                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 7 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 LOUISE L. O’HEARON,

          Plaintiff - Appellant
          Cross-Appellee,
                                                  Nos. 96-4140, 96-4146,
 v.                                                     & 96-4175
                                                  (D.C. No. 93-C-798-W)
 CASTLEVIEW HOSPITAL and                             (District of Utah)
 ANNA MAE PEREZ,

          Defendants - Appellees
          Cross-Appellant.


                             ORDER AND JUDGMENT         *




Before TACHA , KELLY and LUCERO , Circuit Judges.



      Louise O’Hearon appeals from a jury’s finding that defendants Castleview

Hospital (“Castleview”) and Anna Mae Perez were not negligent in this medical

malpractice action. O’Hearon challenges evidentiary and procedural rulings made

by the trial court and requests a new trial. Defendants cross-appeal the denial of




      *
         This order and judgment is not binding precedent, except under the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.
their motion for a directed verdict. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.   1



                                           I

      O’Hearon fell and broke her hip at the home of her son Rick O’Hearon on

August 19, 1991. She was taken to Castleview where her broken hip was

repaired. On August 29, 1991, about nine days after the corrective surgery, while

still in-patient at the hospital, she was directed by Perez, a hospital nurse, to use a

toilet extender. The second amended complaint alleges that she expressed her

discomfort with using the extender. According to plaintiff, when she sat on the

extender, she fell over and struck the hip that had just been repaired, necessitating

additional surgery.

      Plaintiff then sent Castleview a notice of intent to file a medical

malpractice action, as required by the Utah Medical Malpractice Act (“UMMA”).

See U.C.A. § 78-14-8. Simultaneously, she sent a settlement offer to her son’s

insurance company, setting forth the theory of liability against him and requesting

both special and general damages. In early August 1993, pursuant to UMMA,          see

U.C.A. § 78-14-12, O’Hearon requested a pre-litigation panel review. Her initial

complaint, dated September 3, 1993, names Rick O’Hearon as the sole defendant



      1
        Because we affirm the trial court’s rulings and the jury’s verdict, we need
not address defendants’ appeal of the denial of their motion for a directed verdict.

                                          -2-
and alleges that his negligence caused the fall that broke and permanently

damaged her hip. On January 24, 1994, appellant received an affidavit certifying

compliance with UMMA, a prerequisite for pursuing a court action for medical

malpractice against the hospital and its personnel. She then amended her

complaint to add negligence and medical malpractice claims against the hospital

and the nurse.

         On February 21, 1995, plaintiff settled her lawsuit against her son and

released him from all claims. A month later, the remaining defendants filed

motions to (1) disclose the terms of this settlement to the jury; (2) apportion any

fault attributed to Rick O’Hearon; and (3) offset the settlement amount against

any subsequent judgment that might be awarded to plaintiff. Over plaintiff’s

opposition, the district court permitted the remaining defendants to disclose the

settlement offer and the fact of the settlement to the jury. The court denied

defendants’ request that fault be apportioned.

         A five-day jury trial was held in June 1996. The district court denied

defendants’ motion for a directed verdict. The jury returned a verdict against

O’Hearon. The district court also denied appellant’s Rule 59 motion for a new

trial.

         On appeal, O’Hearon challenges the following rulings by the district court:

(1) admitting into evidence the settlement offer to her son, and the signed release


                                           -3-
absolving him and his insurer of responsibility for any claims arising from the

August 19, 1991 incident, while prohibiting her from introducing the settlement

amount; (2) admitting into evidence her initial complaint, permitting defendants

to cross-examine her as to its contents, and prohibiting her from presenting

evidence as to Utah’s medical malpractice prelitigation procedures; (3) denying

her motion for a new trial based on alleged juror misconduct and improper

argument by defense counsel; and (4) denying her motion to strike a juror for

cause.

                                            II

         All of the evidentiary errors alleged by plaintiff are reviewed for abuse of

discretion. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). “When

we apply the abuse of discretion standard, we defer to the trial court’s judgment

because of its first-hand ability to view the witness or evidence and assess

credibility and probative value.”    Towerridge, Inc. v. T.A.O., Inc.   , 111 F.3d 758,

763 (10th Cir. 1997) (quotation omitted). The district court’s essential control

over the trial process should not be questioned absent a manifest injustice to the

parties. See Gracia v. Lee , 976 F.2d 1344, 1345 (10th Cir. 1992).

                                            A

         O’Hearon argues that the trial judge erred in admitting evidence of the

settlement offer to Rick O’Hearon and subsequent release of all claims against


                                           -4-
him. The admission of settlement offers and settlements is generally prohibited

under the Federal Rules of Evidence.      See Fed. R. Evid. 408. Rule 408 provides

as follows:

       Evidence of (1) furnishing or offering or promising to furnish, or (2)
       accepting or offering or promising to accept, a valuable consideration
       in compromising or attempting to compromise a claim which was
       disputed as to either validity or amount, is not admissible to prove
       liability for or invalidity of the claim or its amount. Evidence of
       conduct or statements made in compromise negotiations is likewise
       not admissible . . . . This rule [] does not require exclusion when the
       evidence is offered for another purpose, such as proving bias or
       prejudice of a witness, negativing a contention of undue delay, or
       proving an effort to obstruct a criminal investigation or prosecution.

Fed. R. Evid. 408. The defendants contend, however, that the admission of the

settlement evidence at issue here did not prove the “invalidity” or contest the

amount of O’Hearon’s claims against them, but was offered for impeachment

purposes. Consequently, they argue that Rule 408 has no application here. The

district court appears to have accepted this argument in admitting both the

settlement offer and a redacted version of the release.

       The plain text of Rule 408 permits evidence of a settlement to be admitted

for purposes other than to prove the validity or amount of a claim.   See, e.g. ,

Towerridge , 111 F.3d at 770 (upholding admission of evidence that government

settled plaintiff’s claims for damages caused by government’s delay because

relevant to show defendant acted in bad faith);    Broadcort Capital Corp. v. Summa

Med. Corp. , 972 F.2d 1183, 1194 (10th Cir. 1992) (upholding admission of

                                            -5-
evidence related to settlement of entirely different claim);    Breuer Elec. Mfg. Co.

v. Toronado Syst. of America, Inc.      , 687 F.2d 182, 185 (7th Cir. 1982) (upholding

admission of settlement evidence to rebut defendants’ assertion of ignorance as to

certain issues until suit was filed).

       We decline to hold that the court below abused its discretion in admitting

this evidence. O’Hearon’s amended complaint attributes injuries to Castleview

and Perez that her earlier settlement offer identified as resulting from her son’s

negligence. That inconsistency provides a reasonable impeachment basis to admit

the offer and its subsequent acceptance.     2
                                                 We recognize that Rule 408 is designed

to encourage settlement of disputes.       See Eisenberg v. Univ. of New Mexico   , 936

F.2d 1131, 1134 (10th Cir. 1991). But the initial determination as to whether this

settlement information is sufficiently relevant to an adequate evaluation of a

party’s credibility to justify admittance must be made by the trial judge, to whom


       2
          O’Hearon argues on appeal that the defendants used the settlement offer
and release for purposes other than impeachment, in particular to suggest that she
had already been compensated for the damages she sought at trial. But O’Hearon
fails to indicate that she raised any objection to defendants’ suggestion to this
effect, so we will not further examine the matter here.       By the same token, though
appellant did move for the admission of the settlement amount, she nowhere
requested such admission as rebuttal to defendants’ insinuations of double
recovery. We will not review errors alleged in the first instance on appeal.       See
Denison v. Swaco Geolograph Co. , 941 F.2d 1416, 1422 (10th Cir. 1991). Of
course, the proper procedure upon admittance of such a settlement and release
would be to provide a limiting instruction to the jury regarding the purpose for
which it may be used. We cannot tell from the record or briefs before us whether
such a limiting instruction was requested or given.

                                             -6-
we defer absent an abuse of discretion. On the record before us, we conclude

there is no reversible error.

                                              B

          Plaintiff next argues that the trial court abused its discretion in admitting

into evidence her initial complaint and permitting her to be cross-examined on the

assertions therein. The initial complaint, which named only Rick O’Hearon as

defendant, was superseded by amendment and withdrawal prior to trial. According

to plaintiff, its admission constitutes reversible error because, under federal

pleading rules, “factual assertions in pleadings that have been amended or

withdrawn are not admissible as admissions nor binding upon the party that made

them.” Appellant’s Br. at 31. The record does not reveal that O’Hearon objected

to the admission of the prior pleadings below on these grounds. We therefore

review only for plain error.     See Denison v. Swaco Geolograph Co.      , 941 F.2d

1416, 1422 (10th Cir. 1991) (holding where party enters no objection or objects on

different grounds at trial than on appeal, trial court’s rulings are reviewed for plain

error).

          Under that standard, O’Hearon’s argument must fail. Contrary to plaintiff’s

contention, although assertions made in a superseded pleading are not binding

judicial admissions, such assertions may be treated as ordinary evidentiary

admissions. See 5 Charles Alan Wright & Arthur R. Miller,          Federal Practice &


                                             -7-
Procedure § 6726, at 228 (2d ed. 1990). Consequently, they may be admitted

against a party as long as they are not treated as binding in the manner of judicial

admissions and a party’s explanation for any inconsistency or error is given due

weight by the trier-of-fact.   See id. We are satisfied that the district court gave

appellant an adequate opportunity to explain any inconsistencies between factual

assertions in the initial complaint and subsequent pleadings.

       It is, however, unclear why the entire complaint was admitted because cross-

examination of plaintiff as to the factual assertions contained therein would appear

to be sufficient for any proper purpose. The pleading itself, with its caption

naming only Rick O’Hearon as defendant, may have been unduly prejudicial and

insufficiently probative to warrant admission. However, we can find nowhere in

the record where plaintiff objected to the admission of the text of the pleading on

these grounds. Nor has she persuaded us that any such error might amount to

manifest injustice.   See Smith v. Northwest Fin. Acceptance Corp.     , 129 F.3d 1408,

1416 (10th Cir. 1997) (declining to reverse error not preserved at trial absent

showing of manifest injustice).

       In fact, the only objection made below was that the admission of the initial

complaint and subsequent cross-examination of plaintiff as to its general

development and its contents violated the attorney-client privilege. For many of

the questions to which this objection was lodged, however, the elicited information


                                            -8-
was not related to “communication between the client and the attorney . . . made in

confidence of the relationship and under circumstances from which it may

reasonably be assumed that the communication will remain in confidence.”           United

States v. Lopez , 777 F.2d 543, 552 (10th Cir. 1985). Further, to the extent that the

district court may have erred in permitting some of these questions, appellant’s

argument as to how the inclusion of this testimony prejudiced her is difficult to

decipher. See Frontier Ref., Inc. v. Gorman-Rupp, Inc.      , 136 F.3d 695, 705 (1998)

(error in admitting evidence protected by attorney-client privilege “requires

reversal only if it affected the substantial rights of the parties”). In our own

review of the record, we conclude that the admission of this testimony did not so

prejudice plaintiff and decline to find reversible error.

                                            C

      Plaintiff contends that the trial court abused its discretion in not permitting

her to inform the jury that UMMA restricts a plaintiff’s ability to file a malpractice

action prior to completing certain procedures.    See U.C.A. §§ 78-14-8, 78-14-12

(providing that no malpractice action may be brought until plaintiff gives a

prospective defendant at least ninety days notice of an intent to commence an

action and has gone through a pre-litigation panel hearing). She argues that, as a

result, she was unable to explain adequately why her initial complaint, filed prior




                                            -9-
to completion of UMMA’s prelitigation process, named only Rick O’Hearon as a

defendant and made no mention of the hospital or Perez.

      However, plaintiff misconstrues the ruling below on this matter. The trial

court merely barred her attorney from testifying    himself as to these procedures,

concluding that, under the Utah Rules of Professional Responsibility, “a lawyer

shall not act [] as an advocate in a trial in which the lawyer is likely to be a

necessary witness.” Appellant’s App. at 70. It does not appear from the record

that the trial judge prevented plaintiff from presenting an expert to testify as to the

requirements for filing a malpractice action under Utah law, and plaintiff offers no

explanation as to why no expert was presented. Under these circumstances, we

find no abuse of discretion.

                                            III

      Plaintiff challenges the district court’s denial of her motion for a new trial.

We review that decision under an abuse of discretion standard.           See Unit Drilling

Co. v. Enron Oil & Gas Co.     , 108 F.3d 1186, 1193 (10th Cir. 1997).       Considering

each of three plaintiff’s arguments, we conclude none has merit.

      O’Hearon first argues that a new trial or evidentiary hearing is warranted for

alleged juror misconduct. Immediately after the jury retired to deliberate, but

before a verdict was rendered, the trial judge reported to the parties that he had

witnessed a brief communication between one of the defendants’ representatives


                                           -10-
and a juror outside the elevator. Defendants submitted an affidavit from Bonnie

Cook, the offending party, stating that no improper discussion had taken place, and

that she had merely commented on the juror’s jewelry. Subsequent to the

rendering of the verdict, plaintiff moved for a new trial based on this improper

contact. The trial court rejected this motion, ruling as follows:

      No request was made by the plaintiff for any inquiry . . . , nor was any
      objection made . . . until plaintiff filed her Rule 59 motion some ten
      days after the return of the verdict and the discharge of the jury. . . . I
      regard any interaction between Cook and this juror to have been ill-
      advised and improper. Nevertheless, I don’t find evidence has been
      presented sufficient to justify a hearing or as basis for a new trial.
      Moreover any objection by the plaintiff relating to this incident
      should have been made before the jury verdict was rendered and the
      jury was discharged.

Appellees’ Supp. App. at 307-08.

      Plaintiff has pointed to no evidence that causes us to question the trial

court’s assessment of this matter, nor has she explained why an objection or

request for mistrial was not entered at the time she first learned of the improper

contact. Furthermore, she has not demonstrated how the fundamental fairness of

the proceedings may have been affected.    See Vanderwater v. Hatch , 835 F.2d 239,

244 (10th Cir. 1987) (“Subject to exceptions when the conduct alleged clearly

affects the fundamental fairness of the proceedings, an objection alleging juror

misconduct may be rejected if not raised in a timely manner.”). We have expressly

rejected a per se requirement that the trial court conduct an evidentiary hearing


                                          -11-
whenever there is a suggestion of possible juror misconduct arising after trial has

commenced. See United States v. Bradshaw , 787 F.2d 1385, 1390 (10th Cir. 1986)

(“In responding to allegations of juror bias that arise during a trial, the trial court’s

decision as to how to proceed will not be reversed except for an abuse of

discretion.”). We see no reason to conclude that the trial court abused its

discretion in denying this motion.

      O’Hearon also argues for a new trial because a juror requested of the court

clerk the telephone number of one of the defendants’ expert medical witnesses.

According to an affidavit of defendants’ paralegal, defendants did not furnish this

number to the clerk to pass on to that juror until after the jury returned its verdict.

Plaintiff presents no evidence suggesting defendants initiated any contact with this

juror or in any way responded to the juror’s request prior to the verdict. We agree

with the district court that the facts before us are insufficient to suggest any

improper contact between that juror and either the expert or any representative of

the defendants.

      Plaintiff next argues that the defense attorney committed fraud on the court

by arguing in summation that she should have named the hospital and Perez in the

initial complaint. However, she fails to cite to any portion of the record in support

of this argument.   See United States v. Rodriguez-Aguirre    , 108 F.3d 1228, 1238

n.8 (10th Cir. 1997) (appellant bears responsibility of tying relevant facts


                                           -12-
supported by specific record citations to legal contentions). Moreover, from our

own review of the record, we conclude that even were such improper argument

made by defense counsel, plaintiff made no objection, and no statement in the

closing argument rises to the level of plain error.       See Denison , 941 F.2d at 1422.

                                               IV

       Finally, O’Hearon appeals the district court’s denial of her challenge for

cause of a potential juror who stated that she had five aunts who were nurses and

that she had worked in a hospital as a nurse’s aide. When asked by the court if

that would affect her judgment, the potential juror responded: “Probably not. I

think I could make a fair judgment.” Appellant’s App. at 44. Plaintiff argues that

this answer was equivocal and required dismissal of this juror. We review the

district court’s refusal to strike a juror for cause for an abuse of discretion.     See

Getter v. Wal-Mart Stores, Inc.     , 66 F.3d 1119, 1122 (10th Cir. 1995). We

conclude that the district court was well within its discretion when it determined

that the juror’s answer indicated that she thought she could be fair, and

consequently denied plaintiff’s challenge.          Moreover, plaintiff has shown no

prejudice from the denial of this challenge as this juror was ultimately not seated

on the jury.




                                              -13-
                                  V

For the reasons set forth above, the trial court’s rulings are AFFIRMED.

                               ENTERED FOR THE COURT



                               Carlos F. Lucero
                               Circuit Judge




                                 -14-
