UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LINDA GRIFFETH; DARIN GRIFFETH, 

 Plaintiffs - Appellants, 

v. 

UNITED STATES OF AMERICA, 

 Defendant - Appellee. 

No. 15-4112 

(D.C. No. 1:13-CV-00019-TC) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

 Linda Griffeth and her husband Darin Griffeth sued the United States for 

negligence after she suffered serious injuries when her motorcycle struck the bucket of a 

front-end loader operated by a United States Forest Service employee. After a bench trial, 

the district court ruled that the Griffeths had failed to prove negligence. On appeal, the 

Griffeths complain that the district court erred in its rulings on several pretrial and 

evidentiary motions and in holding that they had failed to prove negligence by Forest 

Service employees. Because the district court properly exercised its discretion, we affirm. 

 

*

 This order and judgment is not binding precedent, except under the doctrines of law 

of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

 On September 16, 2010, Linda and Darin Griffeth and a friend, Scott Olsen, were 

riding motorcycles on a back-country road in the Uinta-Wasatch-Cache National Forest 

in Utah. As the three rode—Darin first, Linda next, and Olsen last—they approached a 

curve. Coming from the opposite direction was an 8.6-foot wide front-end loader1

 driven 

by James Roberson, an employee of the United States Forest Service (Forest Service). 

Although Darin safely passed the loader, Linda did not—her motorcycle and left knee 

struck the left edge of the loader’s bucket (wedging the gas cover into the bucket). Linda 

was thrown from her motorcycle and suffered a highly comminuted distal fracture to her 

left leg. 

 On May 24, 2012, the Griffeths filed an administrative claim under 28 U.S.C. 

§ 2675(a), alleging negligence by Roberson. Because their “basis of claim” is important 

in this appeal, we quote its full language here: 

Claimant was driving a recreational vehicle north on a back country road in 

Cache County, Utah when she encountered a large rubber tired loader 

belonging to the Forest Service (Equipment Number EN 1714) and being 

driven by Utah Department of Transportation employee James E. 

Roberson. The loader may not have been in working order, was traveling 

too fast for the conditions and the driver was not keeping a proper look out 

and failed to stop or make room in the roadway for the claimant’s vehicle to 

pass. The loader struck claimant’s vehicle causing major damage to the 

vehicle and injury to the claimant. 

 

1

 The width of the loader’s bucket (103.25 inches) was slightly wider than the width 

of the loader’s wheels (97 inches).
3 

Appellee App’x at 46. In the administrative-claims section asking about injuries, Linda 

stated that she “suffered severe injury to her leg and knee. For a time, she has worried she 

would lose the leg. The injury has resulted in complete and permanent disability and loss 

of her job. Linda’s husband has a claim for loss of consortium.” Id.2

On January 28, 2013, the Griffeths sued the government. The deadline to amend 

the pleadings was July 15, 2013. On January 8, 2014, nearly six months after that 

deadline, the Griffeths moved to amend their complaint, seeking to add new theories of 

negligence. Specifically, the Griffeths sought to allege that the Forest Service employees 

acted negligently by not adequately warning of the loader’s presence, by not posting 

proper signage, and by not operating a pilot vehicle ahead of the loader. The magistrate 

judge recommended denying the motion to amend on three grounds: (1) futility because 

the Federal Tort Claims Act (FTCA) bars claims not identified in the administrative 

claim, (2) undue delay in moving to amend, and (3) undue prejudice to the government 

caused by the delay. The district court adopted the magistrate judge’s recommendation. 

Based on that ruling, the government filed a motion in limine to exclude from trial 

all evidence offered to support the pilot-car theory. In addition, the government filed a 

motion in limine to exclude testimony from Kaitlin Phelps, the Griffeths’ designated 

expert witness on motorcycle operation. After receiving briefing and holding a hearing, 

and after hearing testimony from Phelps, the district court granted both motions.

 

2

 In their Complaint, the Griffeths alleged a loss-of-consortium claim on behalf of 

Darin Griffeth.
4 

After resolving these pretrial motions, the district court held a three-day bench 

trial. During its case-in-chief, the government, over the Griffeths’ objection, moved to 

admit deposition testimony from Scott Olsen. Months before the trial, the government 

designated a portion of Olsen’s deposition testimony for use if the Griffeths did not call 

Olsen as a witness. Unlike with other deposition designations by the government, the 

Griffeths did not object to the government’s designation of Olsen’s testimony. The 

district court allowed the government to introduce Olsen’s designated testimony, allowed 

the Griffeths to designate other portions of Olsen’s deposition testimony, and then 

allowed the government to supplement its designations. At the end of the trial, the district 

court ruled that Roberson had not acted negligently.

On appeal, the Griffeths challenge some of the district court’s pretrial rulings, 

evidentiary rulings, and the judgment against them. In essence, as we see it, they ask this 

court to make its own fact findings in place of the district court’s and conclude that 

Roberson was negligent as a matter of law. We decline to do so, and we affirm. 

DISCUSSION 

A. Absence of Negligence 

On appeals from bench trials, we review the district court’s fact findings for clear 

error, and its conclusions of law de novo. Gallardo v. United States, 752 F.3d 865, 870 

(10th Cir. 2014). We find clear error only if a fact finding lacks support in the record or 

if, despite some record support, we still are definitely and firmly convinced that the 

district court made a mistake. Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1266 
5 

(10th Cir. 2002). We review fact findings in the light most favorable to the district court’s 

ruling and uphold them if the record permits. Id. We also “give due regard to the trial 

court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). 

In assessing Roberson’s alleged negligence, the district court held that Utah law 

governs because the accident occurred there. 28 U.S.C. § 1346(b)(1). The district court 

used the following negligence standard from the Utah Supreme Court: a plaintiff alleging 

negligence must prove “four essential elements: (1) that the defendant owed the plaintiff 

a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the 

proximate cause of the plaintiff’s injury, and (4) that the plaintiff in fact suffered injuries 

or damages.” Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993). The district court found 

that Linda Griffeth and Roberson owed each other a duty to operate their vehicles with 

reasonable care, including duties to maintain safe and appropriate speeds, to keep proper 

lookouts, and to reasonably control their vehicles. See Utah Code Ann. § 41-6a-601(1); 

Lee v. Mitchell Funeral Home Ambulance Serv., 606 P.2d 259, 261 (Utah 1980). 

 The district court made extensive fact findings after the trial. On the main issue of 

negligence, the court found that Linda Griffeth was riding a Honda XR100R off-road 

motor bike that was in excellent condition and had a top speed of 35-40 mph. Linda 

Griffeth had one earbud in her ear while she was riding, which she testified was for music 

and phone calls. She also testified that she doesn’t ride with both earbuds in because she 

would be in danger if she could not hear oncoming traffic. The accident took place on 

Sinks Road, one with a crushed-aggregate-rock road base. The road had recently been 
6 

resurfaced, so at the time of the accident, it was in excellent condition. At the accident 

site, the width of Sinks Road was 14.7 feet, and on each side lay another 2 to 2.5 feet of 

looser rock sloping downward to the terrain’s sharp drop-off. Sinks Road is not suitable 

for painted stripes or lanes and is not wide enough for two traffic lanes of automobiles 

traveling at normal speed. Users of the road, therefore, must slow and move to the right 

when they approach and pass oncoming traffic.

The court credited the testimony of Mark Warner, the government’s expert 

witness, who testified that Roberson drove the loader as close as possible to the right side 

of the road, leaving “quite a bit of space” for Linda Griffeth to pass. Appellant App’x at 

793. A photo taken by Warner showed a steep embankment to the right of the road. 

Warner also testified that Linda Griffeth could have seen the loader from 200 feet3

 and 

had “ample opportunity to recognize the loader and safely come to a stop if she would 

have been riding at a reasonable speed.” Appellant App’x at 794-95. Linda Griffeth, 

Warner concluded, caused the accident. 

The court also credited Roberson’s version of events. Roberson testified that 

before driving on the roadway he turned on the loader’s headlights, hazard lights, flasher 

lights, and beacon. Forest Service employee Shawn Palmer was driving a road grader 

(wider than the loader) ahead of Roberson—meaning that all three motorcyclists passed 

 

3

 Warner measured the 200 feet from the front of the loader’s bucket in its postaccident, resting position. But the district court could have relied on other parts of 

Warner’s testimony to conclude that the loader became visible to Linda Griffeth 

before it reached that spot.
7 

Palmer in the road grader before they reached Roberson in the loader—and Forest 

Service employee Steven Stucki was driving a pickup truck behind him. Because it was 

the end of the work week, the Forest Service employees were taking the construction 

equipment to a shed about ten miles from their worksite. Roberson testified that he was 

driving as far right on the road as possible and that if he had been driving any further to 

the right, he would have risked the loader tipping over because of the steep ledge. 

Roberson said he slowed down when he saw the first motorcyclist. The first rider waved 

and Roberson waved back. When he then saw Linda Griffeth coming straight for his 

loader, he slammed his foot brake, pulled his emergency brake, and looked to see if he 

could turn to avoid her. The loader skidded and at the time of the collision had either 

fully stopped or was near stopping. 

 The Griffeths challenge the district court’s finding that Roberson was not 

negligent. First, they allege that Roberson drove the loader too fast and challenge the 

district court’s fact finding that Roberson was driving the loader between 15 and 18 mph. 

In arguing this, they apparently ask that we conclude that the district court clearly erred in 

relying on Warner, who testified that Roberson had been driving at a reasonable speed of 

15-18 mph when he first saw Linda Griffeth and hit the loader’s brakes. Warner’s 

testimony relied on analysis of the loader’s skid marks. Warner works for Collision 

Safety Engineering, an accident-reconstruction and safety-research company, and has 

investigated more than 300 accidents over his thirty years in that business. Warner also 

has a bachelor’s and a master’s degree in mechanical engineering, is a member of, and 
8 

has taken classes with, the Society of Automotive Engineers, has published about a dozen 

articles, and has made several presentations on accident reconstruction.

The Griffeths point out that Roberson testified that he slowed down before he hit 

the brakes. Therefore, they argue, before the tires locked and skidded, the loader must 

have been traveling faster than the speed that the court found. Next, the Griffeths argue 

that the testimony of Forest Service employees Palmer and Stucki strengthen the case that 

Roberson’s driving speed must have been faster: Palmer’s testimony that Palmer was 

driving 25-30 mph and passed by the Griffeth group a mere 0.7 miles from the accident 

site;4

 Stucki’s testimony that Stucki, though in a truck capable of driving faster than 

Roberson’s loader, did not catch up with Roberson until Stucki had driven for five miles.5

We see no clear error in the district court’s fact finding on the loader’s speed at the 

relevant time—when he struck his brakes after seeing Linda Griffeth approaching. The 

record supports this finding. In reaching its loader-speed determination, the district court 

relied on expert testimony and testimony from people at or near the accident. In addition, 

the district court’s fact finding depends on its credibility determinations, which we have 

no basis to challenge. Our role is not to retry the case. 

 

4

 Despite this short distance, Linda and Darin Griffeth also testified that they did not 

reach Roberson and the site of the accident for another 20-25 minutes.

5

 As we understand it, the Griffeths’ argument on the loader’s speed assumes a steady 

speed from leaving the work site until the accident. 
9 

 Second, the Griffeths challenge the district court’s determination about whether 

Roberson could have driven closer to the right edge of the road and enabled Linda 

Griffeth to avoid the loader.6

 But both Warner and Roberson testified that the loader was 

as close to the right edge as possible without tipping over. Roberson testified about the 

danger presented by “a ledge, a drop off” to the right of the road. Appellant App’x at 490. 

The sharp decline beginning at the road’s shoulder and continuing to the ground below is 

evident from the photo exhibits. We certainly cannot say that the district court clearly 

erred in concluding that Roberson was not negligent. 

In addition, the Griffeths challenge the district court’s finding that Roberson “was 

on his side of [the] road.” Appellant Reply Br. at 6-7, 9. The Griffeths take this as 

meaning that the entire loader was on Roberson’s side of the road, an incorrect 

characterization given that the loader’s 8.6 foot width exceeded half the 14.7 foot 

roadway. Even Roberson confirmed that in his testimony. But we don’t see the district 

court saying that the entire loader was on Roberson’s side of the road. Instead, we see the 

district court finding that Roberson had been driving as close to the right edge of Sinks 

Road as possible without going off the right-hand ledge. The district court did not 

subscribe to the Griffeths’ apparent theory of liability—that Roberson must be negligent 

if he remained on the road instead of rolling down the slope abutting the road. And in 

 

6

 In a related argument concerning whether Roberson acted negligently, the Griffeths 

dispute the position of Linda Griffeth on the roadway. The issue is at essence a 

dispute between the credibility and accuracy of conflicting testimony—Linda 

Griffeth’s versus Mark Warner’s and James Roberson’s—and so fell within the 

district court’s discretion.
10 

deciding the issue, the district court knew that both of Linda Griffeth’s companions were 

able to pass the loader without incident. 

 Third, the Griffeths argue that the district court erred in determining that Linda 

Griffeth could see the loader from 200 feet away. The district court heard conflicting 

evidence on the visibility of the loader in Linda Griffeth’s sight line. Warner testified that 

the loader would have been visible from 200 feet to an attentive, approaching driver. 

Griffeth testified otherwise. Counsel for the Griffeths challenged Warner’s testimony 

during cross examination, and now in the briefs, but Warner explained his conclusion and 

the district court agreed with it. The district court did not clearly err in crediting Warner’s 

account.7

B. Motion to Amend 

Though courts should freely grant leave to amend when justice requires it, Fed. R. 

Civ. P. 15(a)(2), we review district-court denials of that leave for abuse of discretion. 

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). District courts may 

consider a wide range of factors, including undue delay, bad faith, dilatory motive, undue 

prejudice, and futility. Id. A district court abuses its discretion when it clearly errs; goes 

beyond the permissible choices; or acts arbitrarily, capriciously, whimsically, or 

 

7

 And because the Griffeths did not raise their negligence per se claim based on a 

Utah statute (Utah Code Ann. § 41-6a-1708 (repealed 2015)) in either their 

administrative claim or at the district court, we view it as forfeited. Paycom Payroll, 

LLC v. Richison, 758 F.3d 1198, 1203 (10th Cir. 2014). 
11 

manifestly unreasonably. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 

2015). 

 The district court properly based its denial of the motion to amend on three valid 

factors: futility, undue delay, and unfair prejudice. The court held that the amendment 

would be futile because the FTCA waives the federal government’s sovereign immunity 

only when the plaintiff has exhausted that claim administratively.8

 28 U.S.C. § 2675(a). 

The administrative claim must give notice of the underlying facts that will be used in the 

civil suit. Staggs v. United States ex rel. Dep’t Health & Human Servs., 425 F.3d 881, 

884 (10th Cir. 2005). In reviewing the Griffeths’ administrative claim, the district court 

found that it had simply alleged Roberson’s negligence in driving the loader, not any 

negligent failure by Roberson or others to adequately warn, to properly sign, or to use a 

pilot car. Thus, the court held that the FTCA barred the new claims. 

The court also based its denial of the motion to amend on grounds of undue delay 

(the Griffeths did not file the motion to amend until nearly six months after the deadline 

for amendments to pleadings) and of undue prejudice to the government. In their appeal, 

the Griffeths haven’t challenged either the undue-delay or unfair-prejudice justifications 

for the denial. So they waived their responses to those justifications, Zia Shadows, L.L.C. 

v. City of Las Cruces, 829 F.3d 1232, 1239 n.3 (10th Cir. 2016), and those waivers 

furnish independent bases to affirm the district court’s ruling.

 

8

 In other words, the agency must make a final denial of the claim, which occurs 

either when the agency actually denies the claim or fails to deny the claim six months 

after a claimant makes the claim. 28 U.S.C. § 2675(a). 
12 

C. Pilot-Car Evidence 

We review a district court’s rulings on motions in limine for abuse of discretion, 

Seeley v. Chase, 443 F.3d 1290, 1293 (10th Cir. 2006), and likewise for exclusions of 

evidence, Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 939 (10th Cir. 2005). Only if we 

firmly believe that the district court made a clear error in judgment will we reverse. 

Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10th Cir. 2005). Otherwise, district courts have 

wide discretion for evidentiary rulings. Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 

1246 (10th Cir. 1998). Irrelevant evidence is inadmissible. Fed. R. Evid. 402. 

 By denying the Griffeths’ motion to amend their complaint, the district court kept 

them from asserting a negligence claim based on lack of a pilot car. The Griffeths argue 

that the district court erred in granting the motion in limine excluding evidence on the 

government’s failure to operate a pilot car ahead of the loader. Absent being allowed to 

amend their complaint to state a pilot-car claim, the evidence would be irrelevant. Thus, 

we affirm the district court’s granting of a motion in limine on this issue.

D. Deposition Testimony of Scott Olsen 

We review a district court’s admission of evidence for abuse of discretion. Ryan 

Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1170 (10th Cir. 

2013). At least 30 days before trial, parties must designate any testimony they wish to 

admit through the deposition transcript rather than by live testimony. Fed. R. Civ. P.

26(a)(3)(A)(ii), (B). The opposing party then has 14 days to object. Fed. R. Civ. P. 
13 

26(a)(3)(B). The opposing party waives any objection not made within that time unless 

the court excuses the failure for good cause. Id.9

Here, the government properly designated pages of Olsen’s testimony and advised 

it would move to admit that testimony if the Griffeths did not call him as a witness. The 

Griffeths timely objected to deposition designations for three other witnesses, but did not 

object to Olsen’s. Thus, the district court correctly admitted the transcript into evidence 

over their late objection to the designation, which they had waived.

E. Kaitlin Phelps 

We review for abuse of discretion a district court’s exclusion of expert witnesses. 

United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). Proponents of expert 

testimony have the burden to show admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 

(10th Cir. 2013). A witness may testify as an expert if she is qualified as such by 

“knowledge, skill, experience, training, or education,” if her specialized knowledge “will 

help the trier of fact to understand the evidence or to determine a fact in issue,” if her 

testimony “is based on sufficient facts or data” and “is the product of reliable principles 

and methods,” and if she “has reliably applied the principles and methods to the facts of 

the case.” Fed. R. Evid. 702. In evaluating the admissibility of expert testimony, the 

district court first considers whether the witness qualifies as an expert, and then whether 

the proffered testimony is both relevant and reliable, as assessed by its underlying 

reasoning and methodology. Nacchio, 555 F.3d at 1241; Conroy, 707 F.3d at 1168. 

 

9

 Except for objections under Fed. R. Evid. 402 or 403. Fed. R. Civ. P. 26(a)(3)(B). 
14 

Experience alone may qualify a witness as an expert, but the witness still must explain 

how her experience is sufficient to lead to a conclusion based on the facts of the case. 

United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003). Though it has many 

components, the standard is generally liberal and flexible. Daubert v. Merrell Dow 

Pharm., Inc., 509 U.S. 579, 588, 594 (1993). 

 The Griffeths sought to have Phelps testify that Linda Griffeth operated her 

motorcycle safely and reasonably on the day of the accident. But the district court held 

that Kaitlin Phelps did not satisfy either part of the expert-witness test. At the experttestimony hearing, Phelps testified that she had frequent recreational experience riding 

motorcycles. She had no formal training or licenses, she had never ridden on the road 

where the accident took place before making her conclusions,10 and she had never 

testified as an expert on motorcycle riding. Nor did Phelps explain how her experience 

supported her conclusions about Linda Griffeth’s accident. Given those deficiencies, the 

district court properly exercised its discretion to conclude that Phelps was not qualified as 

an expert and that her testimony would not be the product of reliable methods and 

principles. See Milne v. USA Cycling Inc., 575 F.3d 1120, 1133-34 (10th Cir. 2009); 

Nacchio, 555 F.3d at 1258. Phelps’s conclusory statement that her experience supported 

her conclusions is certainly insufficient. See Nacchio, 555 F.3d at 1258. The Griffeths 

protest that Phelps’s testimony would have greatly aided the trier of fact, but any benefit 

 

10 She had ridden on Sinks Road by the time of the trial. 
15 

that Phelps’s expert testimony might have provided is of no importance if she was not in 

fact qualified to testify as an expert.

CONCLUSION 

 For the reasons above, we affirm the pretrial and evidentiary rulings and the 

judgment of the district court. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge