                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               OCT 14 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 TREVA L. JOHNSON

               Plaintiff - Appellant,

          v.                                                 No. 97-6315
                                                     (D. Ct. No. 96-CV-1049-T)
 HATHCOCK TRUCK LINES;                                      (W. D. Okla.)
 SAMMY T. OTWELL,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

      Plaintiff appeals from a final judgment entered by the district court in

accordance with a jury verdict for the defense. On appeal, plaintiff raises eleven



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
separate allegations of reversible error. We take jurisdiction under 28 U.S.C.

§ 1291 and affirm.

                                     Background

      Plaintiff Treva L. Johnson brought a personal injury action in the Western

District of Oklahoma pursuant to 28 U.S.C. § 1332 after she, heading north,

struck the end of defendants’ trailer as it made a left turn to head south. A four-

way stop sign marked the intersection where the accident occurred. Defendant

Sammy T. Otwell drove and defendant Hathcock Truck Lines owned the truck.

      Defendants maintain that the accident occurred because plaintiff, impaired

by alcohol, failed to stop at the intersection. Plaintiff denies any impairment.

Instead, she argues that she never saw the stop sign for any of several reasons:

1) it was bent over; 2) the reflective material was old and not properly operative;

3) the headlights of defendants’ truck were in her eyes; and/or 4) the trailer

blocked her view of the sign. In addition, plaintiff contends that Mr. Otwell

improperly cut the corner when turning, thereby placing the trailer in her lane of

traffic, and that the trailer’s running lights must have been inoperative for her not

to see the trailer. After a full trial, the jury returned a verdict for defendants.

This appeal followed. Additional essential facts will appear in our discussion of

each of the plaintiff’s individual claims below.

                                      Discussion


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I. Alleged Error No. 1: Improper Accusation of Perjury

         At the conclusion of defense counsel’s cross-examination of Mr. Mathews,

plaintiff’s rebuttal witness, he posed following question: “Do you know what

perjury is Mr. Mathews?” Plaintiff contends that the district court committed

reversible error by overruling her objection to this query. We disagree. Federal

Rule of Evidence 611 asserts that the trial court shall exercise control over the

mode and order of interrogating witnesses and presenting evidence. We will not

disturb the district court’s conduct of trial proceedings, including rulings on

motions and objections, unless the record affirmatively shows that it abused its

discretion. See Higgins v. Martin Marietta Corp.     , 752 F.2d 492, 498 (10   th
                                                                                    Cir.

1985).

         We find that the trial court did not abuse its discretion in overruling

plaintiff’s objection. Unlike the conduct in the 1920s cases upon which plaintiff

relies, this single question did not constitute such a “bitter and passionate” attack

on the witness so as to arouse the prejudice of the jury. Indeed, the question was

not even a direct charge of perjury.

         Additionally, we find that plaintiff suffered no prejudice from the timing of

the court’s ruling, which occurred immediately after Mr. Mathews had been

excused as a witness. Although plaintiff contends that she suffered prejudice

because the timing of the court’s ruling precluded any redirect examination of Mr.


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Mathews, the record is devoid of any indication that plaintiff desired redirect. In

fact, moments after excusing the witness and overruling the objection, the court,

at a bench conference, asked whether both parties now rested their cases.

Plaintiff answered yes. Thus, this court does not find that the ruling or actions of

the district court constitute reversible error.

II. Alleged Error No. 2 - Treatment of Witness Mr. Mathews

       A. Denial of Plaintiff’s Motion to Add an Expert

       Plaintiff next contends that the court erred in denying her motion to add

Mr. Mathews as an expert witness after submission of the final witness list. At

the time plaintiff prepared her list of expert witnesses, Mr. Mathews was

recuperating from heart surgery and unavailable to testify. Some five months

after filing her initial witness list, plaintiff submitted a motion for leave to add

Mr. Mathews to her expert list on June 2, 1997, after learning that Mr. Mathews

had returned to work. The district court denied her motion on June 9, 1997.

       Federal Rule of Civil Procedure 16(b) states that a “schedul[ing order] shall

not be modified except upon a showing of good cause and by leave of the district

judge.” Thus, the district judge has considerable latitude in determining whether

a scheduling departure is warranted. Moreover, the “admissibility of expert

testimony is within the broad discretion of the trial court and is reviewed for

abuse of discretion only.”   Curtis v. Oklahoma City Pub. Schs. Bd. of Educ.    , 147


                                           -4-
F.3d 1200, 1219 (10   th
                           Cir. 1998); see also, e.g. , Summers v. Missouri Pac. R.R.

Sys. , 132 F.3d 599, 603 (10    th
                                     Cir. 1997). Thus, the district court had broad

discretion as to whether plaintiff could add Mr. Mathews to her list of experts. It

did not abuse that discretion here.

      Plaintiff attempts to bolster her argument by claiming that because of the

delay of the pretrial proceedings and discovery, defendants would have had ample

opportunity to depose Mr. Mathews and therefore not be prejudiced by the

addition. We disagree. The conduct of the plaintiff and plaintiff’s counsel in this

case undoubtedly contributed to these delays. Plaintiff’s counsel failed to comply

with court orders to compel discovery and was nearly held in contempt. Plaintiff

also failed to appear for her scheduled deposition, for which she was sanctioned.

We refuse to reward such behavior by using it as an excuse to extend the deadline

for other discovery purposes.

      B. District Court’s Comments

      Plaintiff further alleges that the court committed reversible error by calling

Mr. Mathews a “so-called expert” in the presence of the jury, thereby

undermining his credibility, and by attempting to cut off plaintiff’s examination

of him. We disagree. Mr. Mathews was not called as an expert witness. Rather,

the record indicates that at a bench conference the court used its discretion, over

objection of the defense, to allow Mr. Mathews to testify only as a rebuttal


                                               -5-
witness. Because Mr. Mathews was not testifying as an expert, it is hard to see

how the court’s referral to him as a “so-called expert” undermines his credibility

as a lay witness. In any event, we find that this characterization does not

constitute reversible error.

      Furthermore, plaintiff’s additional complaint that the trial court

impermissibly attempted to cut off questioning has no merit. The trial court has

broad discretion to ensure that rebuttal testimony does not exceed fixed

boundaries. See United States v. Olivo , 80 F.3d 1466, 1470 (10   th
                                                                       Cir. 1996) (“A

trial court has broad discretion to admit or exclude rebuttal evidence.”). The

record indicates that the district court merely prevented plaintiff from questioning

Mr. Mathews about matters beyond the permissible scope of rebuttal.

III. Alleged Error No. 3: Bias of Trial Court

      This court takes an allegation of bias on the part of a district court judge

very seriously. In this case, we find the claim completely unfounded.

      On June 30, 1997, the magistrate judge ordered plaintiff to produce all

medical records relating to the accident. Plaintiff’s counsel produced the records,

but made approximately twenty to twenty-five redactions. Defendants moved to

compel production of the deleted portions. The district court granted this request

on July 22, 1997, and directed plaintiff’s attorney to produce the unredacted

records no later than 5:00 pm on Thursday, July 24, 1997. Plaintiff’s counsel


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again refused to properly produce the documents, and on July 25, 1997, the trial

court ordered a contempt hearing for July 29, 1997, to give plaintiff’s counsel an

opportunity to show cause why he had not obeyed the order. Plaintiff’s claim of

bias rests primarily on comments made by the district court at this contempt

hearing.

      During the contempt hearing, the court rebuked plaintiff’s counsel for

attempting to extend the time of the discovery order despite the clear July 24

deadline. The court also noted that counsel’s conduct had impeded the case and

distracted the court from other pressing matters. It further commented upon

counsel’s lack of familiarity with the rules of the court and applicable statutes in

the case, but did state that it was “not too late to redeem” himself. None of these

comments show prejudicial bias.

      Plaintiff also points to six additional items that she claims evidence bias on

the part of the court during the trial. The first four concern the district court’s

supervision of the direct and cross-examination of Mr. Mathews, discussed above.

The last two points occurred during the direct examination of Damon Smoot, an

expert witness and former truck driver. During the examination, plaintiff alleges

the district court improperly “cut off” Mr. Smoot’s testimony regarding two

critical issues. After a careful review of the record, we find that none of these

additional items suggest district court bias.


                                          -7-
      In sum, we find that the record reveals no bias in the conduct of the judge

before or during trial. To the contrary, the record reflects the district court’s

unflagging efforts to ensure that all parties received a fair trial.

IV. Alleged Error No. 4: Trial Court’s Conduct During Plaintiff’s Closing
Argument

      Plaintiff contends that the lower court committed reversible error by

admonishing her counsel during closing arguments. We disagree. The trial judge

maintains considerable discretion in supervising arguments of counsel.          See

Ramsey v. Culpepper , 738 F.2d 1092, 1100 (10       th
                                                         Cir. 1984). It is not an abuse of

the court’s discretion to interrupt closing arguments and administer mild

admonitions to correct an apparently improper argument.           See United States v.

Rosenfeld , 545 F.2d 98, 103 (10   th
                                        Cir. 1976). During a lengthy bench conference,

counsel for both sides agreed to stipulate that plaintiff had not been prosecuted

for driving under the influence (DUI) or while intoxicated (DWI). Plaintiff’s

counsel violated this stipulation during his closing argument by stating that his

client had not been   charged with DUI or DWI. The trial court corrected counsel

by declaring that his statement was improper and contrary to the stipulation, and

advised the jury to disregard it. Immediately after this correction, plaintiff’s

counsel again declared that his client had not been charged. Noting that counsel

had violated the stipulation twice within a minute and a half, the court advised

counsel that under the precise terms of the agreement, he should have stated

                                             -8-
“prosecuted” rather than “charged.” This conduct falls well within the court’s

discretion of supervising arguments.

V. Alleged Errors Nos. 5 & 6: Jury Instructions

       Plaintiff argues that the district court erred in failing to instruct the jury

that backing across an intersection constitutes negligence per se and that it erred

in not giving a specific instruction on the issue of making an improper turn. We

disagree. The “admission or exclusion of a particular jury instruction is within

the sound discretion of the trial court.”   Okland Oil Co. v. Conoco, Inc.   , 144 F.3d

1308, 1324 (10   th
                      Cir. 1998). In addition, we conduct a de novo review of the

instructions to determine whether, as a whole, they accurately stated “the

governing law and provided the jury with an ample understanding of the issues

and applicable standards.”      Id.

       We find that the trial court did not commit reversible error in failing to

instruct the jury that backing across an intersection is negligence per se. Given

the scant evidence in the record indicating that defendant Otwell backed his truck

across an intersection, the trial court did not err in refusing to give plaintiff’s

proffered instruction, nor were the instructions as a whole misleading or

incomplete due to this omission.

       We further hold that the court did not err by failing to giving a specific

instruction regarding an improper turn. First, plaintiff admits that she did not


                                            -9-
object to the omission. Second, plaintiff admits that this “may not be reversible

error standing alone.” Appellant’s Br. at 36-37. Third, nothing in the record

indicates that plaintiff requested any particular instruction dealing with this issue.

Finally, failure to instruct the jury regarding the alleged improper turn did not

make the instructions as a whole inaccurate or misleading.

VI. Alleged Error No. 7: Dismissal of Prospective Juror

       Plaintiff contends that the district court committed reversible error by

dismissing a prospective juror, a retired truck driver, despite his assertion that he

could be fair and objective. We disagree. The district court has the duty and

authority to dismiss jurors for cause.    See 28 U.S.C. § 1870 (“All challenges for

cause or favor, whether to the array or panel or to individual jurors, shall be

determined by the court.”). Considering that the entire case hinged upon the

negligence of a truck driver, the district court certainly did not abuse its

discretion when it dismissed a juror with thirty-two years of truck driving

experience. In any event, plaintiff apparently failed to object to the discharge of

the juror and therefore did not properly preserve the issue for review.    See

Vanskike v. ACF Indus. , 665 F.2d 188, 207 (8       th
                                                         Cir. 1981).

VII. Alleged Error No. 8: Issuance of Subpoenas Duces Tecum Without
Notice

       Plaintiff argues that the issuance of seventeen subpoenas duces tecum by

defendants’ counsel without notice to plaintiff constitutes a violation of her

                                           - 10 -
constitutional right to privacy under the Fourth Amendment, a violation of

physician-patient privilege, and a violation of Rule 45 of the Federal Rules of

Civil Procedure. Plaintiff notes that “the remedy to plaintiff at this point is

monetary sanctions . . . and an order for defendants’ attorney to return [the

improper discovery material with a signed affidavit stating] that no copies will be

retained.” Appellant’s Br. at 43. Because the district court has previously

ordered that defendants return all records obtained by the improper subpoenas in

its June 30, 1997, order and plaintiff makes no assertion that defendant failed to

comply with this directive, we do not address that request.

       This court will reverse the denial of monetary discovery sanctions only if it

finds that the district court abused its discretion.       See, e.g. , Gomez v. Martin

Marietta Corp. , 50 F.3d 1511, 1519 (10       th
                                                   Cir. 1995); Ehrenhaus v. Reynolds , 965

F.2d 916, 920 (10    th
                          Cir. 1992). The record indicates that the district court

undertook a careful inquiry of the issues raised by plaintiff and made a detailed

decision in its order of June 30, 1997. The court stated:

       Defense counsel claims that the lack of notice to Plaintiff’s counsel
       was a clerical oversight, and although Plaintiff’s counsel does not
       agree, he offers no evidence otherwise. Defense counsel further
       claims that when the error was discovered, attempts were made to
       remedy the situation by providing Plaintiff with copies of all
       documents received and offering to provide copies to Plaintiff’s
       counsel notifying parties in writing to disregard subpoenas if no
       response had been made; offering to agree to a protective order with
       respect to the documents; placing the documents received in a
       separate file and agreeing not to read them; acknowledging the

                                              - 11 -
       mistake and apologizing; and taking corrective measures to prevent a
       reoccurrence.

The court concluded:

       Because the undersigned finds neither deliberate action on the part of
       the Defendants nor serious prejudice or damage to Plaintiff,
       Plaintiff’s motion is denied for suppression of evidence and other
       sanctions with the exception that defense counsel are ordered to
       return any records obtained by the subpoenas which have not been
       returned to the producer of such records.

We cannot find that the district court abused its discretion in its handling of this

matter.

VIII. Alleged Error No. 9: Sanctions Against Plaintiff

       Plaintiff argues that she should not have been sanctioned by the district

court for her failure to appear at a noticed deposition on May 27, 1997. We

disagree. As noted above, we “review rulings on discovery sanctions for abuse of

discretion in light of the totality of the circumstances.”   Gomez , 50 F.3d at 1519.

We find that the district court did not abuse its discretion in awarding defendants

their attorneys’ fees and costs for the failure of plaintiff to appear at the noticed

deposition. There is ample evidence in the record to support the district court’s

conclusion that defendants did not violate their agreement to “try” to set

deposition by agreement rather than notice, including the district court’s

recognition of five separate letters that span the months of January to May in

which defense counsel requested convenient deposition dates. Therefore, the


                                             - 12 -
sanctions set by the district court will stand.

IX. Alleged Error No. 10: Independent Medical Exam

       Plaintiff next claims that the trial court erred in ordering her to appear at an

independent medical examination. As plaintiff notes, given that no examination

occurred, this issue is pertinent only if this court decides to reverse and remand

the case for a new trial. Because we affirm, we need not address this issue.

X. Alleged Error No. 11: Order to Compel

       Finally, plaintiff contends that the trial court erred in ordering the

production of unredacted medical records stemming from the accident and

sanctioning plaintiff’s counsel for failing to timely submit them. Plaintiff asserts

that under Nitzel v. Jackson , 879 P.2d 1222 (Okla. 1994), portions of the report

were not discoverable. In its order compelling production of the unredacted

medical records, the district court found plaintiff’s reliance on    Nitzel misplaced

because medical records pertaining to the night of the accident were relevant, not

privileged, and discoverable.

       We review de novo the district court’s determination of state law and the

corresponding scope of privilege.       See Frontier Ref., Inc. v. Gorman-Rupp Co.   ,

136 F.3d 695, 700 (10    th
                              Cir. 1998). We agree with the district court that no

privilege existed to support the plaintiff’s redaction of the medical records. In

our view, the Nitzel court sought simply to ensure the relevancy of discovered


                                             - 13 -
material and prevent “fishing expeditions.” 879 P.2d at 1223 & n.*. The

Oklahoma Supreme Court’s recognition that a tort plaintiff’s patient-physician

privilege applies to information unrelated to her claim underscores the court’s

primary concern with relevancy as it relates to waiver of privilege.   See id.

(finding that filing a personal injury claim does not require a plaintiff “to execute

a general medical authorization entitling the defendant to obtain all of the

plaintiff’s medical records”). Here, plaintiff’s counsel redacted medical reports

from the night plaintiff was injured. These records were undoubtedly relevant to

plaintiff’s personal injury claim because they reveal her physical condition

immediately following the accident. We find that plaintiff’s waiver of the

physician-patient privilege by filing this personal injury action extends to these

relevant medical records. Therefore, the district court was correct to compel their

production.

       Finally, we uphold the sanctions against plaintiff’s counsel for failing to

produce the records when ordered by the magistrate judge. The trial court did not

abuse its discretion in this regard.

                                       Conclusion

       Based upon the foregoing conclusions, we find no reversible error and

AFFIRM.




                                           - 14 -
ENTERED FOR THE COURT,


Deanell Reece Tacha
Circuit Judge




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