*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

(continued...)

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 5 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEANNIE L. LANE,

Plaintiff-Appellee,

 v.

WAL-MART STORES, INC., a

Delaware corporation, acting by and

through its officers, agents, employees

and/or representatives,

Defendant-Appellant.

and

JEANNIE L. LANE,

Plaintiff-Appellant,

 v.

WAL-MART STORES, INC., a

Delaware corporation, acting by and

through its officers, agents, employees

and/or representatives,

Defendant-Appellee.

No. 97-8121

(D.C. No. 96-CV-1053)

(D. Wyo.)

No. 97-8124

(D.C. No. 96-CV-1053)

(D. Wyo.)

ORDER AND JUDGMENT*
*

(...continued)

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.

-2-

Before EBEL, BRISCOE, and LUCERO, Circuit Judges.

Defendant Wal-Mart Stores, Inc., appeals a jury verdict in favor of plaintiff

Jeannie Lane on her negligence claim arising out of injuries she suffered while

employed by Wal-Mart. Lane cross-appeals, challenging the district court’s

decision to allow Wal-Mart a set-off against the verdict for amounts paid to Lane

by a privately-funded workers compensation program. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

I.

Lane was injured in early December 1992 when she fell from a fifteen-foot

ladder while stocking merchandise at a Wal-Mart store in Gillette, Wyoming. She

suffered additional injuries on December 15, 1992, when she fell from an eightfoot ladder while attempting to retrieve merchandise from a shelf at the same

store. Lane filed this diversity action on October 1, 1996, asserting negligence

and breach of contract claims and seeking actual and punitive damages. Lane

abandoned her breach of contract claim before trial. The issue of punitive

damages did not reach the jury. As regards her negligence claims, a jury found

Wal-Mart was ninety-five percent at fault and Lane was five percent at fault. The
-3-

jury found Lane suffered total economic damages of $360,684.80. The district

court reduced the damage award by the five percent fault the jury found

attributable to Lane and by $60,000.70 for payments made under a privatelyfunded workers compensation program. Judgment was entered in favor of Lane in

the amount of $282,649.86.

II.

Wal-Mart’s Appeal

Exclusion of evidence of workers compensation payments

Wal-Mart contends the district court should not have applied Wyo. Stat.

Ann. § 1-1-108 to prevent admission of evidence that most of Lane’s medical bills

and a portion of her lost wages had already been paid. We review a decision to

exclude evidence for abuse of discretion. Cartier v. Jackson , 59 F.3d 1046, 1048

(10th Cir. 1995). In conducting this review, we “will not disturb the

determination absent a distinct showing it was based on a clearly erroneous

finding of fact or an erroneous conclusion of law or manifests a clear error of

judgment.” Id. Even if there was error in the exclusion of evidence, we will set

aside a jury verdict only if the error prejudicially affected a substantial right. See

Polys v. Trans-Colorado Airlines, Inc. , 941 F.2d 1404, 1407 (10th Cir. 1991).

Wal-Mart does not contribute to the state workers compensation fund. 

Instead, it provides no-fault workers compensation coverage to its employees
1

 The statute provides:

No voluntary partial payment of a claim based on alleged liability for

injury or property damage shall be construed as an admission of fault or

liability, or as a waiver or release of claim by the person receiving payment. 

Such payment is not admissible as evidence in any action for the purpose of

determining the amount of any judgment, with respect to the parties to the

occurrence from which the claim arose. . . . After entry of judgment, any

such payment shall be treated as a credit and deducted from the amount of

the judgment. . . . No voluntary partial payments shall be construed to

reduce the amount of damages which may be pleaded and proved in a court

proceeding between the parties.

-4-

through a wholly-owned subsidiary, Claims Management, Inc. Lane filed a

motion in limine prior to trial asking the district court to exclude all evidence of

benefit payments made to her by Claims Management, pursuant to Wyo. Stat.

Ann. § 1-1-108 1 and/or the collateral source rule. The court granted Lane’s

motion, concluding the evidence was inadmissible under § 1-1-108. Wal-Mart

argues the excluded evidence was necessary to respond to Lane’s alleged attempts

to portray Wal-Mart as an “uncaring” corporation that refused to accept

responsibility for injuries suffered by its employees. In this regard, Wal-Mart

cites Lane’s closing argument, in which counsel asked the jury to “send a message

to the corporate community . . . that they should accept responsibility for injuries

that they’ve caused their employees.” App. at 305. Wal-Mart also cites Lane’s

rebuttal closing argument where counsel argued his client’s future opportunities

were limited because of a “corporate citizen who does not care.” Id. at 312.

After reviewing the record on appeal, we find it unnecessary to determine
-5-

whether the district court correctly construed § 1-1-108. Even assuming the court

misconstrued the statute and improperly excluded the evidence, the resulting error

was harmless. The evidence at issue was irrelevant to any of the issues posed to

the jury (i.e., allocation of fault and calculation of total economic damages

suffered). Although Wal-Mart maintains the evidence was necessary to respond

to Lane’s characterization of Wal-Mart as an “uncaring” corporation, the jury was

not asked to determine that issue. Indeed, the court specifically instructed the

jury that, “[i]n fixing the amount of [the damage] award,” it was not allowed to

“include in, or add to an otherwise just award, any sum for the purpose of

punishing Wal-Mart, or to serve as an example or warning for others.” Suppl.

App. at 371. Even if the evidence had been admitted, it would not have affected

the verdict. We specifically note in this regard that Wal-Mart does not challenge

the amount of the jury’s damage award. Further, when Lane’s counsel made the

arguments Wal-Mart now challenges, Wal-Mart’s counsel did not object. By

failing to object, Wal-Mart waived any argument it may have had concerning the

statements made by Lane’s counsel in closing argument. See Glenn v. Cessna

Aircraft Co. , 32 F.3d 1462, 1465 (10th Cir. 1994) (“A party who waits until the

jury returns an unfavorable verdict to complain about improper comments during .

. . closing arguments is bound by that risky decision and should not be granted

relief.”).
-6-

Jury instructions

Wal-Mart contends instruction No. 17 was not supported by the evidence

and was an erroneous statement of the law when read in conjunction with the

other instructions, and that the instruction improperly emphasized Lane’s theory

of the case. The instruction provided:

The plaintiff’s supervisors owed a duty to plaintiff to perform

those duties entrusted to them by their employer. As supervisors,

those duties included the requirement of performing such reasonable

inspection and repair of the workplace, including inspection and

repair of any equipment utilized at the workplace, and taking such

preventive steps as would be necessary and reasonable under the

circumstances.

Suppl. App. at 363. Wal-Mart argued the instruction was “duplicative . . . of

[instruction] 16 to a certain extent,” “unnecessary,” and “not supported by the

evidence.” Id. at 291-92. Wal-Mart contends the instruction was not supported

by the evidence presented at trial and not a correct statement of the law.

We review de novo whether the district court’s instructions, considered as a

whole, properly stated the applicable law and focused the jury on the relevant

inquiry. Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1509 (10th Cir.), cert. denied

118 S. Ct. 626 (1997). An instruction should not be given if it is not supported by

the evidence at trial. FDIC v. Clark , 978 F.2d 1541, 1550 (10th Cir. 1992). We

will reverse for a faulty jury instruction if we have “substantial doubt whether the

instructions, considered as a whole, properly guided the jury in its deliberations.” 
-7-

Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1454 (10th Cir. 1997).

At the outset, we are not convinced Wal-Mart’s initial argument that

instruction No. 17 is contrary to Wyoming law was raised at trial. Wal-Mart

objected only on the basis that the instruction was “duplicative,” “unnecessary,”

and “not supported by the evidence.” Even assuming Wal-Mart properly

preserved the issue, we conclude the instruction, when considered with the other

instructions given, properly comported with Wyoming law. Wal-Mart

acknowledges, as set forth in instruction No. 16, that Wyoming law requires an

employer “to provide its employees with a reasonably safe place to work,” and

“must exercise the care and skill that a person of ordinary prudence would

observe under the circumstances in furnishing employees with reasonably safe

equipment.” Suppl. App. at 362; see Case v. Goss , 776 P.2d 188, 192 (Wyo.

1989) (employer “is emburdened with the duty to provide his workers with a

reasonably safe place to work”); Engen v. Rambler Copper and Platinum Co. , 121

P. 867, 874 (1912) (it is master’s duty to furnish employees with reasonably safe

machinery, appliances, tools, and a place to work, and to keep the same in

reasonable safe repair). Wal-Mart further acknowledges, as set forth in

instruction No. 3, that “it may act only through natural persons as its agents or

employees.” Suppl. App. at 346; see generally Case , 776 P.2d at 192 (“the

realities of modern industry dictate that many of the legal duties owed by the
-8-

employer to his employees are in fact delegated by the employer to subordinate

supervisory personnel”). Thus, the question of which Wal-Mart employee(s) bore

the burden of ensuring the safety of the workplace (including repair of broken

ladders) depended upon evidence presented at trial. See id. (in determining

existence and nature of duties owed by supervisory personnel to other employees,

court must examine evidence, including arrangements between employer and

supervisory personnel). Presumably, the district court concluded the evidence

was sufficient to demonstrate that Wal-Mart’s supervisory employees bore this

burden.

We also reject Wal-Mart’s remaining argument that instruction No. 17 was

not supported by the evidence. Under Wal-Mart’s preventive maintenance

program, “all employees [including supervisory employees] were [expressly]

directed to look for ways to prevent accidents and use common sense in

eliminating hazards.” App. at 140. More importantly, the evidence

overwhelmingly indicated management was well aware of the poor condition of

the ladders but failed to take any action to repair or replace them. Three WalMart employees testified that during store meetings (which occurred at least

weekly, and often daily), employees routinely complained to the store manager

and assistant managers about the poor condition of the ladders, but that

management responded it did not have money in the store budget to correct the
-9-

problem. Another employee testified the store’s safety committee notified store

management about the poor condition of the ladders. According to employee

Amy Bartow, the ladders “were a big issue” in the three years she had worked at

the store, but “nothing ever happened” and employees had no choice but to use

the damaged ladders. Id. at 451.

Testimony of Dr. Painter

In a convoluted argument, Wal-Mart contends the district court erred in

allowing Lane “to improperly utilize duplicative designations of expert witnesses

in violation of” the court’s Local Rule 26(h) (now incorporated as Local Rule

26(e)(1)), Wal-Mart’s Br. at 14, which governs discovery of expert testimony and

provides that “parties are limited to the designation of one expert witness to

testify for each particular field of expertise.” Id. at 34. We review the district

court’s application of its local rules for abuse of discretion. See Hernandez v.

George , 793 F.2d 264, 269 (10th Cir. 1986).

To understand Wal-Mart’s argument, it is necessary to review the

background of the designation of Dr. Rebecca Painter as an expert witness. Lane

timely filed her designation of expert witnesses approximately four months prior

to trial. The designation listed four expert medical witnesses: (1) Dr. Painter, an

internist who treated Lane; (2) Dr. David Healow, an expert in pain management
-10-

who treated Lane; (3) Dr. Joel Berenbeim, a doctor of osteopathy who treated

Lane; and (4) Dr. Raisa Gringauz, a physiatrist who was board certified in the

field of physical medicine and rehabilitation, and who treated Lane. The

designation described the witnesses’ probable testimony. With respect to Drs.

Painter, Healow, and Berenbeim, the designation further indicated each would

“address, discuss and critique the findings and conclusions offered by other

experts and physicians involved in this case.” Id. at 21, 22, 23.

Wal-Mart filed no objection to Lane’s designation, but relied on the

designation in determining depositions prior to trial. Counsel for Wal-Mart

allegedly contacted counsel for Lane and asked if he intended to call Drs.

Healow, Berenbeim, and Gringauz as witnesses at trial. Lane’s counsel indicated

he would probably call Dr. Healow. With respect to Dr. Painter, Wal-Mart

assumed she would be called as a witness, but that she would only testify “in

accordance with her records regarding her role as a treating physician of Lane.” 

Wal-Mart’s Op. Br. at 35. Notwithstanding its assumption that Dr. Painter would

testify at trial, Wal-Mart chose not to depose her. Lane’s counsel asserts WalMart chose not to depose Dr. Painter because it did not want to pay her deposition

fee of $500 per hour.

Wal-Mart filed a motion in limine on the eve of trial, arguing although

Lane’s designation indicated Dr. Painter would “‘address, discuss and critique the
-11-

findings and conclusions’” of other medical experts, her “testimony should be

limited to her role as a treating physician.” App. at 45. Wal-Mart offered no

basis for its argument and did not cite Local Rule 26(h). The district court

rejected Wal-Mart’s motion in limine at trial, concluding Lane’s designation was

“reasonably specific,” and that Dr. Painter’s testimony would be limited to the

scope of the designation. Wal-Mart filed a motion for judgment as a matter of

law after trial, arguing in part that Dr. Painter’s testimony should have been

limited. The court rejected the motion, concluding Wal-Mart “was sufficiently

notified of the nature of Dr. Painter’s testimony,” and was “not prejudiced as a

result of the Court’s decision to allow her to testify regarding the opinions of

other experts.” Id. at 96.

We find no merit to Wal-Mart’s arguments. Wal-Mart made a tactical

decision not to depose Dr. Painter even though it assumed she would be called as

a witness. Wal-Mart attempted at the last minute to limit the scope of Dr.

Painter’s trial testimony, without any basis in law or fact. We find no abuse of

discretion in allowing Lane to introduce the testimony of Dr. Painter, all of which

fell within the scope of the topics outlined in Lane’s designation.

Frivolous appeal sanctions

Lane contends Wal-Mart’s appeal is frivolous and that we should remand

the case “to the district court for determination of sanctions,” pursuant to Fed. R.
-12-

App. P. 38. Lane’s Op. Br. at 41. Because Lane’s request is contained in an

appellate brief rather than in a “separately filed motion” as required by Rule 38,

we have no power to act. As the Advisory Committee Notes to Rule 38 indicate:

“Only a motion, the purpose of which is to request sanctions, is sufficient” to

provide an opposing party with notice of a request for sanctions. Alternatively,

the court itself may give notice to an appellant that it is considering sanctions and

allow appellant an opportunity to respond.

III.

Lane’s Cross-Appeal

Setoff of amounts paid by Claims Management

Lane contends the district court erred in allowing Wal-Mart a set-off,

pursuant to Wyo. Stat. Ann. § 1-1-108, for the amounts paid to her by Claims

Management. According to Lane, Wal-Mart should have been judicially estopped

from obtaining the set-off because of its prior assertions during the litigation that

Claims Management was a “separate corporation” and there was “no contractual

relationship” between Claims Management and Wal-Mart. Lane’s Op. Br. at 42. 

Given these assertions, Lane argues the collateral source rule should operate to

bar Wal-Mart from benefitting from payments made by a third party.

We conclude the doctrine of invited error precludes Lane from challenging

the district court’s set-off decision. “Under the doctrine of invited error, if a
2

 Although there is disagreement concerning whether in a diversity case the

doctrine of judicial estoppel is controlled by federal or state law, see , e.g. ,

Helfand v. Gerson , 105 F.3d 530, 534 (9th Cir. 1997) (federal law controls);

Original Appalachian Artworks, Inc. v. S. Diamond Assoc., Inc. , 44 F.3d 925, 930

(11th Cir. 1995) (state law controls), we have consistently applied state law in

such situations. See Tri-State Generation & Trans. Assoc., Inc. v. Shoshone

(continued...)

-13-

party induces action by a court, the party cannot argue error because the court

took such action.” Engle v. State , 821 P.2d 1285, 1287 (Wyo. 1991); see also

Schott v. State , 864 P.2d 38, 39 (Wyo. 1993) (“the principle of ‘invited error’ is

that if, during the progress of a cause, a party requests or moves the court to make

a ruling which is actually erroneous, and the court does so, that party cannot take

advantage of the error on appeal or review”). Here, Lane herself requested,

pursuant to a pretrial motion in limine, that the district court apply § 1-1-108. As

previously noted, the court granted Lane’s motion and precluded Wal-Mart from

introducing evidence of payments made by Claims Management. Under the law

of the case doctrine, see Lyden v. Winer , 913 P.2d 451, 454 (Wyo. 1996), the

court also applied § 1-1-108 after the verdict to allow Wal-Mart a set-off for

payments made by Claims Management. Because application of § 1-1-108 was

the result of Lane’s motion, she is in no position to now challenge that decision

on appeal.

Even assuming Lane could properly challenge the set-off decision, there is

no merit to her “judicial estoppel” argument. Under Wyoming law, 2 the doctrine
2

(...continued)

River Power, Inc. , 874 F.2d 1346, 1363 (10th Cir. 1989); Ellis v. Arkansas

Louisiana Gas Co. , 609 F.2d 436, 440-41 (10th Cir. 1979); Reno v. Beckett , 555

F.2d 757, 770 (10th Cir. 1977). Accordingly, we apply Wyoming law in this case.

-14-

of judicial estoppel “precludes a party from asserting inconsistent positions in

different judicial proceedings.” Ottema v. State ex rel. , 968 P.2d 41, 45 (Wyo.

1998). The inconsistent positions allegedly taken by Wal-Mart were during the

course of a single judicial proceeding. Thus, the doctrine did not apply and did

not prevent Wal-Mart from arguing it was aligned with Claims Management for

purposes of receiving a set-off.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge