                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 20 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LOWELL FLAMING;
    TERESA FLAMING,

                Plaintiffs-Appellants,

    v.                                                   No. 03-1079
                                                  (D.C. No. 99-B-942 (CBS))
    COLORADO SPRINGS PROPERTIES                           (D. Colo.)
    FUNDS I, doing business as Apollo
    Village Apartments, Ltd., a California
    limited partnership; MERRILL R.
    NEWTON; DARRYL MILLER,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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. 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.
       Plaintiffs Lowell and Teresa Flaming appeal from a jury verdict in favor of

defendants, Colorado Springs Properties Fund I, d/b/a Apollo Village Apartments,

Merrill Newton, and Darryl Miller, in their personal injury action. Jurisdiction in

the district court was based on diversity of citizenship under 28 U.S.C. § 1332.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                        Background

       The Flamings leased an apartment in the Apollo Village apartment

complex. Mr. Flaming alleged that he slipped in the shower and fell, cutting his

left arm on broken glass in the splashguard surrounding the shower, and suffering

permanent nerve damage. Plaintiffs alleged the glass had been broken for several

months, that they had reported the problem to defendants, but defendants failed to

repair the splashguard. Defendants denied any knowledge of the broken glass.

Following a trial, the jury found the defendants were not negligent.

                                         Voir Dire

       On appeal, plaintiffs first argue that the district court dismissed a potential

juror for cause without giving them the opportunity to supplement the voir dire

questioning in order to rehabilitate the juror. They contend the district court

violated a Colorado rule that requires the court to permit the parties or their

counsel to ask the prospective jurors additional questions to supplement the

court’s voir dire.   See Colo. R. Civ. P. 47(a)(3);   see also People v. Lefebre , 5 P.3d


                                             -2-
295, 301 (Colo. 2000) (en banc) (interpreting similar requirement under

Colo. R. Civ. P. 24(a)(3)). Plaintiffs claim that there was insufficient evidence of

bias to strike this potential juror for cause, and that doing so effectively allowed

defendants an extra peremptory challenge. Further, they contend the district court

made more effort to rehabilitate jurors who had been landlords than those who

had been renters, thereby improperly shaping the jury. Plaintiffs contend these

errors violated their due process right to an impartial jury.

      During voir dire, the court asked the jurors generally if they had any

experiences with respect to renting that would cause them to favor one party in

the case over the other. Venireperson Allen told the court that she had previously

rented from landlords who did not make repairs she believed they should have.

The court asked Allen if she would have difficulty deciding this case on its own

merits, and she responded, “I sure hope not.” Aplt. App., Appendix 1, at 17.

The court asked Allen if a claim were to be made against her as a landlord, would

she want someone sitting on the jury with the frame of mind that she now had,

and Allen responded, “Probably not.”     Id. at 20. The court then sua sponte

excused her for cause. Significantly, plaintiffs’ counsel did not ask the court if he

or the court could question Allen further in an attempt to rehabilitate her; did not

raise his Colo. R. Civ. P. 47(a)(3) concern to the court; did not object to Allen’s




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dismissal; and did not object in any way, at any time, to the court’s conduct of the

voir dire or the composition of the jury.

       Plaintiffs’ claimed voir dire errors are based on the erroneous legal premise

that Colorado’s procedural rule applies. In a diversity case, the court applies the

substantive law of the forum state, Colorado, in analyzing the underlying claim,

but applies federal law to procedural issues.      See Ahrens v. Ford Motor Co. ,

340 F.3d 1142, 1145 (10th Cir. 2003). The content of voir dire in a federal court

is a procedural issue, governed by federal law, specifically Fed. R. Civ. P. 47(a),

and is not controlled by any contrary state law.     Smith v. Vicorp, Inc. , 107 F.3d

816, 818 (10th Cir. 1997). The federal trial judge retains broad discretion under

Rule 47(a) to control the scope and extent of voir dire.     Id. at 817.

       Contrary to Colorado’s procedural rule, the federal trial court is not

obligated under Rule 47(a) to permit counsel to ask additional questions; Rule

47(a) states that the court “shall permit the parties or their attorneys to

supplement the [voir dire] examination by such further inquiry       as it deems

proper .” Id. (emphasis added); see also 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure       § 2482, at 113 (2d ed. 1995) (“[t]he court

need not allow the attorneys to question jurors if it does not wish to do so.”).

Thus, the district court was under no obligation to follow Colorado’s procedural

rule mandating that attorneys be given an opportunity to question potential jurors.


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See Vicorp , 107 F.3d at 817-18 (rejecting argument that court was required to ask

specific questions requested by counsel and required under state procedural

rules).

          Furthermore, plaintiffs never presented any of their voir dire arguments to

the district court. Their failure to request any further questioning of Allen, either

by counsel or the court, or to raise any objection either to Allen’s dismissal or to

the conduct of the voir dire constitutes a waiver of these issues on appeal.     Cf.

United States v. Diaz-Albertini     , 772 F.2d 654, 657 (10th Cir. 1985) (holding that,

when basis for juror challenge is timely shown, failure to object constitutes

waiver of right to attack jury composition). “[A]ttorneys may not sit idly by,

observe the occurrence of error, and then fail to bring the matter promptly to the

attention of the trial court.”    Id. If plaintiffs’ counsel believed that Allen could

be rehabilitated by additional questioning or that any aspect of the court’s

voir dire examination was inappropriate, he was free to raise these concerns with

the court.

          We find no error under a plain error analysis, which is limited in civil cases

to “errors which seriously affect the fairness, integrity or public reputation of

judicial proceedings.”     Quigley v. Rosenthal , 327 F.3d 1044, 1063 (10th Cir.

2003) (quotation omitted),       cert. denied , 124 S. Ct. 1507 (2004). Allen’s remarks

evidenced a clear indication that she doubted her own ability to be open-minded,


                                              -5-
which is a sufficient basis to remove a juror for cause.       See Staley v.

Bridgestone/Firestone, Inc. , 106 F.3d 1504, 1514 (10th Cir. 1997). We are

satisfied from our review of the entire voir dire that the court’s questioning of all

the potential jurors was impartial and even-handed, and we find nothing in the

record to suggest that the jury impaneled was not impartial.        See Getter v.

Wal-Mart Stores, Inc. , 66 F.3d 1119, 1123 (10th Cir. 1995) (finding party’s right

to an impartial jury not infringed, despite erroneous denial of for-cause challenge,

so long as the jury that sits is impartial). In short, we find no error in the court’s

conduct of the voir dire.

                                     Rebuttal Witness

       Plaintiffs next allege that the district court improperly disallowed the

telephonic testimony of a rebuttal witness. The district court’s refusal to allow

rebuttal testimony is reviewed for an abuse of discretion and will not be disturbed

absent a showing of manifest injustice to the parties.     Munoz v. St. Mary-Corwin

Hosp ., 221 F.3d 1160, 1168 (10th Cir. 2000).

       An expert witness called by defendants, Ms. Stodola, testified that the glass

in the splashguard was tempered glass. Ms. Stodola opined that tempered glass

could not have broken the way plaintiffs allege, nor caused the injuries suffered

by Mr. Flaming. At the conclusion of this testimony, plaintiffs requested

permission to call a rebuttal witness the next day who would testify about


                                             -6-
a reenactment of the incident she performed prior to the testing done by

Ms. Stodola. The district court granted this request, but the next day plaintiffs

stated that their rebuttal witness was unable to appear in person. The court denied

plaintiffs’ request to present the rebuttal testimony to the jury over the telephone.

       In their claim of error, plaintiffs make two unsupported assertions. First,

plaintiffs state that their rebuttal witness was expected to testify that the glass she

tested during her reenactment was not tempered glass, and that the original glass

was destroyed after her reenactment and replaced with tempered glass.            See Aplt.

Opening Br., at 3, 15. Plaintiffs did not, however, make this proffer to the district

court, nor is there any indication in the pre-trial report of any such expected or

possible testimony.   1



       Second, plaintiffs state they were “completely surprised” by Ms. Stodola’s

testimony. Plaintiffs go so far as to characterize her testimony as a “fraud.”         Id.


1
      When asked the subject of the proposed rebuttal testimony, plaintiffs’
counsel stated,

       there actually was a reenactment of the breakage of the shower door
       on November 12, 1998 where that door in the front was busted out
       and a test to see how the glass would break and fall to the floor. And
       a Jan Colvin was present for that test, and I’m going to call her to
       ask her if that reenactment of that front glass did take place, and
       that’s the only question I had.

Aplt. App., Appendix 7, at 3. Counsel never told the district court that the
rebuttal witness would testify the glass she tested was untempered glass, that the
original glass was destroyed, or that it was replaced by tempered glass.

                                             -7-
at 16. The record demonstrates no such surprise or fraud, however. Plaintiffs do

not assert now, nor did they ever assert in the district court, that any aspect of

Ms. Stodola’s testimony was not disclosed in her expert disclosure report

provided to them under Federal Rule of Civil Procedure 26(a)(2)(B). Plaintiffs

did not include Ms. Stodola’s Rule 26 disclosure report in the record on appeal.

The pre-trial report lists Ms. Stodola as an expert witness who would testify as to

the opinions expressed in her Rule 26 disclosure report, and the defendants stated

in their opening argument that they would present expert testimony that the glass

was tempered. Thus, plaintiffs present no legal argument nor evidentiary support

for their claim of unfair surprise. Because plaintiffs made no showing to the

district court that they sought to rebut evidence that they could not have

reasonably anticipated, the district court was within its discretion to disallow the

rebuttal testimony on this basis alone.   See Comcoa, Inc. v. NEC Tel., Inc.   ,

931 F.2d 655, 664 (10th Cir. 1991).

       Additionally, the presentation of testimony in court by “contemporaneous

transmission from a different location” is permitted in federal court only for

“good cause shown in compelling circumstances and upon appropriate

safeguards.” Fed. R. Civ. P. 43(a). Plaintiffs made no such showing in this case,

and the district court acted well within its discretion in disallowing the telephonic

testimony of the plaintiffs’ rebuttal witness.


                                           -8-
                                     Jury Instruction

       Finally, plaintiffs contend the district court erred in not amending the civil

jury instruction defining causation. Plaintiffs contend the district court gave the

standard Colorado civil jury instruction defining causation:

       The word “cause” as used in these instructions means an act or
       failure to act which in natural and probable sequence produced the
       claimed injury. It is a cause without which the claimed injury would
       not have occurred.

Aplt. Opening Br. at 18.

       Plaintiffs argue the instruction is “overbroad, tenuous and confusing,”

because any action could be “a cause without which the claimed injury would not

have occurred.” Aplt. Opening Br. at 18. They assert that the jury could “go

back in time, as far as they deem fit, to find a cause, whether [or not] it is

relevant to the matter at hand.”    Id. Plaintiffs focus only on the last sentence of

this instruction, however. When read in context with the first sentence of the

instruction, it is clear the instruction requires that the injury be a natural and

probable result of the act in question, and that the instruction accurately informs

the jury of the governing law.     See Quigley , 327 F.3d at 1062 (court reviews de

novo whether the instructions, as a whole, accurately stated the governing law);

see also Hall v. Walter , 969 P.2d 224, 238 n.12 (Colo. 1998) (defining causation

under Colorado law). Thus, we find no error in the given instruction.



                                            -9-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Mary Beck Briscoe
                                          Circuit Judge




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