                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       August 10, 2005
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LOUISE SAWYER,

             Plaintiff - Appellant,

    v.                                                 No. 04-3109
                                               (D.C. No. 01-CV-2385-KHV)
    SOUTHWEST AIRLINES                                   (D. Kan.)
    COMPANY,

             Defendant - Appellee.


    GRACE M. FULLER,

             Plaintiff - Appellant,
                                                          04-3110
    v.                                         (D.C. No. 01-CV-2386 KHV)
                                                         (D. Kan.)
    SOUTHWEST AIRLINES
    COMPANY,

             Defendant - Appellee.


                          ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases

are therefore ordered submitted without oral argument.

       Plaintiffs-appellants Louise Sawyer and Grace M. Fuller are sisters and

African Americans. Plaintiffs arrived at the departure gate for a Southwest

Airlines (Southwest) flight from Las Vegas, Nevada, to Kansas City, Missouri.

Because plaintiffs checked in less than ten minutes prior to departure, they were

placed as priority-standby passengers on Southwest’s next flight to Kansas City.

       After all non-standby passengers boarded the airplane, plaintiffs were

allowed to board. While plaintiffs looked for open seats, a flight attendant

announced: “Eenie, meenie, minie, mo, pick a seat, we gotta go.”

       Plaintiffs claimed that the announcement referred to a nursery rhyme with a

racist history, and was directed specifically at them as African Americans because

they were the only passengers in the aisle and who had not found seats. Plaintiff

Fuller, who is epileptic, claimed that she suffered a petit mal seizure during the

flight as a result of the announcement. She also claimed that she suffered a grand

mal seizure that evening at home, leaving her bedridden for several days.

Plaintiff Sawyer did not allege any physical symptoms, and like plaintiff Fuller,

she did not seek any psychiatric or psychological counseling.


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      Southwest’s flight attendant characterized the comment as a general

announcement to all passengers, and denied that it was directed solely at

plaintiffs. She also denied any knowledge of a racist version of the nursery

rhyme, and claimed that she had previously used the same rhyme as humor and to

meet departure schedules.

      Plaintiffs sued Southwest for violation of their civil rights under 42 U.S.C.

§ 1981 and for intentional infliction of emotional distress under Kansas law.

Additionally, plaintiff Fuller sued for negligent infliction of emotional distress

under Kansas law. The district court entered summary judgment for Southwest on

the emotional distress claims. A jury returned a verdict in favor of Southwest on

plaintiffs’ claims under 42 U.S.C. § 1981.

      Plaintiffs raise several issues on appeal relating to jury selection, their

expert witness, the summary judgment orders, and alleged judicial misconduct.        1



For the reasons below, we find no error and affirm.

                                    Jury Selection

      With respect to jury selection, plaintiffs claim for the first time on appeal

that because there were no African Americans on the jury, they were denied a fair

trial under Batson v. Kentucky , 476 U.S. 79 (1986).    Batson , however, does not



1
 The district court appointed counsel to represent plaintiffs. Following the trial,
plaintiffs’ lawyers withdrew. Plaintiffs appear pro se in this court.

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entitle a party to a jury of a particular racial makeup.     Id. at 85. Instead, Batson

prohibits a party’s use of peremptory challenges to exclude jurors based upon

their race.   2
                  Id. at 89.

       Setting aside this misapprehension of        Batson , plaintiffs never raised a

Batson challenge in the district court. Therefore, there is no evidence as to the

racial composition of the jury or that Southwest excluded African-American

jurors. Because there is no record from which this court can assess plaintiffs’

claim of error, we affirm.     See United States v. Esparsen,     930 F.2d 1461, 1466

(10th Cir. 1991) (the burden of creating a record of relevant facts concerning a

Batson challenge belongs to the objecting party).

       Plaintiffs also claim that the district court erred by refusing to strike five

prospective jurors for cause based on their responses that there are too many

lawsuits. Additionally, with respect to two of these five jurors, plaintiffs argue

that they should have been disqualified because one had heard something about

the case, and the other had been the subject of a race-discrimination complaint.

       A district court’s denial of a motion to strike a juror for cause is reviewed

for an abuse of discretion.     Vasey v. Martin Marietta Corp.,      29 F.3d 1460, 1467




2
 The holding of Batson, which was a criminal proceeding, has been expanded to
civil trials. Edmonson v. Leesville Concrete Co. , Inc ., 500 U.S. 614, 616 (1991);
Hurd v. Pittsburg State Univ ., 109 F.3d 1540, 1546 (10th Cir. 1997).

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(10th Cir. 1994). Further, a challenge for cause will be granted only if a

prospective juror shows actual bias or prejudice.    Id. at 1467.

       During voir dire, these prospective jurors stated that they could follow the

court’s instructions and render a fair verdict. Significantly, in ruling on

plaintiffs’ challenges for cause, the district court specifically found that the jurors

appeared candid and impartial.   3
                                     Based on our review of the record, the court did

not abuse its discretion.

       Plaintiffs next claim that they were denied a fair trial because the district

court failed to allow them to be present during peremptory challenges. There is

nothing in the record to support this argument.

       At the conclusion of voir dire and after ruling on plaintiffs’ challenges for

cause, the district court excused the jury panel and announced a recess for

peremptory challenges. Rather than staying in the courtroom to participate,

plaintiffs apparently decided to go to the restroom. Although the record does not

reveal when plaintiffs left the courtroom or when they returned, following the

recess the record shows that the proceedings were in open court, “with all parties

present.” The clerk read the names of the jurors selected to serve, plaintiffs’

lawyers stated that there were no further objections to the composition of the jury,


3
 Plaintiffs also argue that there were additional grounds for striking certain jurors
for cause. However, because plaintiffs did not raise these challenges in the
district court, they are waived.  See United States v. Diaz-Albertini , 772 F.2d 654,
657 (10th Cir. 1985).

                                            -5-
and the trial proceeded. Clearly, plaintiffs were not denied the right to

participate.

                                    Expert Witness

      Plaintiffs argue that they were prevented from calling their expert witness

at trial because the district court would not pay the expert’s fees: “[Plaintiffs’]

expert testimony was excluded due to [their] indigent status and the financial

restraints placed upon their case.” Appellants’ Br. at 4. Plaintiffs also make

passing reference to the court’s pretrial order that excluded some, but not all, of

the expert’s proposed testimony as irrelevant, unreliable, or impermissible legal

opinion.

      Plaintiffs did not call their expert witness at trial to testify on any topic.

The fact that plaintiffs decided not to call their expert witness at trial is obviously

not the same thing as excluding testimony. Even if plaintiffs decided not to call

their expert because they could not afford to do so, there is no authority that

requires a district court to pay a party’s expert fees in a civil case.

      Although plaintiffs mention Fed. R. Evid. 702 and      Daubert v. Merrell Dow

Pharm. Inc ., 509 U.S. 579 (1993) in their brief, they never discuss how the

district court’s detailed order concerning the exclusion of some of the topics of

their expert’s proposed testimony was error. Instead, plaintiffs’ entire argument

is on this point is as follows: “It was inconceivable to think that the district court



                                           -6-
would not only limit [the expert’s] trial testimony by excluding significant

portions of it, but, then, to put financial restraints on their case to hinder [their]

ability to procure the most plausible and essential testimony relevant to their

case.” Appellants’ Br. at 5-6.

       The failure to articulate any reason why the district court’s order was error

pursuant to any authority, including Fed. R. Evid. 702 or       Daubert , means that this

court will not review the order on appeal.     See Am. Airlines v. Christensen   , 967

F.2d 410, 415 n.8 (10th Cir. 1992) (holding statement in brief that ruling is being

appealed, without advancing any argument as to the grounds, is insufficient

appellate argument).

                                   Summary Judgment

       Plaintiffs contend that the district court erred in granting summary

judgment in favor of Southwest on their claims for intentional infliction of

emotional distress and plaintiff Fuller’s claim for negligent infliction of

emotional distress. This court reviews the district court’s grant of summary

judgment de novo, viewing the evidence and drawing reasonable inferences

therefrom in the light most favorable to the nonmoving party.        Gossett v. Okla. ex

rel. Bd. of Regents for Langston Univ.   , 245 F.3d 1172, 1175 (10th Cir. 2001).

       After reviewing the record, we conclude that the district court properly

granted summary judgment on plaintiffs’ claims for intentional infliction of



                                             -7-
emotional distress. The court correctly enumerated the elements of and burdens

of proof for a claim of intentional infliction of emotional distress under Kansas

law. It also correctly applied Fed. R. Civ. P. 56(c) and the law to the summary

judgment evidence, to reach its conclusion that the announcement was neither

extreme and outrageous, nor had plaintiffs suffered any severe emotional distress.

See Sawyer v. Southwest Airlines, Co.        , 243 F. Supp.2d 1257, 1273-75 (D. Kan.

2003). As such, we affirm the court’s summary judgment order.

       As to plaintiff Fuller’s claim for negligent infliction of emotional distress,

the district court held that the claim was preempted by the Airline Deregulation

Act, which provides that a state “may not enact or enforce a law, regulation, or

other provision having the force and effect of law related to a price, route, or

service of an air carrier.” 49 U.S.C. § 41713(b)(1).

       Plaintiff Fuller argues that because she suffered the physical injury required

by Kansas law to sustain a claim for negligent infliction of emotional distress, the

district court’s summary judgment order was error. This argument misses the

mark. The relevant issue is preemption – not whether plaintiff Fuller suffered

physical injury. Because this argument does not affect the outcome of the case,

this court will not consider it on appeal.      Griffin v. Davies , 929 F.2d 550, 554

(10th Cir. 1991) (citation omitted).




                                               -8-
         Moreover, plaintiff Fuller does not argue that the district court’s order

holding that the claim is preempted was error. Therefore, this court considers this

issue waived on appeal.     Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir.

1995).

                                    Judicial Misconduct

         Plaintiffs argue that the district court was guilty of judicial misconduct

because the court referred to “eenie, meenie, minie, mo” as a “nursery rhyme” in

explaining plaintiffs’ lawsuit to the jury, and demonstrated bias against them by

adverse rulings during the trial.

         Setting aside the fact that plaintiffs never moved for a mistrial, based on

our review of the record, there is simply no merit to plaintiffs’ argument of

judicial misconduct. In numerous pleadings, plaintiffs themselves referred to the

phrase as part of a “nursery rhyme.” Consistent with their written

characterizations, plaintiffs’ lawyer in his opening statement referred to the

phrase as part of a “racist nursery rhyme.” Also, adverse rulings during a trial,

standing alone, do not establish animosity or bias.     See Green v. Branson , 108

F.3d 1296, 1305 (10th Cir. 1997).

         Plaintiffs also contend for the first time on appeal, that the district court

judge should have recused herself because they believe that their court-appointed

counsel had been a law clerk for the judge, suggesting that because of this alleged



                                             -9-
affiliation, the judge enabled their lawyer to neglect his fiduciary duties. Setting

aside the dubious logic of this argument, there is nothing in the record

establishing that plaintiffs’ counsel was a former law clerk for the judge.

       More to the point, even if this court construes the argument of judicial

misconduct as a motion to recuse, plaintiffs acknowledge that they knew about the

alleged affiliation prior to the trial, but they never requested recusal. Under these

circumstances, plaintiffs cannot raise this issue for the first time on appeal.   See

Id. at 1305 (motion to disqualify is untimely where there is no explanation for

delay).

       The judgments of the district court are AFFIRMED.



                                                          Entered for the Court



                                                          John C. Porfilio
                                                          Circuit Judge




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