                                                                        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

 ELVIE FINKS,

          Plaintiff-Appellant,
 v.
                                                       No. 98-1433
 LONGFORD EQUIPMENT                                (D.C. No. 97-B-1196)
 INTERNATIONAL, a foreign                          (District of Colorado)
 corporation,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, Circuit Judges, and ROGERS, ** Senior District
Judge.




      Elvie Finks brought this diversity action against Longford Equipment

International, claiming she was injured by a defective card folding machine

manufactured by Longford. A jury found instead that Ms. Finks’ injuries were the

      *
       This order and judgment is not binding precedent, except under the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.
      The parties have requested this case be submitted without oral argument,
and we have honored that request and determined the matter on the briefs.
      **
         The Honorable Richard D. Rogers, Senior District Judge for the U.S.
District Court for the District of Kansas, sitting by designation.
result of her negligence and that of her employer, Deluxe Current, Inc. (Current).

Ms. Finks now contends that verdict was the product of the district court’s denial

of her motion in limine to voir dire potential jurors on the issue of “lawsuit

abuse.” 1 Further, she maintains the district court abused its discretion under

Colorado District Court Local Rule 47.2 in prohibiting her from communicating

with members of the jury to determine whether they had been affected by a two-

day hiatus in their deliberations. The two errors, she contends, eviscerated her

Seventh Amendment right to an impartial jury. We disagree and affirm.

      Ms. Finks worked for Current for eight years operating the Longford card

folding machine. One day in 1995, when she discovered the cards were not being

folded at the “score section,” she attempted to adjust them. Her right hand

slipped into the rollers, and she suffered an abrasion on her hand. No bones were

broken and she had no nerve damage. Nonetheless, she sustained a permanent

chronic pain condition.

      Ms. Finks brought this action against Longford, alleging its failure to

provide the machine with a guard over the rollers constituted a defective design.




      The term is undefined in the briefs leaving it for us to speculate about its
      1

meaning.

                                         -2-
Longford designated Current as a non-party at fault under Colorado Revised

Statutes § 3-21-111.5 2 based on Current’s alterations to the machine.

         Prior to trial, Ms. Finks’ attorney, claiming Longford’s counsel was known

to interject what plaintiff’s counsel denominated “lawsuit abuse” into his

defenses, filed a motion in limine asking the court to prohibit any such arguments.

The court denied the motion, prompting Ms. Finks’ counsel to ask the court to

voir dire the jury with specific questions relating to their attitudes on the right to

sue, money damages, personal injury lawyers, and damage awards. The court

refused to ask these specific questions and instead inquired of the entire jury

panel:

         Do any of you disagree with this proposition: Each case must be
         analyzed and decided on its own merits. Does anybody have any
         quarrel with that proposition?

         What we do ask of the jury is that the jury render its decision only on
         the basis of the facts determined from the evidence presented in this
         trial and the law that is given to you to apply that evidence. Do any
         of you have any question about your ability to do that?

         The jury subsequently returned a special verdict finding that Longford was

not negligent; did not produce a defective machine which caused the injuries; and




        Colo. Rev. Stat. § 13-21-111.5(4) was intended to eliminate the harsh
         2

effects of joint and several liability and substituted a rule that each wrongdoer is
liable only for the portion of a plaintiff’s injuries that is represented by the tort-
feasor’s own percentage of fault.

                                          -3-
that Current and Ms. Finks were negligent, apportioning 55% to Current and 45%

to Ms. Finks.

      In this appeal, Ms. Finks contends although after jury selection the trial

court acknowledged the defense apparently intended to show Ms. Finks’ motive

was to “fake, exaggerate or malinger,” Longford was permitted to permeate the

trial with “lawsuit abuse” innuendo. 3 Thus, she argues she was deprived of her

Seventh Amendment right to a fair trial because she was unable to meaningfully

exercise her challenges for cause, not knowing which jurors were predisposed to a

“lawsuit abuse” argument.

      We initially observe that Ms. Finks’ argument seemingly attacks the efforts

of the defense to challenge her veracity and the weight of the evidence she

presented. Indeed, we believe many of the statements to which she ascribes the

sobriquet, “lawsuit abuse,” fairly question those elements of the case. We know

of no proposition that suggests it is inappropriate for either side of a lawsuit to

bring the veracity of a party or the weight of the evidence to the attention of the


      3
        Ms. Finks cites defense counsel’s referring in his opening statement to her
“trivial injury” and her blaming “the fact that she cannot work on the fact that she
had had a real minor pinching of the fingers.” Defense counsel told the jury she
blamed her headaches, leg pain and backaches on the machine and wants
$600,000 for having her fingers pinched. In closing argument, defense counsel
characterized the event as Ms. Finks’ opportunity to get out of a boring job “by
some magic event” so she’d never have to work again. Counsel told the jury he,
too, had fantasized about never having to work again - and “that’s what you’re
being asked to do for bruised fingers.”

                                         -4-
jury. We also note none of the statements here questioned by Ms. Finks were

objected to at trial, nor did she object when the court did not pose the voir dire

questions she had suggested. Nonetheless, we shall proceed to consider the

arguments raised.

      Ms. Finks first contends the district court erred by refusing to voir dire the

venire on the questions submitted by her counsel. She argues the defense was

thus able to employ a “tactic” she could not counter because she was unable to

determine potential bias on the part of the jury. As a result, she maintains, her

Seventh Amendment right to a trial by an impartial jury was violated.

      We start with the proposition that voir dire is conducted in federal trials at

the discretion of the court. Fed. R. Civ. P. 47(a). Smith v. Vicorp, Inc., 107

F.3d 816, 818 (10th Cir. 1997). The content of the voir dire is also founded upon

that discretion. Id. Our review here, then, is to determine whether the district

court abused its discretion.

      Ms. Finks posits that the purpose of voir dire is to allow the trial court “to

remove prospective jurors who will not be able to impartially follow the court’s

instructions and evaluate the evidence.” She further argues proper voir dire “is to

prove each prospective juror’s state of mind to enable the trial judge to determine

actual bias and to allow counsel to assess suspected bias or prejudice.” To

buttress those points, Ms. Finks cites Darbin v. Nourse, 664 F.2d 1109, 1113 (9th


                                         -5-
Cir. 1981), for the proposition that if an “inquiry requested by counsel is directed

toward an important aspect of the litigation about which members of the public

may be expected to have strong feelings or prejudices, the court should

adequately inquire into the subject on voir dire.”

      All that having been argued, however, Ms. Finks fails to establish to our

satisfaction how the voir dire conducted by the district court missed the mark or

constituted an abuse of discretion. First of all, the plaintiff did not elucidate the

“important aspect” of this case to which her voir dire questions were directed. As

we have already noted, the statements to which she now objects facially appear to

be fair game. Moreover, there was nothing about the nature of this case that was

inherently provocative of bias or the suspicion of bias on the part of prospective

jurors. There had been no pretrial publicity about it, and nothing suggests Ms.

Finks herself would have manifest any persona that would provoke jurors to close

their minds against her. Nor was there anything inherent in the relationship

between plaintiff and defendant upon which potential jury bias might have been

presumed. Second, the questions she wanted to have asked were perhaps more

detailed, but no more prone to disclose important bias than those asked by the

trial court. Third, she did not renew her request for additional voir dire, or

suggest to the trial court why its questions were inadequate. Although hindsight




                                          -6-
indicates the court might have asked some or all of those questions, we cannot say

its failure to do so constituted an abuse of discretion.

      Indeed, Ms. Finks contends the purpose underlying the submission of her

suggested voir dire was to determine whether the jury would decide the case on

the basis of the facts in evidence and the law as instructed by the court. Equally,

those questions sought to determine whether prospective jurors were aware of

their obligation to decide the case on its own merits. 4 Those factors were inherent

in the voir dire actually conducted by the court.

      Whether the voir dire could have been more searching or whether better

questions could have been asked is not the issue here. The issue is whether the

district court properly exercised its discretion, and we see nothing in this case to

indicate it did not.

      In a second contention, Ms. Finks asserts the jury deliberated for one hour

on a Friday afternoon before the court excused it for the weekend, “a total of two

days.” She maintains given that lapse of time, it was necessary to ask jurors

whether anything happened over the weekend or whether the break in

deliberations altered their feelings about the case. Counsel also suggests



      4
        We believe it notable those questions also could be fairly viewed to only
ferret out a juror’s attitude on the law and not to help the district court determine
impartiality. See Kanekoa v. City and County of Honolulu, 879 F.2d 607 (9th
Cir. 1989).

                                          -7-
questioning would have enabled her to determine whether any jurors were in fact

biased because of “lawsuit abuse.”

       Colorado District Court Local Rule 47.2 prohibits counsel’s

communications with jurors after a trial except by permission of the court. We

are unpersuaded by the argument. Ms. Finks has not carried her burden of

showing the district court erred.

       First, nothing in the record even suggests the possibility of the exercise of

extrajudicial influence on the jurors. We therefore see no basis for the contention

the district court abused its discretion by denying the request. Second, Ms. Finks

has presented no authority even tangentially supporting the theory that in the

absence of some concrete fact, it is proper to invade the province of the jury,

post-trial, to seek juror bias.

       AFFIRMED.



                                        ENTERED FOR THE COURT


                                        John C. Porfilio
                                        Senior Circuit Judge




                                         -8-
