tablets a day, but a drug test revealed no opiates in her

system. Her physician’s assistant (PA) found the anomaly to be “contradictory.”

Aplt. App. Vol. 2 at 499.

      As a result of Xiong’s September 2010 motor vehicle accident, she filed a

second lawsuit. As with the cause of the collision, testimony conflicted over whether

the second accident exacerbated her injuries from the first. The testimony of the PA

treating her after the second accident attributed only 20% of her pain to the second

accident and predicted she will experience lasting limitations in her work and social

activities. The orthopedic surgeon she called testified to her need for surgery to fix

the T-11 issues and credited that need directly to the first accident. The

recommended surgery had not been done at the time of this trial; Xiong told the jury

she could not afford it. Conversely, an orthopedic spine surgeon called as an expert

by Knight, Dr. Brian Reiss, said his examination of Xiong revealed her fracture to be

well-compensated for by the rest of her spine and, without the second accident, the

only course of necessary treatment would have been an exercise program.

      In total, Xiong sought $95,108.67 in medical expenses, detailed in her

compilation of medical expenses, which was admitted as an exhibit. In tabulating the

expenses, she alone decided what medical bills pertained only to the second accident

and removed them from the compilation. A medical billing specialist put the cost of

the recommended spinal surgery at $173,673.10. On this state of the evidence and

more, the jury awarded Xiong $832,000, consisting of $282,000 for pain and

                                            3
suffering, $268,000 for economic loss including past and future medical expenses,

and $282,000 for physical impairment. In accordance with its determination on fault,

the jury reduced these awards by 40 percent, resulting in a net $499,200 pre-interest

verdict.

       After the trial, a paralegal employed by Knight’s counsel found a photograph

of Xiong on her cousin’s Facebook page, which led to the discovery of photographs

of Xiong smiling with friends at homes, restaurants, a wedding, and what appear to

be clubs, as well as what appears to be on a trip to Las Vegas. 2 Aplt. App. Vol. 1

at 162–84. Knight moved for a new trial, and later hired a private investigator to

follow Xiong and record her daily activities.

       In Knight’s new trial motion, it claimed there was insufficient evidence to

support the jury’s determination of damages and the new evidence (discovered after

trial) showed Xiong to have perpetrated fraud on the court. In a thorough opinion,

the district judge denied the motion. The jury “certainly could have assigned lower

dollar values” to Xiong’s pain and impairment, he said, but Knight’s argument that

the verdict was wholly unsupported by the record was unpersuasive. Xiong v. Knight

Transp., Inc., 77 F. Supp. 3d 1016, 1021–22 (D. Colo. 2014). He then addressed

Knight’s three bases for its argument: (1) an affidavit of Knight’s counsel detailing a

number of witnesses who testified to Xiong’s lack of pain or impairment; (2) one

medical record; and (3) the Facebook photographs found by a Knight’s paralegal

       2
        Apparently, the photographs were theretofore unknown to Knight because
Xiong’s Facebook page is under “Pahouna Xiong” instead of “Pahoua Xiong.”

                                           4
(discussed above). The judge was not impressed with Counsel’s affidavit

summarizing the evidence, saying such a summary was not the “appropriate way to

call the Court’s attention to trial testimony,” as it included no citations to the trial

transcript. Id. at 1022. And, he noted, the single medical record Knight attached did

not assign severe pain to Xiong at the time, but the doctor nevertheless assessed her

with chronic pain due to injuries at T-11. He also rejected Knight’s suggestion of

unnecessary surgery, (because Xiong had yet to have it done) based on the

impecunious circumstances she related in her trial testimony. Finally, as to the social

media photographs, which did “little to support [Knight] in any event,” he concluded

the new evidence could have been discovered before trial and Knight offered no

justification for its failure to develop it earlier. Id. at 1022–23. Addressing Knight’s

alternative request for remittitur, he observed that the jury was properly instructed,

without objection, on how it should treat the damage evidence as to each of the

accidents as well her (claimed) failure to mitigate damages.

                                             B

       During opening statements, Knight’s counsel attempted to speak about the

second accident and the resulting lawsuit to recover damages from those defendants.

Xiong’s objection to the mention of the second complaint being filed was overruled.

At the end of the day, Xiong renewed her objection to mentioning the specifics of the

second lawsuit, arguing such information was irrelevant to the jury’s determination in

this case and any probative value was outweighed by its prejudicial effect under

Federal Rule of Evidence 403. In the ensuing colloquy, Knight’s position was

                                             5
revealed — the specifics of the second lawsuit were relevant as to the “motive of the

witness,” specifically “to show that she’s a suit filer.” Aplt. App. Vol. 2 at 281. This

time the judge sustained the objection, saying “all they need to know is that there’s

another accident and there’s another lawsuit, and that will be where we stop.” Id.

                                            C

       Xiong moved for $40,216.07 in actual costs under Colo. Rev. Stat.

§ 13-17-202, which allows a plaintiff to be awarded costs if she makes a timely

settlement offer lower than the final judgment. On May 28, 2014, about two years

into the litigation, Xiong’s counsel sent an email to Knight’s counsel addressing a

number of subjects. It included this phrase: “I want to provide you with a demand

and follow up with you on a couple of stipulations. My client has given me the

authority to make a demand to settle her case for $675,000.00.” Aplt. App. Vol. 1

at 114. Counsel then went on to discuss mediations and stipulations. The judge

denied Xiong’s motion for costs because the passive voice used in the “offer,” along

with the lack of a request for a response, indicated the absence of a settlement offer

for purposes of the costs statute.

                                            II

       According to Knight the evidence is insufficient to support (1) the $282,000

awards for pain and suffering and physical impairment, (2) all of Xiong’s past

medical expenses (because some should be attributed to the second accident), and

(3) the estimated costs of future medical expenses relating to the anticipated surgery.

Knight also thinks it is entitled to a new trial in light of the new evidence it

                                             6
presented. Finally, Knight maintains evidence about Xiong’s other lawsuit should

have been allowed. We cannot agree with any of those propositions.

                                            A

       We review the denial of a motion for new trial or remittitur for a manifest

abuse of discretion. Blanke v. Alexander, 152 F.3d 1224, 1235–36 (10th Cir. 1998).

Defendants “bear the heavy burden of demonstrating that the verdict was clearly,

decidedly, or overwhelmingly against the weight of the evidence.” Id. at 1236

(internal quotation marks omitted). “Under this standard, the jury’s award is

inviolate unless we find it so excessive that it shocks the judicial conscience and

raises an irresistible inference that passion, prejudice, corruption, or other improper

cause invaded the trial.” M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 766

(10th Cir. 2009) (internal quotation marks omitted). “A district court abuses its

discretion in ordering a remittitur when the size of the verdict turns upon conflicting

evidence and the credibility of witnesses.” Prager v. Campbell Cty. Mem’l Hosp.,

731 F.3d 1046, 1061–62 (10th Cir. 2013) (internal quotation marks omitted).

       To be sure, Knight’s arguments raise questions about the severity of Xiong’s

injuries. Substantial record evidence would support either a favorable or unfavorable

view of them, especially under our very deferential abuse-of-discretion standard. See

Prager, 731 F.3d at 1054 (“[I]n many cases there will be a range of possible

outcomes the facts and law at issue can fairly support; . . . we will defer to the district

court’s judgment so long as it falls within the realm of these rationally available

choices.” (internal quotation marks omitted)).

                                            7
       In challenging the $282,000 award for pain and suffering and physical

impairment, Knight goes on at great length, pointing to evidence demonstrating the

absence of significant pain. But, unlike economic-loss or expense damages, “general

damages for pain and suffering, such as those [at issue] here, are not susceptible to

proof by a set dollar amount.” Blanke, 152 F.3d at 1237. Our standard for

pain-and-suffering damages is even more deferential than our standard for economic

damage determinations. The jury heard the evidence Knight cites, but it also heard

Xiong’s contrary testimony about the great pain she suffered at various times after

the first accident. Add to that the pain testimony of her doctors. The trial judge took

note of the competing evidence. The award is not so excessive as to raise an

inference of passion, prejudice, or impropriety, and thus does not shock our

collective conscience.

       As for the physical impairment damages, Knight essentially argues:

(1) Xiong’s impairment was not very severe and (2) it was made worse by her failure

to take remedial steps, such as physical therapy. Any failure to mitigate damages is

an affirmative defense, about which the jury was instructed. But Knight does not

(and did not) challenge the instructions. As we are unable to find fault in the jury’s

determination with respect to these damages, we have no reason to second guess the

trial judge’s refusal to order a new trial or a remittitur.

       In challenging the $268,000 in economic damages for medical expenses,

Knight takes issue with the medical necessity of the future spinal surgery. Its

argument can be simply stated: Xiong has not had the surgery, so it must not be

                                             8
medically necessary and, accordingly, cannot be included in future medical expenses.

Knight also tells us any reasonable person would elect conservative management,

calling for physical therapy before having back surgery. Such is a failure-to-mitigate

argument about which the jury was instructed. As the trial judge noted, “insofar as

the defendant alleges that [Xiong] is not in pain because she has not had the surgery,

[Xiong] was questioned about this alleged discrepancy at trial. The plaintiff

explained that she did not elect to have the surgery because she was unable to afford

it.” Xiong, 77 F. Supp. 3d at 1022. We see no legal reason to reverse his decision.

Xiong’s failure to undergo recommended surgery has little to do with its medical

necessity, especially in light of her testimony about her impecunious circumstances.

According to trial testimony, her orthopedic surgeon thought the surgery would be

helpful while Knight’s expert considered it to be unnecessary. The jury had

divergent evidence from which to choose in deciding an issue committed to its

judgment. We see no proper reason to disturb it.

       Knight also complains about the evidence pertaining to Xiong’s past medical

expenses, claiming: for the medical expenses occurring after the second accident,

some records are too ambiguous to permit an assignment to the first or second

accident and, because Xiong has the burden of proof, they cannot properly be

attributed to the first accident. But it did not raise the argument to the district judge.3


       3
         Though we may entertain forfeited theories on appeal if the district court’s
decision is “plainly erroneous,” Richison v. Ernest Grp., 634 F.3d 1123, 1128
(10th Cir. 2011), Knight has failed to argue plain error, which “marks the end of the
                                                                           (continued)
                                             9
See Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f the theory

simply wasn’t raised before the district court, we usually hold it forfeited.”). Aplt.

App. Vol. 2 at 323–25.

      In challenging the district court’s decision regarding the post-trial Facebook

photographs, Knight argues it should have been granted a new trial because the “new

evidence” shows Xiong’s vitality and physical condition to be inconsistent with her

trial testimony. To obtain a new trial based on newly discovered evidence, “the

moving party must show: (1) the evidence was newly discovered since the trial;

(2) the moving party was diligent in discovering the new evidence; (3) the newly

discovered evidence was not merely cumulative or impeaching; (4) the newly

discovered evidence is material; and (5) that a new trial with the newly discovered

evidence would probably produce a different result.” Dronsejko v. Thornton,

632 F.3d 658, 670 (10th Cir. 2011) (internal quotation marks omitted). The district

judge correctly found the “new evidence” to offer little support for Knight’s

road” for an argument not presented to the district court, Folks v. State Farm Mut.
Auto. Ins. Co., 784 F.3d 730, 741 (10th Cir. 2015) (internal quotation marks omitted).
       Knight complained only, and without elaboration, about the jury’s failure to
apportion damages between the first and second accidents despite being instructed to
do so. Aplt. App. Vol. 1 at 148–49. The forfeiture issue aside, Knight does not
provide sufficient reason to believe the jury did not follow its instructions on
apportionment. Instead, it calls on us to engage in undifferentiated speculation — the
$268,000 award must mean the jury did not reduce any of Xiong’s damages with the
second accident in mind. Xiong testified to having removed from the
medical-expense exhibit any expenses pertaining solely to the second accident.
Admittedly, her testimony requires a somewhat of leap of faith and there is good
reason to be skeptical. A jury might well be persuaded to reject it, but it was not
beyond the pale for it to do otherwise. There was no abuse of discretion by the trial
judge, even on merits of the issue.

                                           10
argument and comes too late even if it could be said to contradict Xiong’s claims.

Indeed, it could have been discovered before trial. Knight credibly claims a lack of

knowledge about Xiong’s Facebook page (her name was misspelled) until her cousin

posted a photograph of them together after the trial. But that affords Knight cold

comfort; the photographs are ambiguous at best and, at worst, immaterial. The meat

of Knight’s “new evidence” is the report of the private investigator it neglected to

hire until after it moved for a new trial. The district judge found no reason for

Knight’s delay in having Xiong surveilled at any point before or during trial when it

surely would have been relevant. We agree. Whether this omission was a tactical

decision or oversight, it was hardly diligent. There was no abuse of discretion.

                                           B

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

evidence . . . for abuse of discretion.” Prager, 731 F.3d at 1054. “A district court

abuses its discretion when it renders an arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” Ralston v. Smith & Nephew Richards, Inc.,

275 F.3d 965, 968 (10th Cir. 2001) (internal quotation marks omitted). We will

reverse the district court’s decision “only if the court exceeded the bounds of

permissible choice, given the facts and the applicable law in the case at hand.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (internal quotation

marks omitted). Rule 403 permits relevant evidence to be excluded if its probative

value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.



                                           11
      As an initial matter, Xiong argues this issue was not adequately presented to

the district court because the district judge excluded the second lawsuit on an

objection to Knight’s opening statement, which was not the introduction or

presentation of evidence. In our reading of the colloquy, though, it is clear the

district court proscribed the subject matter of the second lawsuit on a wholesale basis

for the remainder of trial and did not limit its ruling to the lawsuit’s mention in the

now-completed opening statement. See Aplt. App. Vol. 2 at 279–81. Knight

nevertheless insists the second lawsuit is relevant and the district court abused its

discretion. We disagree. In the colloquy, Knight’s ultimate justification for getting

into the second lawsuit was to show Xiong was a “suit filer,” which is, in essence, an

admission that Knight sought the precise prejudicial effect Xiong argued would

pollute the jury’s consideration. The district court was well within its discretion to

keep such contaminating details away from the jury, and cannot be said to have

“exceeded the bounds of permissible choice” in this case. See McComb, 519 F.3d

at 1053.

                                           III

      Under Colorado law, a plaintiff who “serves an offer of settlement in writing”

more than fourteen days before trial that is rejected by the defendant, and “the

plaintiff recovers a final judgment in excess of the amount offered, the plaintiff shall

be awarded actual costs accruing after the offer” to be paid by the defendant.

Colo. Rev. Stat. § 13-17-202(1)(a)(I). Such an award is mandatory and

nondiscretionary in many respects. Scholz v. Metro. Pathologists, P.C., 851 P.2d

                                           12
901, 910 (Colo. 1993). Colo. Rev. Stat. § 13-17-202 applies in diversity actions and

is not preempted by the federal rules. Garcia v. Wal-Mart Stores, Inc., 209 F.3d

1170, 1176–79 (10th Cir. 2000). The statute does not require any particular form for

an “offer of settlement” and an offer need not be expressly entitled “settlement

offer.” Dillen v. HealthOne, LLC, 108 P.3d 297, 301 (Colo. App. 2004). A denial of

costs is normally reviewed for an abuse of discretion, but we review a

nondiscretionary interpretation of a state statute regarding costs de novo. See Stauth

v. Nat’l Union Fire Ins. Co., 236 F.3d 1260, 1263 (10th Cir. 2001).

      In addressing Xiong’s motion for actual costs, the trial judge could find no

enumerated standard for what the Colorado statute contemplates an “offer of

settlement” to be, and concluded counsel’s statement was not a settlement offer

because it did not solicit an acceptance, it backwardly stated in passive voice he has

been given authority to settle for $675,000, and it did not request Knight’s counsel

respond to the settlement figure while there is an express invitation to discuss his

position on mediation.

      Reliance on counsel’s failure to solicit an acceptance may be an inappropriate

contract-law principle as here applied. See Centric-Jones Co. v. Hufnagel, 848 P.2d

942, 946 (Colo. 1993) (Section 13-17-202 “invokes a special statutory process

spelled out in clear and unambiguous language which can and should be enforced

without grafting contract principles onto it.”). But the other bases for the denial are

valid — the use of passive voice and counsel’s juxtaposition of an invitation to

respond about mediation with no invitation to do anything about the “demand.”

                                           13
See Sumerel v. Goodyear Tire & Rubber Co., 232 P.3d 128, 133 (Colo. App. 2009)

(even where unequivocal language suggests an offer is intended, such language

cannot be viewed in isolation from other language). To be sure, the email is

ambiguous, but the district judge applied the plain meaning of “offer” to the letter in

accordance with Colorado law. See Hufnagel, 848 P.2d at 947 (holding offers under

the statute should be construed with their ordinary meaning as a “matter of plain

statutory interpretation”).

       Xiong argues the judge’s analysis is tantamount to requiring specific language

or formalities where the statute imposes none, but “that does not mean that any

mention of a demand constitutes an offer of settlement.” Xiong, 77 F. Supp. 3d at

1028 (emphasis in original). The judge’s discussion about passive voice does not

amount to the imposition of an extra-statutory requirement. To the contrary, it asks a

potent question: Was there an offer? Do the words suggest a genuine offer or merely

a carefully crafted illusion? Is the putative offer firm or is it only an invitation to

further negotiate? Dealing with uncertainty is one of the greatest challenges facing a

judge or jury. The ambiguity of the email cries out for careful analysis and context

matters. In the end and in the aggregate, the trial judge considered it too ambiguous to

qualify as an offer. Counsel’s statement that he had authority to make a settlement

demand for a stated amount is not the same thing as actually making one, particularly in

the context presented here. See Yeiser v. Ferrellgas, Inc., 214 P.3d 458, 463

(Colo. App. 2008) (“[T]he offer of settlement must be sufficiently definite to allow the

plaintiff to weigh the risks and benefits of the offer against the judgment that may be

                                            14
obtained.” (internal quotation marks omitted)), reversed on other grounds by 247 P.3d

1022 (Colo. 2011). The relevant statute may impose no particular form or language for a

settlement offer, but it does require a genuine offer. We cannot say the trial judge’s

analysis was erroneous. Clear language deployed in simple, declarative sentences

might have made all the difference. Aside from the generic assertion that formalities

not contained in the statue are forbidden, Xiong cites no authority suggesting the trial

judge’s interpretation of the statute is unsound. We see no reason to reverse.

                                           IV

      We affirm in all respects.


                                             Entered for the Court


                                             Terrence L. O’Brien
                                             Circuit Judge




                                            15
