                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                FEB 25 2000
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 LARRY E. CRESSLER,

          Plaintiff-Appellant,
 v.

 JOHN RAPP NEUENSCHWANDER,
 M.D., JOHN RAND                                             No. 98-3173
 NEUENSCHWANDER, M.D.,                                 (D.C. No. 95-CIV-1034)
                                                         (District of Kansas)
          Defendants-Appellees,

 ROSS E. STADALMAN, M.D.,

          Defendant.


                                 ORDER AND JUDGMENT*


Before BALDOCK, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.


      Larry Cressler (“Cressler”) brought suit in the United States District Court for the

District of Kansas against Dr. John Rapp Neuenschwander, his son, Dr. John Rand

Neuenschwander (hereinafter referred to as “the Defendants”), and Dr. Ross E.

Stadalman for medical malpractice based on an alleged failure to properly diagnose and


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
treat malignant melanoma on the bottom of Cressler’s right foot. By amended complaint,

Dr. Stadalman was not named as a defendant. Trial by jury resulted in a defense verdict

for the Defendants.1 Judgment to that effect was duly entered. Thereafter, Cressler filed

a timely motion for new trial. After hearing, that motion was denied. Cressler appeals.

       On appeal, Cressler raises two grounds for reversal: (1) the district court erred in

allowing two of the Defendants’ expert witnesses (Dr. Jewell and Dr. Reed2) to testify

“beyond” their respective reports which had previously been given his counsel and filed

with the district court; and (2) the district court further erred in refusing to allow

Cressler’s attorney to point out to the jury, in closing argument, that the Defendants had

the same liability insurance carrier as two of their other expert witnesses, namely a Dr.

Schwindle and a Dr. Sweet. Both of these matters were urged by Cressler in his post-trial

motion for a new trial. In denying that motion, the district court was of the view that

neither Dr. Jewell nor Dr. Reed in their trial testimony had gone beyond their previously

filed reports and that it had not erred in refusing to allow Cressler’s attorney to argue

insurance coverage to the jury.




       1
        The form of verdict submitted to the jury consisted of a series of questions. The
first question was “Do you find any of the parties to be at fault?” The jury answered that
question “No.” The jury was instructed that if they answered the first question “No” they
should skip the succeeding questions and proceed directly to question 13, which was
whether the answer to question number 1 was agreed to by eight jurors. That question
was answered “Yes.”
       2
        Dr. Reed’s testimony was in the form of a video deposition.

                                              -2-
       Prior to trial, Cressler filed a so-called motion to strike any expert testimony of

Drs. Jewell and Reed. The motion was apparently based on a mistaken belief that counsel

for the Defendants had not designated Drs. Jewell and Reed as their expert witnesses. A

magistrate judge denied that motion and in so doing stated as follows: “However, the

opinion of those two experts are limited to those opinions already provided to the

plaintiff. In addition, plaintiff will be permitted to depose these two experts.” Counsel

for Cressler did not depose either Dr. Jewell nor Dr. Reed. However, shortly prior to

trial, defense counsel took a video deposition of Dr. Reed in Houston, Texas, it appearing

that Dr. Reed because of a physical ailment would not be able to travel to Kansas for the

trial. Counsel for Cressler participated in that video deposition.

       In his motion for a new trial, Cressler claimed that the trial judge, in effect,

“overruled” the magistrate judge and allowed Drs. Jewell and Reed to testify “beyond the

scope” of their respective reports. In denying the motion for a new trial, the district court

observed that this particular matter had been “addressed at trial, and the court found that

neither witness transcended the bounds of the pre-trial order.” In other words, the district

court was of the view that the testimony of Drs. Jewell and Reed was within the scope of

their respective reports previously filed with the court and furnished opposing counsel.

We review a district court’s inclusion or exclusion of evidence for an abuse of discretion,

and our study of the record indicates that there was no abuse of discretion by the district

court in allowing Drs. Jewell and Reed to testify as they did. Cartier v. Jackson, 59 F.3d


                                             -3-
1046, 1048 (10th Cir. 1995).3

       At trial it was somehow brought out that the Defendants and two of their expert

witnesses, a Dr. Schwindle and a Dr. Sweet, were insured for medical malpractice by the

same liability insurance carrier. Shortly prior to closing argument, Cressler’s counsel

advised the court that he proposed to make comment to the jury in his closing argument

that the Defendants and the two expert witnesses were insured by the same “mutual”

insurance company, and that any award given Cressler by the jury would affect future

premiums paid by the Defendants and their expert witnesses. Such, according to counsel,

would be indicative of possible bias on the part of the two expert witnesses. The district

court sustained Defendants’ objection thereto and ordered Cressler’s counsel not to make

such argument, since there was no evidence that the insurance carrier in question was a

mutual company or that a verdict for Cressler would increase premiums of the Defendants

and their expert witnesses. We find no error in the district court’s handling of this

matter. On appeal, counsel appears to argue that all he wanted to comment on in his

argument to the jury was that the Defendants and “two of the Defendants’ expert

witnesses were covered by the same liability insurer.” That is not the way it was

presented at trial. The district court did not err in refusing to allow counsel to point out to



       3
        In Moss v. Feldmeyer, 979 F.2d 1454, 1459 (10th Cir. 1992), we said a “decision
to allow or prohibit testimony of witnesses not described or listed in the pretrial order
rests with the sound discretion of the trial judge and will not be disturbed [on appeal]
absent an abuse of discretion.”

                                             -4-
the jury that the Defendants and two of their expert witnesses were insured for

malpractice by the same insurance company, which was a “mutual” company, and that a

verdict for Cressler would result in higher premiums for the Defendants and their expert

witnesses.4

       Judgment affirmed.

                                                  Entered for the Court

                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




       In Herring v. New York, 422 U.S. 853, 862 (1975), the Supreme Court spoke as
       4

follows: “The presiding judge must be and is given great latitude in controlling the
duration and limiting the scope of closing summations. He may limit counsel to a
reasonable time and may terminate argument when continuation would be repetitive or
redundant. He may ensure that argument does not stray unduly from the mark, or
otherwise impede the fair and orderly conduct of the trial. In all these respects he must
have broad discretion.”
       To the same effect as Herring, see United States v. Glass, 128 F.3d 1398, 1408
(10th Cir. 1997) and Cole v. Tansy, 926 F.2d 955, 958 (10th Cir. 1991).

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