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No. 95-1703

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Monty L. Roth, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Homestake Mining Company of *

California, a California *

Corporation, *

*

Appellee. *

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 Submitted: October 20, 1995

 Filed: January 18, 1996 

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Before McMILLIAN, ROSS, and BOWMAN.

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BOWMAN, Circuit Judge.

Monty L. Roth is permanently and totally disabled as a result

of carpal tunnel syndrome that developed while Roth was working for

the Homestake Mining Company. Homestake insures itself against

workers' compensation claims and eventually paid Roth approximately

$326,000 to settle his claim. Homestake had initially refused to

pay the workers' compensation benefits to which Roth was entitled,

and Roth filed this action in the District Court alleging that

Homestake acted in bad faith. The jury found that Homestake had

not denied Roth's claim in bad faith and returned a verdict in
 1

The Honorable Andrew W. Bogue, United States District Judge

for the District of South Dakota.

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favor of Homestake. The District Court1 entered judgment on the

verdict. On appeal, Roth argues that the District Court abused its

discretion by admitting evidence of the $326,000 settlement of the

underlying workers' compensation claim without also allowing Roth

to show that a third of that amount was paid to Roth's attorney.

Roth also argues that the District Court erred when it refused to

submit the issue of punitive damages to the jury. We affirm.

Roth was employed by Homestake from 1972 to 1990. Roth was

unable to work after 1990 as a result of the recurring effects of

carpal tunnel syndrome. Roth was classified as permanently and

totally disabled. Homestake, however, refused to pay the workers'

compensation benefits claimed by Roth. Roth filed a petition in

1991 with the appropriate state agency seeking the benefits that

Homestake had refused to pay. During a hearing before the state

agency some three years later, Homestake agreed to settle the case.

The settlement amounted to approximately $326,000, one third of

which was paid to Roth's attorney. Before Homestake settled Roth's

worker's compensation claim, however, Roth had filed this bad-faith

action in the District Court. Roth sought both actual and punitive

damages from Homestake. Roth claimed that part of his actual

damages was the attorney fees that he had incurred in order to

recover the workers' compensation benefits Homestake wrongly

refused to pay.

Prior to trial, Homestake moved to exclude evidence relating

to the attorney fees incurred by Roth during the underlying

workers' compensation action. Homestake argued that if any

attorney fees were to be awarded in Roth's present action, South

Dakota law required the amount to be set by the court, see S.D.

Codified Laws Ann. § 58-12-3 (1990), and thus there could be no

proper purpose in presenting the evidence in question to the jury.
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The exhibit at issue is the settlement agreement between Roth

and Homestake. The District Court received the exhibit as a part

of Roth's exhibit book, and Homestake did not object to the

admission of the settlement agreement. During the trial Roth

attempted to withdraw the exhibit, but by then counsel for

Homestake, in reliance on the exhibit book, already had referred to

the settlement amount in his opening statement, without objection

from Roth.

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The District Court agreed and granted Homestake's motion. Roth has

not appealed that ruling. However, Roth claims that evidence of

the attorney fees should have been admitted at the trial because

the District Court allowed the jury to see an exhibit that showed

that Roth had received $326,000 from Homestake in settlement of his

workers' compensation claim. Roth argues that it was unfairly

prejudicial to allow the jury to believe that he received $326,000

from Homestake when in fact he received only two thirds of that

amount, the rest going to his attorney. Additionally, Roth argues

that the evidence should not have been admitted because "[b]y

itself the amount of the worker's compensation award is irrelevant

as it does not make it more or less likely that Homestake committed

bad faith." Roth's Brief at 16. "A district court has broad

discretion when deciding whether to admit evidence, and we will not

disturb an evidentiary ruling `absent a clear and prejudicial abuse

of that discretion.'" Hoselton v. Metz Baking Co., 48 F.3d 1056,

1059 (8th Cir.1995) (quoting Laubach v. Otis Elevator Co., 37 F.3d

427, 428-29 (8th Cir. 1994)).

Roth's argument is fatally flawed because it proceeds from the

premise that Homestake introduced the evidence of the settlement

amount. The record reveals, however, that Roth, not Homestake,

introduced the exhibit that included the settlement amount of

approximately $326,000 when he included the exhibit in his

pre-trial exhibit book.2 The evidentiary problems that Roth now

complains about are thus entirely of Roth's own making. Roth

failed to withdraw the exhibit prior to trial even though he knew

that Homestake had moved to exclude evidence of the amount of
 3

At oral argument, for example, counsel for Roth said, "Once

the judge said I couldn't have attorney's fees as a measure of

damages, then I shouldn't have been forced to tell the jury that

Mr. Roth received this $300,000." This characterization of the

District Court's ruling is, of course, inaccurate and misleading.

Had Roth withdrawn the exhibit showing the amount of the settlement

prior to trial, Roth would not have had to reveal that amount to

the jury. Roth failed to withdraw the exhibit in a timely manner

even though he knew that the evidence of attorney fees might be

excluded by the District Court's ruling on Homestake's pending

motion in limine.

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attorney fees paid out of the settlement. "The party introducing

the inadmissible evidence may not complain." 1 McCormick on

Evidence § 57 n.2 (4th ed. 1992). While evidence that is ruled

inadmissible prior to trial can become admissible at trial if an

opponent opens a door to its admission, a litigant may not

construct a back door through which he can bring in such evidence.

In effect, that is what Roth attempted to do by placing the

settlement amount before the jury. If this evidence was

prejudicial and irrelevant without the evidence of Roth's attorney

fees, Roth should not have submitted the exhibit in his exhibit

book.

Despite the clear record of what transpired in the District

Court, Roth apparently argues that (1) he would not have introduced

the settlement amount at trial had he known the court would not

admit evidence of the attorney fees3 and (2) he was surprised by

the court's refusal to admit evidence of the attorney fees. These

contentions are wholly without merit because, prior to trial and

prior to the time that the settlement amount was brought to the

attention of the jury, Homestake had moved to exclude evidence of

the attorney fees incurred by Roth. In other words, Roth invited

the alleged error by introducing an exhibit that included the

allegedly misleading and irrelevant settlement amount. At that

time Roth knew that the District Court might exclude evidence of

Roth's attorney fees. The alleged erroneous ruling thus is not

reversible. An erroneous ruling generally does not constitute
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reversible error when it is invited by the same party who seeks on

appeal to have the ruling overturned. See Dillon v. Nissan Motor

Co., 986 F.2d 263, 269 (8th Cir. 1993). In the circumstances of

this case, we conclude that Roth's argument that the District Court

abused its discretion by admitting evidence of the amount paid by

Homestake in settlement of Roth's workers' compensation claim is

meritless.

We need not consider Roth's argument that the District Court

erred when it refused to submit the issue of punitive damages to

the jury. The jury specifically found that Homestake did not

refuse Roth's claim in bad faith. Homestake cannot be liable for

punitive damages absent a finding of bad faith. Thus any error in

refusing to submit the issue of punitive damages to the jury is

harmless. See Clarkson v. Townsend, 790 F.2d 676, 678 (8th Cir.

1986) (per curiam) (holding that any error in admission of evidence

of damages was harmless because jury found for defendant on issue

of liability).

In sum, any error in the admission of evidence of the $326,000

settlement amount is not reversible because it was invited by Roth.

Any error in refusing to submit to the jury the issue of punitive

damages is harmless because the jury found for Homestake on the

issue of liability. For the foregoing reasons, the judgment of the

District Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.