*This order and judgment is not binding precedent, except under the doctrines of law of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. 

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

### MAR 20 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAROLE POTTS; JAMES POTTS, Plaintiff - Appellant, v. SAM'S WHOLESALE CLUB, doing business as Sam's Wholesale Club, Wal-Mart Stores, Inc., Defendant - Appellee. No. 95-5253 (D.C. No. CV-94-184-W) (Northern District of Oklahoma)

ORDER AND JUDGMENT *

Before ANDERSON , LUCERO and MURPHY , Circuit Judges.

Carole and James Potts sued Sam’s Wholesale Club fo r damages arising from injuries Carole suffered when she fell at a Sa m’s Club store. The parties agreed to proceed before a magistrate, and after a trial the jury returned a verdict for the defendant. Plaintiffs appeal, asserting th at the trial court erred in instructing the jury, in allowing the defendant to present testimony of two-2-

witnesses via deposition, and in excluding defendant’s expert witness’s report, which conflicted with his later report and testimony he presented at trial. We conclude that the magistrate acted properly in all respects, and affirm. A brief statement of the facts is sufficient for ou r analysis. While visiting a Sam’s Club store, Carole Potts allegedly slipped onresidue of automobile tires, injuring herself sufficiently to require several su rgeries. Her claimed damages included medical bills, pain and suffering, and emo tional distress. Her husband’s claim is predicated on loss of consortium. Defenda nt raised several factual issues to counter plaintiffs’ claims. In particular, it c ontended that Mrs. Potts’s injuries were caused by medical problems unrelated to her fa ll at Sam’s Club. Although not made part of the record, the jury apparently re turned a general verdict in favor of defendant. Plaintiffs’ first claimed error involves Jury Instruction No. 8, which addresses the consideration to be given the opinionof medical experts. In particular, plaintiffs take issue with the language in the instruction that “the opinions of medical experts are to be based on a re asonable degree of medical certainty. However, absolute certainty is not requ ired.” Appellants’ App. at 217. This instruction was added after closing arguments, in response to remarks by plaintiffs’ counsel, who stated in closing argumentthat “there were questions asked about certainty, a medical certainty. Now, I represent to you that a medical-3-

certainty is not what you are here to decide. You’ re here to decide what’s more probable than not.” Appellants’ App. at 145; see also id. at 149 (“Anytime anyone asked a question of certainty, then you shou ld remember that the proper question should be, ‘what’s more probable than not. ’”). Plaintiffs challenge both the propriety of the instruction and the timing of its addition. The question of whether this jury instruction was e rroneous is one of state law, but federal law determines whether the instruc tion in question affected the instructions as a whole and requires reversal of th e verdict. Dillard & Sons v. Burnup & Sims , 51 F.3d 910, 915 (10th Cir. 1995). Whether a jury was properly instructed is a question we review de novo. UnitedStates v. Lee , 54 F.3d 1534, 1536 (10th Cir. 1995). “We consider all the jury h eard and, from [the] standpoint of the jury, decide not whether the charge was faul tless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine these issues.” Un ited States v. Voss , 82 F.3d 1521, 1529 (10th Cir.) (quotations omitted), cert. denied , 117 S. Ct. 226 (1996). We conclude that the jury instruction was not erron eous. Requiring medical opinions regarding causation to b e made to a “reasonable degree of medical certainty” is a well- established evidentiary standard, and Oklahoma appears to follow other stat es that have adopted the general standard. aSee McKellips v. Saint Francis Hosp., Inc. ,741 P.2d 467, 472-4-

(Okla. 1987) (quoting cases from other jurisdiction s); cf. New York Life Ins. Co.
v. Kramer , 324 P.2d 270, 272, 273 (Okla. 1957) (crediting me dical opinion made to a “reasonable degree of medical certainty”). Pl aintiffs contend that McKellips is limited to medical malpractice cases, but this a ssertion is belied by the language of McKellips itself: “In Oklahoma, the general principles of p roof of causation in a medical malpractice action are the s ame as in an ordinary negligence case.” 741 P.2d at 471. Moreover, plai ntiffs assert that McKellips has been limited by the recent case of Hardy v. Sou thwestern Bell Telephone Co. , 910 P.2d 1024 (Okla. 1996). Hardy , however, reaffirms McKellips , which, in addition to stating the general rule of causation, established an exception for cases involving medical malpractice causing lost ch ance of survival to the decedent; the McKellips exception would allow plaintiffs to recover for me dical malpractice creating an increased risk of death eve n if experts could not opine that the malpractice was the cause of death. McKel lips , 741 P.2d at 474. Hardy limited the McKellips exception to cases involving medical malpractice c reating a lost chance of survival. Hardy , 910 P.2d at 1030. The court’s jury instructions in this case properly stated the applicable law involv ing opinions of medical experts. We also find no error in the court’s addition of th e jury instruction after closing argument. We review the trial court’s deci sion to accept a proffered instruction for an abuse of discretion. Lyon Dev. Co. v. Business Men’s-5-

Assurance Co. Of Am. , 76 F.3d 1118, 1124 (10th Cir. 1996). Moreover, i t is clear from the rules of procedure that the trial co urt retains considerable discretion on the timing of the jury instructions. See Fed. R. Civ. P. 51 (“The court, at its election, may instruct the jury befor e or after argument, or both.”). Given plaintiffs’ attorney’s closing argument, the instruction became necessary to avoid confusion. His remarks could be construed as allowing the jury to consider any medical opinion, regardless whether it was made to a reasonable degree of medical certainty. The added instruction was offer ed to cure any confusion plaintiffs’ counsel may have created in closing arg ument. The magistrate did not abuse his discretion in adding the medical opinion instruction after closing argument. Plaintiffs’ second and third issues are even more s traightforward. They contend the court improperly permitted defendant to read witness deposition testimony into evidence without proving the witness es were unable to appear and without giving plaintiffs adequate notice. We gene rally review the trial court’s decisions regarding witness testimony for an abuse of discretion. See , e.g. , FDIC v. Oldenburg , 34 F.3d 1529, 1556 (10th Cir. 1994) (reviewing fo r abuse of discretion trial court’s decision on proposed testi mony by witness not listed on pretrial order). In this case, both witnesses who testified by deposition were listed in the pretrial order and, contrary to plain tiffs’ assertion, the magistrate-6-

judge satisfied himself that the witnesses were unavailable upon representations made by defendant’s counsel. The federal rules exp licitly allow depositions to be used at trial if the witness is unavailable to test ify in person. Fed. R. Civ. P. 32(a)(3). Under this rule, no notice need be given the opposing party unless the witness is available but “exceptional circumstances ” exist to permit the deposition testimony. Compare Fed. R. Civ. P. 32(a)(3)(E) (requiring notice to u se deposition testimony in open court if no showing of unavailability). In finding the witnesses to be unavailable, the magistrate acc epted the representation of defendant’s counsel that the two deposition witness es were truly unavailable. The magistrate did not abuse his discretion in allowing them to testify by deposition. Finally, plaintiffs argue that the trial court erre d in refusing to admit as an exhibit a report prepared by defendant’s medical expert, a report that conflicted with his later report and with his testimony at tri al. Both of the expert’s reports, as well as his testimony at trial, involved his opi nion regarding the sources of Mrs. Potts’s injuries. Plaintiffs were allowed to present the medical expert as a witness in their case-in-chief, even though he was not listed in the pretrial order. The court, however, would not allow the earlier rep ort to be presented as an exhibit, treating it as hearsay evidence. Instead, the court permitted plaintiffs to use the document to impeach the expert’s opinion as expressed in his later report and his trial testimony.-7-

We review the trial court’s exclusion of evidence f or an abuse of discretion. Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). We will not disturb the trial court’s decision unless we ar e left with the firm and definite conviction that it made a clear error in judgment o r exceeded the bounds of permissible choice under the circumstances. Moorhart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994). Plaintiffs argue that the f irst report, provided by the expert in preparation for testimony and disclosed p ursuant to Fed. R. Civ. P. 26(a)(2), is not hearsay as defined by Fed. R. Evid . 801, specifically, Rule 801(d)(1). That rule reads: “A statement is not he arsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent wi th the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” Fed. R. Evi d. 801(d). While the earlier report may indeed have been inconsistent with the e xpert’s later opinion, plaintiffs do not assert that the document contains a statement “given under oath . . . at a trial, hearing, or other proceeding, or in a deposition.” The magistrate judge was therefore correct to conclude that the re port was hearsay. Given that the expert testified extensively at trial as to his opinion, including the reasons his opinion changed from his first report, the judge ac ted within his discretion in refusing to admit the report as an exhibit.-8-

AFFIRMED

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge