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

                             FOR THE TENTH CIRCUIT                         February 21, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 PATRICK SLAVIN,

       Plaintiff - Appellant,

 v.                                                          No. 18-1347
                                                (D.C. No. 1:14-CV-01839-RPM-KMT)
 GARRISON PROPERTY AND                                        (D. Colo.)
 CASUALTY INSURANCE COMPANY,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY, and EID, Circuit Judges.
                  _________________________________

      Plaintiff Patrick Slavin appeals from the district court’s judgment entered after

a jury trial in favor of Defendant Garrison Property and Casualty Insurance

Company, challenging the court’s evidentiary rulings and a jury instruction.

      In June 2012, a hailstorm damaged the front façade of Plaintiff’s home,

including its windows and brickwork. Plaintiff filed a claim under his homeowner’s

insurance policy with Defendant, which contained a replacement-cost provision.

With respect to the brickwork, Plaintiff discovered that the “Dover Cream” bricks

used in the façade were out of stock, but he eventually found a manufacturer that


      *
         This order and judgment is not binding precedent, except under the doctrines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.
would produce new Dover Cream bricks in a special brick-run consisting of a

minimum 50,000 bricks at a cost of approximately $21,000. Plaintiff submitted a

total estimate of more than $59,000 to repair the brickwork, which included the cost

of producing new Dover Cream bricks. Defendant responded by offering instead to

pay the cost to replace the entire façade using a different brick, which entailed the

use of substantially fewer bricks at a total cost of between roughly $17,000 and

$24,000. Plaintiff rejected Defendant’s offer, and Defendant refused to pay the cost

to repair or replace the façade using new Dover Cream bricks.

      Meanwhile, as Defendant continued to adjust the claim, it issued Plaintiff a

number of checks. The parties dispute what portions of the claim the checks’

amounts were meant to cover. Adding to the confusion, Plaintiff did not cash some

of the checks, and Defendant claims it issued certain amounts merely to replace

uncashed, stale checks.

      Plaintiff filed this diversity suit in May 2014, asserting claims for breach of

contract, common-law bad-faith breach of contract, and violation of Colo. Rev. Stat.

§ 10-3-1115, which prohibits insurers from unreasonably delaying or denying a claim

for benefits owed. During litigation, the manufacturer stated it was willing to

produce a reduced run of 16,000 bricks, costing approximately $11,000. Thereafter,

Plaintiff invoked a provision in the policy allowing for an appraisal of the loss

amount. The appraisers agreed that the loss amount was $23,623.25 for the brick and

$12,884.61 for the windows, and the parties subsequently stipulated—and the court

ruled—that the appraisal award, including the amounts for both brick and window

                                           2
damage, was conclusively the amount of the covered benefit under the policy.

Following the appraisal award, Defendant issued Plaintiff more checks, and again

there is a dispute regarding what amounts were for the windows, the brickwork, other

repairs, or to replace stale, un-cashed checks.

       Prior to trial, Plaintiff voluntarily withdrew his breach-of-contract and

common-law bad-faith claims. Thus, Plaintiff proceeded to trial solely on his § 10-3-

1115 claim, and the only issues for the jury to decide were whether Defendant had

delayed or denied a claim for benefits owed and, if so, whether the delay or denial

was unreasonable. After a four-day trial, the jury returned a verdict, finding that

Defendant had not denied or delayed payment of a benefit. The district court

accordingly entered judgment in favor of Defendant.

       On appeal, Plaintiff challenges three of the district court’s evidentiary rulings

as well as one instruction given to the jury. We address these issues in the order they

arose in the district court.

       I.     Evidentiary Rulings

       First, Plaintiff argues that the district court erred by excluding evidence

regarding adjustment for damage to Plaintiff’s windows. During the initial stages of

the adjustment process, the parties briefly disputed the cost and extent of repairs

needed for the damaged windows, but, after some discussion, Plaintiff suggested he

was satisfied with the adjustment for the windows and did not raise the issue again.

Later, when trying to resolve the parties’ disagreement prior to suit, Plaintiff’s

attorney advised Defendant that “masonry is the sole issue in dispute.” (Appellant’s

                                            3
App. at 718.) Both Plaintiff’s initial and amended complaints echoed counsel’s

understanding, stating that “masonry . . . is the issue in dispute.” (Id. at 50, 69.)

Indeed, Plaintiff concedes that the operative complaint does not mention windows—

because, at the time he filed it, there was no factual basis to include allegations

concerning them—and that the complaint contains no allegations of unreasonable

delay with respect to adjusting for window damage.

       As Plaintiff seems to acknowledge, window-damage adjustment did not arise

as an issue again until the appraisal award set the loss amount for window damage.

Following the award, the parties disputed whether window damage was an issue in

the litigation. Most notably, Defendant, in its summary judgment motion, urged the

district court to ignore evidence of window damage as immaterial to Plaintiff’s

claims.

       In its ruling on the summary judgment motion, the court rejected the argument

that the breach-of-contract claim was “limited to [Defendant’s] payment for repair of

the damaged brick” because Plaintiff’s complaint alleged that Defendant breached the

policy by “fail[ing] to ensure that Plaintiff’s home would be repaired or rebuilt to the

condition that it was in prior to any loss,” an allegation “sufficient to encompass the

assertion that [Defendant] failed to pay the entire cost of his property claim,” including

both brick and window damage. (Id. at 1500.) The court strongly suggested, however,

that the complaint failed to allege window damage as a basis for Plaintiff’s other claims,

explaining that the “actions [Plaintiff] asserts constitute bad faith” are Defendant’s

“actions in assessing the cost to repair the damaged brick.” (Id.)

                                              4
       After the district court denied Defendant’s motion for summary judgment, the

parties argued over whether Defendant’s expert’s opinions concerning the reasonableness

of Defendant’s adjustment for window damage should be excluded. In deciding the

issue, the court explained that Plaintiff’s complaint “does not allege[] any misconduct or

bad faith by [Defendant] in its handling of Plaintiff’s claim related to the repair of his

windows; rather, the factual allegations relate solely to the issue of the repair/replacement

of the bricks.” (Id. at 2280.) As a result, the court determined that “evidence [of

Defendant’s window-damage adjustment] is not relevant or admissible at trial.” (Id.)

       “We review the district court’s exclusion of evidence for abuse of discretion,”

Eller v. Trans Union, LLC, 739 F.3d 467, 474 (10th Cir 2013), and we will not

reverse the district court’s evidentiary ruling unless we are convinced that its

“conclusion is arbitrary, capricious, whimsical or manifestly unreasonable” or that it

“made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Elm Ridge Exploration Co. v. Engle, 721 F.3d 1199, 1213 (10th Cir.

2013) (internal quotation marks omitted).1 A court does not abuse its discretion by

excluding evidence that is not relevant to the claims alleged in the complaint. See


       1
         Defendant argues that we need not review Plaintiff’s challenge because
Plaintiff waived the issue by taking litigation positions fundamentally inconsistent
with his challenge to the district court’s decision to exclude evidence of window
damage. See United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183–86 (10th Cir.
2009). Defendant also argues that, even if the issue is not waived, our review should
be for plain error because Plaintiff failed to make the requisite offer of proof
regarding window damage. See Perkins v. Silver Mountain Sports Club & Spa, LLC,
557 F.3d 1141, 1147 (10th Cir. 2009). We decline to address these arguments
because, even applying the abuse-of-discretion standard Plaintiff asserts, we perceive
no reversible error in the district court’s decision.
                                              5
Griffeth v. United States, 672 F. App’x 806, 813 (10th Cir. 2016); Seymore v.

Shawver & Sons, Inc., 111 F.3d 794, 800–01 (10th Cir. 1997), abrogated on other

grounds as recognized by Eisenhouer v. Weber Cty., 744 F.3d 1220, 1227 (10th Cir.

2014). Thus, where the operative complaint does not give a defendant fair notice of a

claim that the plaintiff attempts to assert later in litigation, a court may exercise its

discretion to exclude evidence of that claim. See George v. Kraft Foods Global, Inc.,

641 F.3d 786, 792 (7th Cir. 2011).

       Plaintiff primarily contends that the district court abused its discretion because

his complaint sufficiently alleged that Defendant unreasonably denied or delayed

payment for the window damage. We are not persuaded. A fair reading of the

operative complaint reveals that Plaintiff based his allegations of unreasonable denial

or delay on Defendant’s conduct with respect to the brick damage only. Although the

district court discerned an allegation of breach encompassing window damage from a

single allegation regarding Defendant’s general failure to pay the cost to bring the

home to its pre-loss condition, it did not abuse its discretion in viewing the complaint

as failing to allege that Defendant unreasonably denied or delayed paying for the

window damage.2 If, after the appraisal award, Plaintiff wished to pursue a § 10-3-


       2
         Plaintiff contends in his reply brief that the district court’s decision was
manifestly unreasonable because the language of the allegation the court relied on in
determining that Plaintiff’s breach claim encompassed window damage—i.e., that
Defendant failed to ensure Plaintiff’s home was repaired to its pre-loss condition—is
repeated in his allegations concerning his § 10-3-1115 claim. In Plaintiff’s view,
because the language in both allegations is similar and because the court understood
one allegation to encompass window damage, it should have likewise viewed the
other allegation as encompassing window damage as well. The court, however,
                                             6
1115 claim based on Defendant’s adjustment for window or other non-brick-related

damage, he could have sought leave to amend his complaint to include such

allegations. He did not do so.3

      Plaintiff next argues that the district court’s ruling is inconsistent with the

requirements for stating a claim in, and making amendments to, a pleading in Fed. R.

Civ. P. 8 and 15. He contends that Rule 8 does not require plaintiffs to plead every

fact that might underly a claim already asserted in the complaint and that Rule 15

does not require amendment when evidence supporting a previously-pled claim is

revealed in discovery. Plaintiff’s reliance on the rules governing pleadings is

misplaced. Whether a plaintiff has satisfied the standards of pleading is a different

question than whether a court has properly excluded evidence of a claim not raised in

the complaint. See Hohenberger v. United States, 660 F. App’x 637, 641–42 & n.1

(10th Cir. 2016). Further, even if we approached the issue as one of pleading as

Plaintiff suggests, we have already determined that the operative complaint, fairly



relied on a distinction between claims for breach and claims under § 10-3-1115.
Unlike for a breach claim, a plaintiff pursuing a § 10-3-1115 claim must allege and
then prove the defendant acted unreasonably and, as the district court observed, the
only unreasonable conduct Plaintiff alleged related solely to Defendant’s adjustment
for brick damage. Thus, although other judges might have understood Plaintiff’s
generalized § 10-3-1115 allegations to encompass window damage, we cannot say
the district court’s reliance on the specific allegations regarding unreasonable
conduct, which related solely to brick damage, was manifestly unreasonable.
      3
       Plaintiff did file a motion for leave to file a second amended complaint,
which would have included allegations regarding Defendant’s adjustment for window
damage. However, the parties jointly withdrew the motion before the court ruled on
it.
                                            7
read, does not allege that Defendant unreasonably denied or delayed paying for the

window damage. See Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)

(“Despite the liberality of modern rules of pleading, a complaint still must contain

either direct or inferential allegations respecting all the material elements necessary

to sustain a recovery under some viable legal theory.” (internal quotation marks and

alteration omitted)). Thus, the rules Plaintiff relies on do not aid him.

      Plaintiff also argues the ruling was manifestly unreasonable because the

district court “reversed course” from its previous rulings. (Appellant’s Opening Br.

at 24.) We agree with the district court, however, that neither of the two previous

rulings Plaintiff identifies are inconsistent with the ruling he now challenges. In its

summary judgment order, the court ruled that Plaintiff’s allegation that Defendant

generally failed to ensure his home was repaired to its pre-loss condition was

sufficient to encompass window damage for purposes of the breach claim, but it did

not rule that this allegation was sufficient to encompass window damage for the § 10-

3-1115 claim. If anything, the court strongly suggested the opposite. Likewise, the

court’s determination that the appraisal award’s amount for the window damage

constituted part of the “covered benefit” for purposes of the § 10-3-1115 claim is not

a determination that Plaintiff’s complaint sufficiently alleged that Defendant

unreasonably denied or delayed payment for the window damage.4 Further, even if


4
 The scope of the “covered benefit” for purposes of a § 10-3-1115 claim remains
unsettled. See Peden v. State Farm Mut. Auto. Ins. Co., No. 14-cv-00982-LTB-KLM,
2016 WL 7228830, at *3 (D. Colo. Dec. 14, 2016); see also State Farm Mut. Auto.
Ins. Co. v. Fisher, 418 P.3d 501, 504 (Colo. 2018) (noting the statute does not define
                                            8
the court’s decision to exclude window-damage evidence was somehow inconsistent

with its previous rulings, Plaintiff cites no authority for his proposition that a court

may not “reverse course” from its previous evidentiary rulings, let alone that doing so

is manifestly unreasonable. See Spring Creek Exploration & Prod. Co. v. Hess

Bakken Inv., II, LLC, 887 F.3d 1003, 1023–24 (10th Cir. 2018) (noting the district

court’s “inherent power to reconsider its interlocutory rulings” (internal quotation

marks omitted)).

       Second, Plaintiff argues that the district court abused its discretion by

preventing him from introducing a letter—sent by Defendant’s claims manager to

Plaintiff after the lawsuit began—to rebut testimony regarding amounts Defendant

had issued for brick repair prior to suit. We do not address the merits of this

argument, however, because we agree with Defendant that Plaintiff waived the issue

under the invited-error doctrine.

       Prior to trial, Plaintiff moved to exclude all evidence of events occurring after

the lawsuit was filed, arguing that Defendant’s post-filing conduct would have no

bearing on whether Defendant acted reasonably in processing his claim and that

evidence of post-filing appraisal and accounting would complicate trial. The district


the term). At least one court has suggested that the “covered benefit” may be “the
total amount of the benefit ultimately owed by the insurer” rather than “the amount of
the benefit that was owed but unreasonably delayed or denied by the insurer.”
Peden, 2016 WL 7228830, at *3. Under this view of the statute, a determination of
the amount of the covered benefit is divorced from the determination of whether
benefits owed have been unreasonably denied or delayed. This appears to be the
view taken by the district court in this case, and, because Plaintiff does not challenge
it, we do not asses the merits of that view here.
                                            9
court granted the motion in part and excluded evidence of certain post-filing events

from trial, including the appraisal and accounting process, concluding the value of

such evidence was outweighed by the risk of confusion and undue delay.

      At trial, Defendant set out to show that it paid the full amount of the covered

benefits before litigation commenced and elicited testimony from its claims manager

and another employee that Defendant had paid Plaintiff more than $23,623.25 for

brick damage before Plaintiff filed suit. In response, Plaintiff’s counsel attempted to

introduce a post-filing letter the claims manager sent to Plaintiff following the

appraisal, which, in Plaintiff’s view, states that Defendant paid only about $10,000

for brick damage prior to suit. Defendant objected on the ground that the court had

already ruled that evidence of post-filing events would be excluded. The court

resolved the issue by excluding the letter and prohibiting Defendant from eliciting

further testimony or arguing at closing that its pre-litigation payments for the

brickwork exceeded the appraisal award.

      “The invited-error doctrine precludes a party from arguing that the district

court erred in adopting a proposition that the party had urged the district court to

adopt.” ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 771 (10th Cir. 2011).

Invited error is thus “a form of waiver,” as it involves “the intentional relinquishment

or abandonment of a known right.” Id. (internal quotation marks omitted). If a party

waives an argument by inviting the putative error he complains of, appellate review

is not available. See United States v. Jereb, 882 F.3d 1325, 1335 (10th Cir. 2018).



                                           10
      Essentially, Plaintiff argues the district court erred by enforcing an

exclusionary rule he urged it to adopt, an argument near the heart of the invited-error

doctrine. See United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005); see

also Jereb, 882 F.3d at 1340 (noting the “robustness” of the doctrine). Plaintiff

specifically asked the court to categorically exclude evidence of post-filing events as

irrelevant and overly confusing when weighed against its probative value, and the

court agreed. There is no dispute that the letter Plaintiff now says should have been

admitted falls within that category of evidence. Thus, the court’s exclusion of the

letter is an “immediate consequence” of its prior decision to grant Plaintiff’s motion

to exclude the category of evidence to which the letter indisputably belongs, and

straightforward application of the invited-error doctrine prevents Plaintiff from

“set[ting] aside” that consequence now. Jereb, 882 F.3d at 1338.

      Plaintiff seems to argue for an exception to the invited-error doctrine based on

the circumstances of this case. He contends that, because the doctrine is equitable in

nature, see Eateries, Inc. v. J.R. Simplot, Co., 346 F.3d 1225, 1229 (10th Cir. 2003),

it should not apply where Plaintiff’s excluded evidence was needed to counter

Defendant’s use of false or misleading evidence and Defendant’s own violation of the

court’s categorical exclusion of post-filing evidence. We need not determine whether

to adopt such an exception because, even if we did, there is no factual basis in the

record to apply it here.5 Plaintiff asserts the testimony Defendant elicited from its


      5
         Plaintiff contends the district court recognized that the testimony Defendant
solicited was improper. The record on this point, however, is far from clear. The
                                           11
employees was false, but the record evidence, although subject to dispute, supports

their testimony. Plaintiff also asserts the testimony violated the court’s bar on post-

filing evidence,6 but the testimony related solely to the pre-filing amounts Defendant

had issued. Rather than introducing false evidence of post-filing events, it appears

Defendant simply played by the rules Plaintiff asked for by introducing evidence of

pre-filing payments. In sum, Plaintiff invited the court to exclude certain kinds of

evidence when it seemed favorable to his case, and now he charges the court with

error for enforcing the exclusion when it seemed unfavorable to his case. This is

precisely the type of scenario in which the invited-error doctrine precludes appellate

review.

      Third, Plaintiff argues that the district court abused its discretion by admitting

into evidence photographs of his home. At trial, Defendant attempted three times,

with three witnesses, to introduce recent photographs of Plaintiff’s home that



court appears to have concluded that detailed testimony regarding the pre-filing
amounts Defendant issued to Plaintiff was becoming overly confusing for the jury.
The court thus precluded Defendant from further arguing or eliciting testimony
regarding pre-filing amounts. The court initially seems to have agreed with
Plaintiff’s suggestion to also issue a limiting instruction with respect to the testimony
about pre-suit payments on the ground that the testimony was irrelevant, but it
ultimately declined to do so. Although the district court’s reasons for the restrictions
it placed (or chose not to place) on Defendant’s presentation of its case are not
entirely clear, the upshot is that nothing in the record indicates the court thought the
testimony Defendant elicited was false, misleading, or a violation of its prior ruling
excluding post-filing evidence. Thus, the court’s handling of the testimony does not
provide a factual underpinning for Plaintiff’s request that we adopt an equitable
exception to the invited-error doctrine in his case.
      6
          Notably, Plaintiff never objected to the testimony on this basis.
                                            12
Defendant had produced after discovery had ended. Plaintiff twice objected that the

photographs were not timely disclosed, and the court twice sustained the objection.

       Defendant’s third attempt to introduce the photographs occurred while cross-

examining Plaintiff. Plaintiff’s counsel had contended in his opening argument, and

had elicited testimony from Plaintiff, that Plaintiff placed a premium on his home

having a uniform look. Unlike the two previous occasions, Defendant offered the

photographs as contradictory evidence on this point in order to impeach Plaintiff.

Plaintiff’s counsel complained that these were “the same photo[graph]s that were

taken last weekend” that were previously excluded (Appellant’s App. at 3320), but

the court noted this was a different witness and told counsel that, if he had an

objection, it was overruled.

       On appeal, Plaintiff primarily argues the photographs should have been

excluded because they were not disclosed during discovery. If a party fails to timely

disclose certain evidence as required by Fed. R. Civ. P. 26(a), “the party is not

allowed to use that [evidence] . . . at trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Rule 26(a), in turn, requires a

party to identify during the discovery period certain “evidence that it may present at

trial other than solely for impeachment.” Fed. R. Civ. P. 26(a)(3)(A)(iii) (emphasis

added). “In other words, a party need not disclose [this evidence] pursuant to Rule

26(a) if the evidence will be used solely for impeachment.” Standley v. Edmonds-

Leach, 783 F.3d 1276, 1281 (D.C. Cir. 2015) (internal quotation marks omitted);



                                            13
accord Parson v. Farley, ___ F. App’x ___, No. 18-5125, 2020 WL 132439, at *7

(10th Cir. Jan. 13, 2020).

      Both sides agree the photographs were not timely disclosed but could be used

at trial if they were used solely for impeachment.7 They disagree on whether the

photographs were, in fact, used solely for impeachment. Our case law distinguishing

evidence used solely for impeachment from substantive evidence in this context is

not very developed. Other circuits vary regarding the extent to which evidence may

have substantive, rather than just impeachment, value and still fit within Rule 26(a)’s

solely-for-impeachment exception. See generally Standley, 783 F.3d at 1281–84.

We have not directly addressed the issue, but we have suggested that the evidence

should have no substantive value. See Searles v. Van Bebber, 251 F.3d 869, 877

(10th Cir. 2001) (“If, as the judge saw it, the evidence was really more than mere

impeachment evidence, then the witnesses should have been disclosed.”). “We

generally defer to the district court’s decision” regarding whether “evidence is

offered for reasons other than impeachment.” Aerotech Res., Inc. v. Dodson

Aviation, Inc., 91 F. App’x 37, 45 (10th Cir. 2004) (citing Searles, 251 F.3d at 877).

      Here, the record demonstrates that the district court permitted the photographs

on the ground that they would be used to impeach Plaintiff by contradicting his

testimony concerning the importance of a uniform look to his house. Further,


      7
         Because we conclude the district court did not abuse its discretion in
permitting the photographs to be used for impeachment, we decline to address the
parties’ arguments concerning whether Defendant’s failure to timely disclose the
photographs was harmless or substantially justified. See Fed. R. Civ. P. 37(c)(1).
                                          14
defense counsel’s subsequent examination appears to have been aimed at showing

that, in the years following the hailstorm, Plaintiff did not maintain his house with a

uniform look. Plaintiff asserts the photographs were used not to impeach but to show

it was reasonable to use Defendant’s choice of brick on a house that lacked a uniform

look, but this substantive use is not apparent in the record. Thus, we see no reason

that the court’s decision should not merit our deference.

      Plaintiff also argues that the photographs should have been excluded as

irrelevant and unfairly prejudicial.8 We review evidentiary rulings of this nature for

abuse of discretion. See Therrien v. Target Corp., 617 F.3d 1242, 1255–56 (10th Cir.

2010). Plaintiff contends that the photographs are irrelevant because they do not

depict his home as it looked at the time it was damaged by the hailstorm and thus are

unrelated to the reasonableness of Defendant’s conduct. He also contends that the

photographs were unfairly prejudicial because Defendant used them to show he did

not care for the appearance of his home, which directly undercut his theory of the

case. We are not persuaded. The photographs were relevant to Plaintiff’s credibility

on the issue of the importance of a uniform look, see Burke v. Regalado, 935 F.3d

960, 1024 (10th Cir. 2019) (explaining that evidence used to impeach by

contradiction is relevant if the jury can infer from it that the witness’s testimony is


      8
        Plaintiff may have waived this argument by failing to object to the
photographs on these bases in the district court and then failing to argue for plain-
error review on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31
(10th Cir. 2011). However, because Defendant does not raise the issue of waiver and
because there is at least some question as to whether Plaintiff had a meaningful
opportunity to raise the argument at trial, see infra note 9, we proceed to the merits.
                                           15
false); Creekmore v. Crossno, 259 F.2d 697, 698 (10th Cir. 1958) (“The credibility of

the witness is always relevant in the search for truth.” (internal quotation marks

omitted)), and we fail to see how using them to contradict Plaintiff’s testimony that

he valued a uniform look prejudiced him in an unfair way, see United States v.

Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008) (“Evidence is not unfairly prejudicial

simply because it is damaging to an opponent’s case.” (internal quotation marks

omitted)).9

      II.     Jury Instruction

      Plaintiff lastly argues that the district court erred by instructing the jury

regarding the statutory recovery that a successful § 10-3-1115 plaintiff may obtain.

Under the statute, plaintiffs are entitled to “recover reasonable attorney fees and

court costs and two times the covered benefit.” Colo. Rev. Stat. § 10-3-1116(1). At

the charging conference, Defendant proposed an instruction that, “[u]nder Colorado

law, an insurance company that unreasonably delays or denies payment of a covered

benefit is subject to certain statutory penalties to be imposed by the Court.”

(Appellant’s App. at 2477.) Plaintiff objected on the grounds that other courts had



      9
         Plaintiff also contends the district court acted arbitrarily by overruling his
objections to the photographs before even hearing them. There is some sparse
authority—although Plaintiff fails to cite any—for the notion that preemptively
overruling an objection might be reversible error in some circumstances. See United
States v. Llerenas, 743 F. App’x 86, 90 (9th Cir. 2018). However, any error in this
regard was harmless, as we have already determined that the photographs were
neither irrelevant nor unfairly prejudicial and that the court thus did not abuse its
discretion in admitting them. See id. (concluding error from peremptorily overruling
objection to testimony was harmless).
                                           16
rejected the instruction, the “penalty” is not in the jury’s province, and the instruction

is prejudicial. The court overruled the objection and issued the instruction.

      On appeal, there is no real dispute that the instruction accurately states

Colorado law.10 Instead, the dispute centers on the district court’s decision to give

the instruction, an issue governed by federal law.11 “We review de novo whether, as

a whole, the district court’s jury instructions . . . provided the jury with an ample

understanding of the issues and applicable standards.” Liberty Mut. Fire Ins. Co. v.

Woolman, 913 F.3d 977, 992 (10th Cir. 2019) (internal quotation marks omitted).

Under this standard, “[w]e review a district court’s decision to give a particular jury

instruction for abuse of discretion.” Harte v. Bd. of Comm’rs, 940 F.3d 498, 525

(10th Cir. 2019) (internal quotation marks omitted). “We do not decide whether the

instructions are flawless, but whether the jury was misled in any way and whether it

had an understanding of the issues and its duty to decide those issues.” Lederman v.

Frontier Fire Prot., Inc., 685 F.3d 1151, 1155 (10th Cir. 2012) (internal quotation


      10
          In a two-sentence footnote in his reply brief, Plaintiff argued for the first
time in this litigation that the instruction misstates Colorado law by referring to the
recovery provision as a “penalty.” He then repeated this point at oral argument. We
do not review this argument because (1) Plaintiff did not raise it in the district court
and does not argue for plain-error review on appeal, see Richison, 634 F.3d at 1130–
31; (2) he first raised it in his reply brief when he could have raised it in his opening
brief, see Burke, 935 F.3d at 1018 n.44; and (3) he did not adequately brief it, see
Therrien, 617 F.3d at 1252–53.
      11
         Both parties cite Colorado authorities to support their views on whether the
instruction should have been given. We have repeatedly held, however, that, in “a
diversity case, the content of jury instructions is a matter of state substantive law but
the determination of whether an instruction was erroneously given is governed by
federal procedural law.” Pratt v. Petelin, 733 F.3d 1006, 1008 n.1 (10th Cir. 2013).
                                           17
marks and brackets omitted). “If we determine that the trial court erred, we must

then determine whether the error was prejudicial . . . .” Id. “Faulty jury instructions

require reversal when (1) we have substantial doubt whether the instructions,

considered as a whole, properly guided the jury in its deliberations; and (2) when a

deficient jury instruction is prejudicial.” Jones v. United Parcel Serv., Inc., 674 F.3d

1187, 1198 (10th Cir. 2012) (internal quotation marks omitted).

      Generally speaking, the federal courts have recognized a policy against

informing juries of statutory fee-and-cost-shifting or damages-multiplying provisions

on the ground that juries so informed might decrease the damages award or find no

liability based not on the evidence but on whether the defendant deserves to be

penalized and the plaintiff so rewarded, which would thwart the legislative purposes

of the statute. See generally Brooks v. Cook, 938 F.2d 1048, 1051–53 (9th Cir.

1991). And, we have held that a trial court errs by informing the jury of such

provisions under the antitrust statute because the jury may respond by adjusting its

damages award downward to offset trebling and shifting. See Standard Indus., Inc. v.

Mobil Oil Corp., 475 F.2d 220, 222–24 (10th Cir. 1973); Semke v. Enid Auto.

Dealers Ass’n, 456 F.2d 1361, 1370 (10th Cir. 1972). Although we have never

applied this policy in the context of a § 10-3-1115 claim, Plaintiff points to district

court decisions refusing to instruct juries regarding the statute’s recovery provision

for some of the reasons animating the policy.12 Ultimately, we do not decide in this


      12
       See Peden v. State Farm Mut. Auto. Ins. Co., No. 14-cv-00982-LTB-KLM,
2018 WL 3496735, at *5–6 (D. Colo. July 20, 2018); Casaretto v. GEICO Cas. Co.,
                                           18
appeal whether the district court erred by giving the instruction because, even

assuming it erred, we conclude the error was not prejudicial, and we are not left with

substantial doubt that the instructions as a whole properly guided the jury.

      Plaintiff has not shown that the challenged instruction prejudiced him. An

instructional error is harmless unless the verdict was tainted by the error. U.S.

Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1252–53 (10th Cir. 1988),

overruled on other grounds as recognized by Anixter v. Home–Stake Prod. Co., 77

F.3d 1215, 1231 (10th Cir. 1996).13 In our cases, the potential prejudice from this

type of instruction that we have been primarily concerned with is the risk that juries

will reduce the damages award to counterbalance the recovery provision. Where the

jury does not determine the amount of damages to be awarded, however, the risk of

prejudice from informing them of the provision is greatly reduced, and, in such

circumstances, we have suggested that an instruction informing the jury of the

provision is harmless. See Semke, 456 F.2d at 1370 (explaining that, “since there


No. 16-cv-00285-MEH, 2017 WL 7693513, at *2 (D. Colo. May 26, 2017); Seidman
v. Am. Family Mut. Ins. Co., No. 14-cv-3193-WJM-KMT, 2016 WL 8201768, at *3
(D. Colo. Sept. 13, 2016); Toy v. Am. Family Mut. Ins. Co., No. 12-cv-01683-PAB-
MJW, 2014 WL 486173, at *1 (D. Colo. Feb. 6, 2014).
      13
         There is a recognized tension in our precedent regarding the standard to
apply when assessing prejudice from an erroneous instruction. See Koch v. Koch,
Indus., Inc., 203 F.3d 1202, 1233 (10th Cir. 2000). Some of our cases have stated
that reversal is warranted if there is any possibility, even a very unlikely one, that the
jury might have based its verdict on the erroneous instruction, while other cases state
that reversal is only required if the verdict more probably than not was tainted by the
error. See id. Although both parties have relied on the latter standard, we do not
decide between them because we would reach the same decision under either
standard. See Hardman v. AutoZone, Inc., 214 F. App’x 758, 765 (10th Cir. 2007).
                                            19
existed little room in the evidence under the trial court’s instruction to award any

damages,” “we would consider the error harmless”).14 Even where the jury does

determine the damages amount, we have said that the instructional error is harmless

when the court “simply inform[s the jury] that the other matters, i.e., trebling, costs,

and attorney’s fees[,] [a]re questions for the court.” Standard Indus., 475 F.2d at

223–24 (internal quotation marks omitted). Here, the jury was not tasked with

determining the amount of the covered benefit, and it ultimately returned a verdict

absolving Defendant of liability. Further, the court expressly instructed the jury on

which factual determinations it “must” evaluate liability and explained that the

recovery provision would be imposed, if at all, “by the Court.” (Appellant’s App. at

3512.) In these circumstances, we do not think the jury’s verdict was tainted by the

challenged instruction.15


      14
          See also SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1287 n.16 (8th
Cir. 1981) (“[E]ven if the instruction was erroneous, [the plaintiff] was not
substantially prejudiced by its use in light of the jury verdict absolving [the
defendant] of . . . liability.”); Janich Bros., Inc. v. Am. Distilling Co., 570 F.2d 848,
862 (9th Cir. 1977) (“Because the jury’s determination necessarily meant that [the
defendant] had no liability, any error in instructions concerning damages was not
prejudicial.”); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 852 (5th Cir. 1975) (“[The
plaintiff] suffered no prejudice from this error that would require a new trial[ because
t]he jury specifically found no violations . . . .”); 11 Charles Alan Wright et al.,
Federal Practice and Procedure § 2886 (3d ed. 2019) (“Errors in instructions
routinely are ignored . . . if the erroneous instruction went to an issue that is
immaterial in the light of the jury’s verdict . . . .”).
      15
          The other prejudice that could arise from a recovery-provision instruction is
that the jury might base its liability determination—rather than merely its damages
award—on the desire to avoid penalizing the defendant or overcompensating the
plaintiff. See Brooks, 938 F.2d at 1051–53. Some federal courts, including our own,
appear to have implicitly rejected this theory of prejudice. See Semke, 456 F.2d at
                                           20
       Nor are we left with substantial doubt regarding the instructions as a whole.

There is no dispute that the remainder of the trial court’s instructions accurately

instructed the jury on how to determine liability. Although the instructions might not

have been “flawless,” there is no indication the jury was “misled” about the law or

lacked “an understanding of the issues and its duty to decide” them. Lederman, 685

F.3d at 1155. Further, the challenged instruction did not instruct the jury to consider

the recovery provision in making its liability determination; in fact, the instruction

expressly stated that applying the provision was the court’s duty. See Cavanaugh v.

Woods Cross City, 718 F.3d 1244, 1250 (10th Cir. 2013) (“We generally presume

that juries follow the instructions given to them . . . .”).




1370; see also supra note 14. Plaintiff, however, relies on this theory and points to
defense counsel’s closing argument that the case “isn’t about the bricks anymore.
It’s about [Plaintiff] wanting statutory penalties.” (Appellant’s App. at 3503.) We
are not persuaded. As we have said, the threat of prejudice from a recovery-
provision instruction is greatly reduced where, as here, the jury never determines or
is not called upon to determine the base recovery amount. That logic applies equally
to Plaintiff’s “complaint about defense counsel’s jury argument relating to the
[recovery] provision.” Sulmeyer, 515 F.2d at 852. Further, reaching the opposite
conclusion would require us to assume that the jury lied when rendering its special
verdict and that it ignored the court’s clear instructions for reaching its decision,
assumptions we are usually loath to indulge in. See Barrett v. Salt Lake Cty., 754
F.3d 864, 868–69 (10th Cir. 2014) (rejecting challenge to jury instruction that “rest[s]
on an implicit assumption [that] the jury lied”); Bland v. Sirmons, 459 F.3d 999, 1015
(10th Cir. 2006) (“The jury is presumed to follow its instructions, even when there
has been misleading argument.” (internal citations omitted)).
                                             21
                                  *       *       *

      Because we discern no reversible error in the evidentiary rulings or jury

instruction Plaintiff challenges, we AFFIRM the district court’s judgment.


                                          Entered for the Court


                                          Monroe G. McKay
                                          Circuit Judge




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