                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                            APR 3 2000
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                                Clerk


    TOMMY D. GEE,

                Plaintiff-Appellant,

    v.                                                   No. 99-6169
                                                     (D.C. No. 98-CV-337)
    MONTE DEE SHEPHERD; UNITED                           (W.D. Okla.)
    STATES OF AMERICA,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , ANDERSON , and LUCERO , Circuit Judges.




         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). Therefore,

appellant’s request for oral argument is denied, and the case is 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff Tommy D. Gee appeals a jury verdict in favor of defendant

Monte D. Shepherd and the district court’s judgment following a bench trial in

favor of the defendant United States on plaintiff’s action seeking damages for

injuries he allegedly received as a result of an automobile accident.   1
                                                                            Jurisdiction

over plaintiff’s case against the United States was based on the Federal Tort

Claims Act, 28 U.S.C. § 2679 and 28 U.S.C. § 1346. The district court exercised

supplemental jurisdiction over plaintiff’s action against Shepherd pursuant to 28

U.S.C. § 1367(a). The case was tried simultaneously to the court on plaintiff’s

claims against the United States and to the jury on plaintiff’s claims against

Shepherd. The jury returned a verdict in favor of Shepherd and the court entered

judgment in favor of the United States. Plaintiff appeals.

       Plaintiff raises two questions for this court’s consideration on appeal:

(1) whether the district court erred in refusing to admit into evidence the

investigating police officer’s report and opinion; and (2) whether the jury verdict

and judgment and the district court’s decision and judgment for defendants are




1
       Although the United States filed a brief in this case, it asserts that
plaintiff’s appeal only seeks relief as to the jury verdict and judgment entered in
favor of defendant Shepherd. We agree. In his brief, plaintiff requests this court
vacate the jury verdict and remand for a new trial. He does not ask this court to
disturb the district court’s entry of judgment in favor of the United States.
Therefore, we will address plaintiff’s claims of error only as they relate to the
jury verdict in favor of defendant Shepherd.

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inconsistent. Following careful review of the parties’ briefs and the record on

appeal, we discern no error and affirm.


                                       Background

       We will recite here only those facts germane to our decision in this case.

On November 7, 1997, plaintiff was a passenger in a vehicle driven by Shepherd

when Shepherd attempted to make a left turn out of a convenience store into

eastbound traffic. A government vehicle, driven by United States Army Sergeant

Don Majors, traveling westbound, struck the rear of Shepherd’s vehicle. At the

time of the accident Majors was acting within the scope of his employment. In

his negligence actions against defendants, plaintiff alleged that his knee was

seriously injured in the accident.

       The trial testimony evinced a difference of opinion as to whether Majors

had a red or green light and as to whether Shepherd’s view of Majors’ automobile

was blocked by other traffic. The investigating police officer testified that he was

told by Shepherd that plaintiff was not hurt and had left the scene.    See

Appellant’s App. at 325. This was supported by Majors’ testimony that he did not

see plaintiff at the accident scene.   See id. at 347-48. Plaintiff’s doctor testified

that, considering the nature of the injury, “as a rule,” plaintiff would have been in

pain with a noticeable limp. Appellee’s Supp. App. at 17-18. The doctor also

testified that he did not see plaintiff for treatment of the injury until two months

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after the accident, and that he connected the injury with the accident based solely

on plaintiff’s version of the circumstances.         Id. at 19. During plaintiff’s

testimony, he admitted that, in his view, Shepherd did nothing wrong at the time

of the accident.   See Appellant’s App. at 297-98.

       During trial, the United States offered into evidence the report of the

investigating police officer. Over the objection of Shepherd’s counsel, the court

initially held this evidence admissible. During the officer’s actual testimony as to

his opinion of fault, however, Shepherd again objected, and the court, after

reconsidering, decided that the police officer had not been qualified as an expert,

and that this testimony was not needed to assist the jury in determining the cause

of the accident. The court withdrew the accident report as an exhibit, finding that

the report also contained inadmissible statements. Plaintiff did not object to these

rulings, but moved for admission of the report with certain portions redacted. The

court overruled the motion. The police officer continued to testify as to general

law regarding entering a roadway from a private drive into oncoming traffic, and

compliance with traffic lights. Plaintiff did not cross-examine the officer.


                                Admission of Evidence

       First, plaintiff asserts that the district court erred in excluding the opinion

and report of the investigating police officer. When we review a trial court's

decision to admit or exclude evidence, we apply an abuse of discretion standard.

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See United States v. Harmon , 918 F.2d 115, 117 (10th Cir.1990). Where a trial

court excludes evidence and the offering party properly objects at trial, we will

reverse the court’s decision only if the exclusion of the evidence constitutes an

abuse of discretion that results in “‘manifest injustice to the parties.’”     Thompson

v. State Farm Fire & Casualty Co.      , 34 F.3d 932, 939 (10th Cir. 1994) (quoting

Angelo v. Armstrong World Indus., Inc.,       11 F.3d 957, 960 (10th Cir. 1993));   see

also United States v. Ortiz , 804 F.2d 1161, 1164 n. 2 (10th Cir. 1986) (holding

reversal for abuse of discretion appropriate only after reviewing court develops a

“definite and firm conviction [the trial court] made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.”). “Where the

verdict more probably than not was untainted by the error, the error is harmless

and a new trial is not required.”    U.S. Indus., Inc. v. Touche Ross & Co    ., 854 F.2d

1223, 1252 (10th Cir. 1988) (footnotes omitted),        implied overruling on other

grounds recognized by Anixter v. Home-Stake Prod           . Co. , 77 F.3d 1215, 1231

(10th Cir. 1996).

       Federal Rule of Evidence 704 allows the admission of expert opinion

evidence even if it “embraces an ultimate issue to be decided by the trier of fact.”

The rule does not, however, allow the testifying expert to tell the jury what result

they should reach.    See id. Advisory Committee Note. Testimony of this type is

often excluded if it takes over the jury’s function in deciding the facts.     See Frase


                                              -5-
v. Henry , 444 F.2d 1228, 1231 (10th Cir. 1971) (holding that an expert witness

may offer an opinion on the ultimate issue only if the opinion “aids the jury in the

interpretation of technical facts or to assist in understanding the material in

evidence”).

       In arguing exclusion error, plaintiff relies on the Supreme Court’s decision

in Beech Aircraft Corp. v. Rainey    , 488 U.S. 153 (1988) (holding an aircraft

accident investigative report containing opinions and conclusions trustworthy and

admissible in a case where the cause of the accident was extremely difficult to

determine), and this court’s decision in   Frase, 444 F.2d 1228 (interpreting a

Kansas rule of evidence to hold an auto accident investigating officer’s opinion

admissible because the testimony aided the jury in synthesizing the facts which

they would not have been able to synthesize themselves). Contrary to plaintiff’s

argument, these cases do not support a conclusion that an investigating officer’s

reports and opinions are either always admissible or inadmissible. Here, there

was no technical information requiring interpretation or any indication that the

jury could not make its own independent judgment of fault based on the facts and

evidence. Under these circumstances, we believe that the police officer’s

testimony would have “come[] perilously close to telling the jury,” who was at

fault. Id. at 1231. Therefore, under the facts and circumstances in this case, we




                                           -6-
hold that exclusion of the officer’s report and testimony was not an abuse of the

district court’s discretion.

       Even if we were to conclude differently, any error in the district court’s

exclusion of the evidence would be harmless. In order to prevail against

Shepherd on his claim of negligence, under Oklahoma law, plaintiff had to prove

by a preponderance of the evidence: “(1) a duty owed by the defendant to the

plaintiff to use ordinary care, (2) a breach of that duty, and (3) an injury

proximately caused by the defendant’s breach of duty.”       Brown v. Wal-Mart

Stores, Inc. , 11 F.3d 1559, 1563 (10th Cir.1993);    Thompson v. Presbyterian

Hosp., Inc ., 652 P.2d 260, 263 (Okla. 1982).

       When a trial court errs in the admission or exclusion of evidence, this court

will reverse the jury’s verdict “only if the error prejudicially affects a substantial

right of a party.”   Sanjuan v. IBP, Inc ., 160 F.3d 1291, 1296 (10th Cir. 1998);   see

also U.S. Indus., Inc. , 854 F.2d at 1252. This kind of evidentiary error is

prejudicial only if we reasonably conclude that the jury would have reached a

different result with admission of the evidence.     See Sanjuan , 160 F.3d at 1296.

Following a careful review of the transcript of this trial, we cannot reasonably

conclude that the jury would have found in favor of plaintiff had it had the benefit

of the investigating officer’s report and testimony. Therefore, even if the district




                                            -7-
court did err in excluding the disputed evidence, that error did not sufficiently

prejudice the plaintiff to warrant vacating the jury’s verdict.


                                 Inconsistent Verdicts

       Plaintiff contends that because he was a “blame-free passenger,” the jury

verdict in favor of Shepherd and the court’s judgment in favor of the United

States were inconsistent. He asserts that the fact that no party was found to be at

fault indicates the jury’s confusion “by the parties’ testimony and the lack of

substantive testimony from the investigating officer.” Appellant’s Br. at 11.

       Initially, we must determine whether we may review this issue. “A party’s

failure to object to a general jury verdict on the ground of inconsistency before

the jury is discharged constitutes waiver, unless the verdict is inconsistent on its

face such that entry of judgment upon the verdict is plain error.”   Oja v.

Howmedica, Inc. 111 F.3d 782, 790 (10th Cir. 1997). Here, plaintiff has not

pointed us to any place in the record where his counsel objected on the ground of

inconsistency before the jury was discharged. We therefore must determine

whether the verdict was facially inconsistent such that entry of judgment would be

considered plain error.

       Plaintiff bases his claim of inconsistency on his contention that, because he

was without fault, one of the defendants had to be found at fault. Although

plaintiff cites this court to several cases in which verdicts were found to be

                                            -8-
inconsistent, none of the cases provide any support for plaintiff’s contention.      See

Mitchell v. State Farm Fire & Casualty Co.          , 15 F.3d 959 (10th Cir. 1994)

(holding verdict for defendant on breach of contract claim and verdict for

plaintiffs on bad faith claim to be inconsistent);      Cheney v. Moler , 285 F.2d 116

(10th Cir. 1960) (holding jury verdict a nullity when jury returned a verdict for

plaintiff without damages and awarded a verdict against defendant on defendant’s

counterclaim); Hopkins v. Coen , 431 F.2d 1055 (6th Cir. 1970) (holding verdict

inconsistent when jury completed four verdict forms -- two in favor of the

plaintiffs and two in favor of the defendants).

       After receiving the evidence and hearing the testimony, the jury concluded that

plaintiff had not met his burden of proof of negligence against Shepherd. Based on

the same evidence and testimony, the district court concluded that plaintiff had not

proved his case of negligence against the United States.                We fail to see the

inconsistency in these decisions. Therefore, the verdict of the jury and the judgment

of the court are not facially inconsistent, and we consider plaintiff’s inconsistent

verdict claim waived.    See Oja , 111 F.3d at 790.

       AFFIRMED.

                                                           Entered for the Court



                                                           Stephen H. Anderson
                                                           Circuit Judge

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