UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KENNETH MICHAEL TRENTADUE, The Estate of by and through its Personal Representative Carmen Aguilar, et al,Plaintiff-Appellee/CrossAppellant,

v. STUART LEE, et al.,Defendant-Appellant/CrossAppellee. Nos. 01-6444, 02-6037 02-6030 and 02-6051

ORDER Filed February 3, 2005

Before O’BRIEN, Circuit Judge , BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

The petitions for panel rehearing filed on November9, 2004, November 26, 2004, and December 27, 2004, are granted in part. A revised opinion is attached. The petitions for rehearing en banc was transmittedto all of the judges of the court who are in regular active service as requ ired by Fed. R. App. P. 35. As no member of the panel and no judge in regular acti ve service on the court-2-

requested that the court be polled, the petitions are denied. Judge McConnell did not participate.

Entered for the Court Patrick J. Fisher, Clerk

By: Deputy Clerk

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

### FEB 3 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH MICHAEL TRENTADUE, The Estate of by and through its Personal Representative Carmen Aguilar,Plaintiff-Appellee/CrossAppellant, and CARMEN AGUILAR TRENTADUE, individually and as Personal Representative for the Estate of Kenneth Michael Trentadue and Guardian Ad Litem for Vito Miguel Trentadue; WILMA LOU TRENTADUE; JESSE JAMES TRENTADUE; DONNA TRENTADUE SWEENEY; LEE FREDERICK TRENTADUE; JESSE CARL TRENTADUE,

Plaintiffs-Appellees,

v. UNITED STATES OF AMERICA; DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF PRISONS; FEDERAL BUREAU OF INVESTIGATION, Defendants, Nos. 01-6444 and 02-6037-2-

STUART LEE,Defendant-Appellant/CrossAppellee, KENNETH FREEMAN, Defendant-Cross-Appellee.

____________________ UNITED STATES OF AMERICA, Amicus Curiae.

KENNETH MICHAEL TRENTADUE, The Estate of by and through its Personal Representative Carmen Aguilar; CARMEN AGUILAR TRENTADUE, individually and as Personal Representative for the Estate of Kenneth Michael Trentadue and Guardian Ad Litem for Vito Miguel Trentadue; WILMA LOU TRENTADUE; JESSE JAMES TRENTADUE; DONNA TRENTADUE SWEENEY; LEE FREDERICK TRENTADUE; JESSE CARL TRENTADUE, Plaintiffs-Appellees/Cross - Appellants,

v. UNITED STATES OF AMERICA, Defendant-Appellant/Cross- Appellee, Nos. 02-6030 and 02-6051-3-

and DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF PRISONS; FEDERAL BUREAU OF INVESTIGATION; STUART LEE, Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 97 849 F)

Michael E. Robinson, Department of Justice (Robert D. McCallum, Jr., Assistant Attorney General, Robert G. McCampbell, United Stat es Attorney, and Robert S. Greenspan, Attorney, Department of Justice, with hi m on the briefs), Washington, D.C., for Defendants-Appellants/Cross-Appellees Uni ted States of America, Department of Justice, Federal Bureau of Prisons, and Federal Bureau of Investigations, and for Amicus Curiae United States in support of Stuart Lee. Robert D. Baron (Gloyd McCoy with him on the brief) , Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for Defendant-Appellant/Cr oss-Appellee Stuart Lee. Charles P. Sampson, Suitter Axland (Joe B. Reynolds and R. Scott Adams, Adams & Associates, Oklahoma City, Oklahoma, with him on the briefs) Salt Lake City, Utah, for Plaintiffs-Appellees/Cross-Appellants. Barry W. Nance, Kenneth R. Nance, filed a brief forCross-Appellee Kenneth Freeman.

Before O’BRIEN, Circuit Judge, BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

TYMKOVICH , Circuit Judge.-4-

The United States appeals from an adverse judgment awarding the Estate of Kenneth M. Trentadue and members of Trentadue’s fam ily $1.1 million in damages under the Federal Tort Claims Act (FTCA), 2 8 U.S.C. §§ 1346(b), 2671- 80 (2000), for the intentional infliction of emotio nal distress following Trentadue’s death at a federal detention center in Oklahoma. Prison official Stuart A. Lee appeals the judgment entered on a jury verdict finding him liable for deliberate indifference to Trentadue’s medical needs under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). The Estate and family members (Trentadues or plaint iffs) in turn raise twenty-one issues on cross-appeal. They primarily contend that the district court committed clear error in finding Trentadue committed suicide in his prison cell and in finding that federal officials did not engage in th e intentional destruction of evidence. The principal issues presented by the government’s appeal are (1) whether plaintiffs have exhausted the FTCA’s notice require ments; (2) whether the FTCA’s misrepresentation exception bars plaintiffs’ intentional infliction of emotional distress claim; (3) whether plaintiffs have satisfied the elements of intentional infliction of emotional distress under Oklahoma law; and (4) whether the FTCA’s judgment bar provision precludes imposit ion of the Bivens judgment-5-

against Lee. Exercising jurisdiction pursuant to 2 8 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proce edings. I. Background A. Introduction Kenneth M. Trentadue was arrested in California in June 1995 for driving while intoxicated. During the booking procedure po lice determined that Trentadue had an outstanding warrant based on feder al parole violations committed after his 1988 release from prison, where he had served six years for bank robbery. He was arrested for these parole vio lations and held in local jails for the next few weeks. On August 18, 1995, the Bureau of Prisons (BOP) sent Trentadue to the Federal Transfer Center (FTC) in Oklahoma City for a parole revocation hearing. Upon arrival, Trentadue was placed in the Parole Vi olator’s Unit of the prison where he made several calls to family members and a ssured them he would not be at the FTC long. Two days later, on August 20, Tre ntadue asked to be placed in protective custody and prison officials moved him t o a cell in the prison’s Special Housing Unit (SHU). At 3:02 a.m. the following morning, guards found Trentadue’s blood-soaked body in his cell hanging f rom a noose made of torn bed sheets. He was pronounced dead a few minutes later

.-6-

The circumstances surrounding Trentadue’s death rai se troubling questions. Trentadue’s family maintains Trentadue was murderedby prison guards or another inmate, and claims prison officials acted t o cover up the suspicious nature of his death by destroying evidence and cleaning hi s cell before an investigation could be completed. They also allege prison offici als were deliberately indifferent to Trentadue’s medical needs as guards waited several minutes to open the cell door and cut Trentadue’s noose. The gover nment disputes this version of the events, claiming Trentadue’s wounds were self-i nflicted and asserting he was dead by the time guards discovered him. B. Trentadue’s Death On the morning of August 20, 1995, two days after arriving at the FTC, Trentadue filled out an administrative form request ing admission to the SHU. He stated on the form that he believed other inmates w ere “out to get him” and that he was requesting admission for his own protection. After a strip search and physical inspection, officers noted only that Trent adue had a blister on his heel, and placed him in a cell alone at approximately 8:0 0 a.m. FTC records from August 20 indicate that other inmates were housed n earby Trentadue in the SHU, but the records contain no reports of abnormal acti vity. Officers conducting a routine cell check saw Trenta due asleep in his bed at 2:38 a.m. the following morning. There were no ind ications that anything was-7-

amiss at that time as officers saw no signs of bloo d or torn bed sheets. FTC records indicate the next cell check occurred twenty-four minutes later, at 3:02 a.m., at which time Officers Ellis and Creasey disc overed Trentadue hanging in his cell by a ligature made of torn bed sheets. Of ficer Ellis radioed the prison control center: “I have one hanging,” and an emerg ency message was broadcast throughout the FTC. The emergency message prompted a flurry of activity within the prison. Lieutenant Stuart A. Lee, the highest ranking offic er in the FTC during the relevant period, was in the control center when gua rds discovered Trentadue. Lieutenant Lee immediately departed for the SHU and on the way radioed the prison physician assistant to report to Trentadue’s cell. Lee also radioed Officer Ellis and instructed him not to go into the cell an d not to unlock the door. Lieutenant Lee and other officers arrived at the ce ll two to three minutes after receiving the initial radio call. Lee looked through the cell door window and saw Trentadue hanging from a vent in the ceiling, b lood on his body and blood on the floor. Lee testified that Trentadue’s eyes wer e closed “as if he was in a deep sleep” and that he was pale and “silently still.” Based on these observations, Lee concluded that Trentadue was already dead and did n ot immediately open the cell door. Some of the delay was also apparently due to Lee’s decision to videotape-8-

the cell entry and the need to obtain scissors from the control center to cut the

noose.Once inside the cell, officers did not immediately cut Trentadue down nor did they attempt to lift him in order to relieve pr essure on his neck. When Trentadue was finally lowered to the ground the phy sician assistant conducted a cursory physical examination and determined that Tr entadue was dead. No one attempted CPR. FTC records show that Trentadue’s b ody was removed from his cell to the prison infirmary at 3:10 a.m., eight mi nutes after officers discovered him hanging. C. The Initial Investigation and Autopsy The FTC official responsible for investigating inmate deaths, Special Investigative Supervisor Lieutenant Kenneth Freeman , was notified of Trentadue’s death shortly after his body was remove d from the SHU. Lieutenant Freeman’s official duties included securing potenti al crime scenes and collecting and preserving evidence. At trial he testified that he did not consider Trentadue’s cell a crime scene because prison officials told hi m Trentadue committed suicide. As a result, Freeman’s investigation of the cell wa s perfunctory. He arrived at the FTC at approximately 5:30 a.m. and attempted to pho tograph everything in the cell with blood on it. He collected some physical evidence from the cell, including several of Trentadue’s bloodstained perso nal items, and later-9-

photographed Trentadue’s body in the infirmary. Af ter Freeman completed his investigation, FTC officials ordered Trentadue’s ce ll cleaned by prison staff. Both the cell and the infirmary were clean by early afternoon. Shortly thereafter Trentadue’s body was transferredto the Oklahoma Medical Examiner’s Office. The Chief Medical Exami ner of the State of Oklahoma, Dr. Fred Jordan, completed an autopsy rep ort that afternoon. He documented numerous injuries to Trentadue’s body, i ncluding multiple contusions on the head, arms, back, and legs; a bruised anal v erge; lacerations on the head and neck; a small fracture to a neck bone; and seve ral skin abrasions. Because of these extensive injuries, Dr. Jordan initially list ed the manner of death as “pending,” and later classified it as “unknown.” D. The Treatment of the Family The FTC’s acting warden, Marie Carter, called Trent adue’s mother the morning of his death, as Trentadue had listed her a s his next of kin upon being committed to the FTC. Warden Carter testified thatshe told Wilma Trentadue her son had died of an apparent suicide and that BOP wo uld be performing an autopsy with the family’s concurrence. Wilma Trentadue tol d Carter that only Trentadue’s wife, Carmen, could give permission forsuch a procedure. Carmen Trentadue testified that she spoke with Warden Cart er that morning but never consented to an autopsy.-10-

Later that day, Warden Carter spoke with Trentadue’ s brother, Jesse Trentadue, a lawyer, who insisted on handling all m atters relating to his brother’s death. During this conversation Jesse Trentadue as ked BOP to conduct an autopsy, but Carter told him no autopsy could be pe rformed without Wilma Trentadue’s written authorization as next of kin. Despite this statement, the record is clear that prison officials had already a uthorized the medical examiner’s autopsy and that it was completed by the afternoon of August 21. The next day, August 22, Jesse Trentadue faxed a le tter to Warden Carter. He reiterated that he wanted to handle his brother’ s affairs, told BOP an autopsy authorization was forthcoming, and requested inform ation regarding the details of his brother’s death, including any evidence suggest ing the cause was other than suicide. Jesse received no response to these inquiries. The district court found that BOP never notified Trentadue’s family an autop sy had in fact been performed and never told the family about the obvious and ext ensive trauma to Trentadue’s body. Jesse testified: “I was never told that he had any injuries at all.”

E. The Body Is Shipped To California On August 26, the medical examiner shipped Trentadu e’s remains to a California funeral home. Trentadue’s wife, mother and sister were present when the body arrived. Upon opening the casket, the fam ily members saw the autopsy incisions and numerous bruises and lacerations on T rentadue’s body. These-11-

injuries were unexpected, so they had the body remo ved from the casket and photographed by funeral home employees. Trentadue’ s wife told Jesse Trentadue and other family members about the body’s conditionlater that same day. On September 1, the FTC issued a press release regarding Trentadue’s death. It stated that the Oklahoma Medical Examine r had tentatively ruled the death a suicide and that Trentadue’s injuries were the result of his persistent attempts to harm himself. This press release confl icted with the facts then known to BOP. As previously noted, the medical examiner had listed the cause of death as “unknown,” not suicide. The press release was the first time the Trentadues heard of an official investigation into their relat ive’s death. F. The Subsequent Investigations Trentadue’s death spawned a number of federal and l ocal investigations. The BOP conducted an initial internal investigation in the months following Trentadue’s death, but its investigation ended soonafter the FBI’s Oklahoma Field Office opened a criminal investigation into t he death in late 1995. The FBI investigation continued at a slow pace for the nextseveral months. Trentadue’s family and the Oklahoma Medical Examiner, suspiciou s of the way the federal government was handling the case, raised numerous q uestions about the manner and circumstances of Trentadue’s death. In respons e to these questions, the Criminal Section of the United States Department of Justice, Civil Rights-12-

Division, began to supervise the investigation, andin early 1996, determined that the matter warranted presentation to a federal gran d jury. The FBI conducted numerous witness interviews, which the Department o f Justice (DOJ) presented along with other evidence to the grand jury. Afterseveral months of grand jury proceedings, DOJ issued a press release stating that the investigation revealed no credible evidence that FTC personnel had violated T rentadue’s civil rights, and no evidence that Trentadue had been murdered. After the grand jury proceedings, the DOJ Office of the Inspector General commenced its own inquiry into Trentadue’s death. Like the Civil Rights Division, it concluded the evidence showed Trentadu e had committed suicide, but found serious deficiencies in BOP’s response to his death. Among other things, it noted that FTC’s investigation of the incident was inadequate and that FTC personnel had misplaced or altered crucial evidence

. The Oklahoma City Police Department also conducted an investigation at the urging of the Oklahoma City District Attorney. The District Attorney concluded, based on its independent review of the m atter, that Trentadue’s death was a suicide and that he had not been beaten and m urdered by correctional officers or inmates. Following this investigation, the medical examiner, Dr. Jordan, changed the manner of death in his autopsy report from “unknown” to “suicide,” and identified the cause of death as “tr aumatic asphyxia.”-13- G. Course of Proceedings In August 1996, Trentadue’s estate filed an adminis trative claim with the DOJ. The claim generally was based on the belief t hat prison guards had murdered Trentadue, and included a claim for damage s for intentional infliction of emotional distress based on prison officials’ attempt to conceal the manner of his death. DOJ denied the administrative claim. Thereafter, Trentadue’s estate and members of his f amily filed this action against the United States, the DOJ, the BOP, and th e FBI, and against twelve prison officials and employees in their individual capacities. Among other claims, the Trentadues brought a claim against the government under the FTCA for intentional infliction of emotional distress. Plaintiffs’ amended complaint asserted that the government:

engaged in extreme acts of misconduct such as, but not limited to concealing the manner and circumstances of Kenneth Michael Trentadue’s death, the mutilation o f Kenneth Michael Trentadue’s body, falsely asserting that Kenneth Michael Trentadue had committed suicide, saying that the injuries and trauma upon Kenneth Michael Trentadue’s body [were] self-inflicted or implying that those injuries had been done by his f amily following death, stating that Kenneth Michael Trent adue had killed himself because he had AIDS, and other illegal and wrongful acts. Plaintiffs alleged “[t]hese and other acts” by the government “were so outrageous and extreme as to exceed all bounds of what is tole rated in a civilized1 In addition, the amended complaint alleged that the government committed

assault and battery resulting in Trentadue’s injuri es and death, was negligent in failing to provide for Trentadue’s safety and not i mmediately administering to his medical needs, intentionally destroyed or altered e vidence in order to conceal the manner and circumstances of his death, engaged in aconspiracy to violate his constitutional rights, and committed various statut ory torts under Oklahoma law.

2 The district court awarded Trentadue’s wife $250,0 00, his mother and three siblings $200,000 each, and his deceased father’s e state $50,000. -14- community.” Their complaint also asserted civil ri ghts violations by Lieutenants Lee and Freeman under Bivens

. 1 Before trial, the district court granted summary ju dgment to Freeman on the basis of qualified immunity. The district court tr ied the FTCA action and remaining Bivens claims against Lee together; the FTCA action was t ried to the bench and the Bivens claims presented to a jury. After a four-week tri al, the jury in the Bivens case returned a verdict finding Lee liable for vio lating Trentadue’s civil rights by being deliberately indifferent to h is serious medical needs, and awarded the plaintiffs $20,000 in compensatory dama ges. The jury rejected all of plaintiffs’ remaining Bivens claims. Five months later, the district court in the FTCA a ction entered judgment against the government for intentional infliction o f emotional distress, and awarded plaintiffs $1.1 million in damages. 2 The court found against plaintiffs on all other FTCA claims. The government’s motion to amend the judgment was denied.3 We note up front that circuit courts have allowed cases involving emotional

distress under the FTCA. See, e.g. , Jimenez-Nieves v. United States , 682 F.2d 1 (1st Cir. 1982); Kohn v. United States , 680 F.2d 922 (2d Cir. 1982); Plummer v. United States , 580 F.2d 72 (3d Cir. 1978); Andrews v. United States , 732 F.2d 366 (4th Cir. 1984); Truman v. United States , 26 F.3d 592 (5th Cir. 1994); McLean v. United States , 613 F.2d 603 (5th Cir. 1980); Ferguson v. United States Army , 938 F.2d 55 (6th Cir. 1991); Gross v. United States , 676 F.2d 295 (8th Cir. 1982); Sabow v. United States , 93 F.3d 1445 (9th Cir. 1996). In any event, the government has not claimed in this appeal that the tort of intentional infliction of emotional distress is per se unavailable under the FTCA. -15- Both the government and Lee filed timely notices of appeal.
II. FTCA The FTCA constitutes a limited waiver of the federa l government’s sovereign immunity from private suit. See 28 U.S.C. § 1346(b). The prerequisite for liability under the FTCA is a “negligent or wro ngful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United St ates, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id. The government and Lee raise a total of four issues on appeal with regard to the district court’ s award of damages under the FTCA. The issues involve (a) the notice of claim; (b) the misrepresentation exception to the FTCA; (c) the application of the t ort of intentional infliction of emotional distress; and (d) the judgment bar to the FTCA. 3
A. Notice of the Claim-16-

The first issue is whether plaintiffs’ administrati ve claim satisfied the FTCA’s notice requirements. “Because the FTCA cons titutes a waiver of the government’s sovereign immunity, the notice require ments established by the FTCA must be strictly construed. The requirements are jurisdictional and cannot be waived.” Bradley v. United States ex rel. Veterans Admin. , 951 F.2d 268, 270 (10th Cir. 1991) (citation omitted). The jurisdictional statute, 28 U.S.C. § 2675(a), “r equires that claims for damages against the government be presented to the appropriate federal agency by filing ‘(1) a written statement sufficiently descri bing the injury to enable the agency to begin its own investigation, and (2) a su m certain damages claim.’” Bradley , 951 F.2d at 270 (quoting Warren v. United States Dep’t of Interior Bureau of Land Mgmt. , 724 F.2d 776, 780 (9th Cir. 1984)). Whether the district court has subject matter jurisdiction over a claim is a question of law we review de novo. Id

. The plaintiffs’ administrative claim in this case i ncluded an intentional infliction of emotional distress claim and specifie d the damages sought. Nonetheless, the government contends the claim was insufficient in that it was based on a theory that prison officials had murdere d Trentadue and did not discuss the specific grounds relied on by the distr ict court in awarding damages, namely, the government’s treatment of the Trentadue family in the aftermath of-17-

his death and its actions in conducting an autopsy after claiming that no autopsy would be performed without prior approval. We disa gree with the government’s position.
In Dynamic Image Technologies, Inc. v. United States , the First Circuit described the test under § 2675(a) as “an eminentlypragmatic one: as long as the language of an administrative claim serves due noti ce that the agency should investigate the possibility of particular (potentia lly tortious) conduct and includes a specification of the damages sought, it fulfills the notice-of-claim requirement.” 221 F.3d 34, 40 (1st Cir. 2000). Several courts inthis jurisdiction have similarly interpreted the provision to require notice of the facts and circumstances underlying a claim rather than the exact grounds up on which plaintiff seeks to hold the government liable. See Barnson v. United States , 531 F. Supp. 614, 623 (D. Utah 1982) (“[A] claim is sufficient which noti fies the agency of the facts of the incident and need not elaborate all possible ca uses of action or theories of liability.”); see also Mellor v. United States , 484 F. Supp. 641, 642 (D. Utah 1978) (“The purpose of the administrative claim pro cedure is to allow the agency to expedite the claims procedure and avoid unnecess ary litigation by providing a relatively informal nonjudicial resolution of the c laim.”). We agree that the FTCA’s notice requirements should not be interprete d inflexibly. See Dynamic Image , 221 F.3d at 40.-18-

Applying these standards here, we conclude that pla intiffs’ administrative claim provided notice that DOJ should investigate t he prison officials’ conduct. Plaintiffs’ complaint sought damages based on the g overnment’s “extreme acts of misconduct,” including the mutilation of Trentadue’ s body, the assertion that Trentadue’s family caused his injuries, and the statement that Trentadue killed himself because he had AIDS. The complaint furtherstated that “[t]hese and other acts . . . were so extreme as to exceed all b ounds of what is tolerated in a civilized community.” This language gave DOJ notic e of the facts and circumstances surrounding plaintiffs’ emotional dis tress claim and, moreover, is consistent with plaintiffs’ subsequent allegations in their amended complaint. The government nevertheless argues that Dynamic Image requires a different outcome. There, plaintiff filed an admin istrative claim for damages with the United States Postal Service following his forc ible removal from a postal service trade show. Dynamic Image , 221 F.3d at 36. In the claim he alleged “negligent misrepresentation, libel, slander, inten tional interference with contractual relations, and discrimination under 42 U.S.C. § 1983.” Id. He then brought claims under the FTCA for false arrest, int entional infliction of emotional distress and negligent supervision. Id. at 37. Because those causes of action were based on an incident not mentioned in plaintiff’s a dministrative claim, the First Circuit held that the agency was not put on notice that it should investigate the4 Section 2680(h) provides that the FTCA does not ap ply to “[a]ny claim arising

out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation , deceit, or interference with contract rights.” -19- potentially tortious conduct, and dismissed the complaint for lack of subject matter jurisdiction. Id. at 40-41. In contrast, here, the plaintiffs’ admi nistrative claim specifically included a claim for intentional infliction of emotional distress and was based on the same underlying conduct that s upported their amended complaint. Because we conclude plaintiffs’ administrative clai m provided the government with sufficient notice of their intentio nal infliction of emotional distress claim, the district court did not lack jur isdiction under § 2675(a) of the
FTCA. B. Misrepresentation Exception The second issue on appeal involves the FTCA’s inte ntional torts exception. See 28 U.S.C. § 2680(h). 4 If a claim against the government falls within an exception to the FTCA, the cause of actio n must be dismissed for want of federal subject matter jurisdiction. See Dalehite v. United States , 346 U.S. 15, 31 (1953) (holding that where discretionary function exceptio n of § 2680(a) applied, district court lacked subject matter juris diction over cause of action), partially overruled on other grounds by Rayonier, I nc. v. United States , 352 U.S.-20-

315 (1957); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997) (also holding no subject matter jurisdiction where § 2680 (a) applied); see also Hydrogen Technology Corp. v. United States , 831 F.2d 1155, 1161 (1st Cir. 1987) (“[B]ecause 28 U.S.C. § 1346(b) provides that feder al courts shall have jurisdiction over FTCA claims ‘ subject to ,’ . . . section 2680, the exceptions found in that section define the limits of federal subject matter jurisdiction in this area.”). Application of the misrepresentation exce ption therefore presents a threshold jurisdictional determination which we rev iew de novo. See Daigle v. Shell Oil Co ., 972 F.2d 1527, 1537 (10th Cir. 1992). Section 2680(h) provides that the FTCA does not app ly to claims “arising out of” misrepresentation or deceit. The governmen t argues plaintiffs’ emotional distress claim falls within the misrepresentation e xception because the district court found that the Trentadues suffered damages wh en the government failed to communicate certain facts to the family, namely, th e battered condition of Trentadue’s body and that an autopsy had been perfo rmed. The government contends that plaintiffs can point to no conduct in dependent of this failure to communicate, thus their emotional distress claim mu st be deemed to arise of out misrepresentation within the meaning of § 2680(h). We disagree. “The misrepresentation exception applies only when the action itself falls within the commonly understood definition of a misr epresentation claim.” Block-21-

v. Neal , 460 U.S. 289, 296 n.5 (1983) (citations and quotations omitted). For purposes of the FTCA, misrepresentation includes th ose claims “arising out of negligent, as well as willful, misrepresentation.” United States v. Neustadt , 366 U.S. 696, 702 (1961). Negligent misrepresentation, in the “traditional and commonly understood legal definition of the tort,” involves a violation of the “duty to use due care in obtaining and communicatin g information upon which [a] party may reasonably be expected to rely in the con duct of his economic affairs.” Id. at 706. Such claims have “been confined ‘very largely to th e invasion of interests of a financial or commercial character, i n the course of business dealings.’” Block, 460 U.S. at 296 n.5 (quoting Neustadt, 366 U.S. at 711 n.26); see also Jimenez-Nieves v. United States , 682 F.2d 1, 5 (1st Cir. 1982) (“misrepresentation” in the Tort Claims Act should be confined to its traditional, or core, meaning as a separate tort). In accordance with these rules, circuit courts have held that a claim must contain the essential elements of misrepresentation to come within the exception.
See Jimenez-Nieves , 682 F.2d at 4-5; Kohn v. United States , 680 F.2d 922, 926 (2d Cir. 1982) (exception generally has been applie d only to actions for damages due to commercial decisions that were predicated on incorrect or incomplete information); Reynolds v. United States , 643 F.2d 707, 711 (10th Cir. 1981) (exception applies where plaintiff relies on false representations to his financial-22-

detriment). Those elements include “reliance by th e plaintiff . . . upon the false information that has been provided,” and “pecuniaryloss.” Jimenez-Nieves , 682 F.2d at 4 (citing applicable sections of the Restat ement (Second) of Torts). Furthermore, courts have held that the misrepresent ation exception does not bar suits on other grounds in cases in which misrep resentations are collaterally involved. See, e.g., Saraw P’ship v. United States , 67 F.3d 567, 570-71 (5th Cir. 1995) (holding misrepresentation exception does notbar plaintiff’s negligence claim where government’s lack of communication was collateral to the essential act that spawned the damages). As the First Circui t said in Jimenez-Nieves , “we can discern no congressional purpose that might hav e been served in defining [misrepresentation] more broadly, to include false statements that are happenstance causal elements of other torts.” 682 F.2d at 5. The government argues the misrepresentations at iss ue here are more than collaterally involved and constitute the very condu ct giving rise to plaintiffs’ emotional distress claim. However, even acknowledg ing that the government failed to inform the Trentadues of certain facts, w e agree with the district court’s conclusion that the misrepresentation exception doe s not apply in this case. Plaintiffs’ emotional distress arises from the gove rnment’s callous treatment of the family in the aftermath of Trentadue’s death, i ncluding its shipping of Trentadue’s battered remains to unsuspecting familymembers. Two essential5 JBP Acquisitions, LP v. United States ex rel. FDIC , 224 F.3d 1260 (11th Cir.

2000), a case relied on by the government, supports this conclusion. The Eleventh Circuit made clear that the FTCA’s misrepr esentation exception applies when the essential elements of reliance and pecunia ry loss are present. It stated: “[w]ithout the false representation by the Governme nt that it was the owner of the Property, the consent agreement in the condemnation proceedings never would have been consummated, the Property would not have been demolished, and [plaintiff] would have suffered no injury.” Id. at 1265. -23- components of negligent misrepresentation — relianc e and pecuniary loss — are not present on the record before us. See Jimenez-Nieves , 682 F.2d at 4. Therefore, in our view, the district court correctl y found that this is not an action for negligent misrepresentation or deceit under § 2 680(h). 5 Accordingly, we conclude plaintiffs’ intentional in fliction of emotional distress claim is not barred by the FTCA’s misrepre sentation exception.

C. Intentional Infliction of Emotional Distress The next hurdle faced by the Trentadues is the gove rnment’s assertion that the district court erred in awarding damages for in tentional infliction of emotional distress. Specifically, the government argues plai ntiffs’ evidence failed to satisfy any of the elements of intentional infliction of em otional distress under Oklahoma law. Whether plaintiffs have proved intentional in fliction of emotional distress is a matter of law we review de novo. See Clark v. Brien , 59 F.3d 1082, 1086 (10th Cir. 1995). 1. The Elements of the Tort6 Section 46 of the Restatement (Second) of Torts pr ovides, in pertinent part:

“One who by extreme and outrageous conduct intentio nally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results f rom it, for such bodily harm.” -24- Oklahoma first recognized intentional infliction of emotional distress as an independent tort in Breeden v. League Services Corp. , 575 P.2d 1374 (Okla. 1978). Breeden teaches that the cause of action is governed by th e narrow standards of the Restatement (Second) of Torts § 46. 6 Id. at 1376. To recover damages for intentional infliction of emotional dis tress a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2 ) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conductcaused the plaintiff emotional distress; and (4) the emotional distress was severe. See Daemi v. Church's Fried Chicken, Inc. , 931 F.2d 1379, 1387 (10th Cir. 1991) (applying Oklahoma law); Computer Publ’n, Inc. v. Welton , 49 P.3d 732, 735 (Okla. 2002). The commentary to Restatement § 46 explains that “r ecklessness” in the first element includes actions that are in “deliber ate disregard of a high degree of probability that the emotional distress will follow .” Restatement (Second) of Torts § 46 cmt. i. The second element of the tort requires proof that the tortfeasor’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly-25-

intolerable in a civilized community.” Kraszewski v. Baptist Med. Ctr. of Okla.,
Inc. , 916 P.2d 241, 248 n.25 (Okla. 1996) (quoting Restatement (Second) of Torts § 46 cmt. d). Generally, the case is one where “th e recitation of the facts to an average member of the community would arouse his re sentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. at 249 n.25. In addition, whether the tortfeasor’s conduct was extreme and outrageous mus t be considered in the setting in which the conduct occurred. Eddy v. Brown , 715 P.2d 74, 77 (Okla. 1986) (holding that nature of the conduct should not be c onsidered in a sterile setting, detached from the milieu in which it took place); see also Starr v. Pearle Vision,
Inc ., 54 F.3d 1548, 1559 (10th Cir. 1995) (applying Ok lahoma law and noting that court must focus on the totality of the circumstanc es). The third element of an emotional distress claim re quires proof that the tortfeasor’s conduct caused the plaintiff’s emotion al distress. Computer Publ’n, 49 P.3d at 735. Finally, the fourth element requires proof that the plaintiff’s emotional distress was “so severe that no reasonable [person] could be expected to endure it.” Computer Publ’n, 49 P.3d at 736 (quoting Breeden , 575 P.2d at 1377 n.6). While emotional distress includes “all highly unple asant mental reactions,” it is only where the emotional distress is extreme that l iability arises. Miller v. Miller , 956 P.2d 887, 901 n.44 (Okla. 1998). “The intensity and the duration of the7Under Oklahoma law the trial court must assume a g atekeeper role with respect

to intentional infliction of emotional distress cla ims by making a threshold legal determination that the defendant’s conduct may reas onably be regarded as sufficiently extreme and outrageous to meet the Res tatement § 46 standards. Breeden , 575 P.2d at 1377-78. If the court concludes thatreasonable persons could differ in the assessment of the disputed fact s, the court submits the claim to the jury to determine whether the defendant’s condu ct should result in liability. Id. Similarly, the court makes an initial determinati on whether severe emotional distress can be found and the jury determines wheth er such distress in fact existed. Id. Since the FTCA portion of this case was tried to th e court, the court made both the initial legal determinations of outrageous ness and severe distress, as well as the ultimate findings of injury and liability. -26- distress are factors to be considered in determinin g its severity.” Breeden , 575 P.2d at 1378 n.6 (quoting Restatement (Second) of T orts § 46 cmt. j). Moreover, although severe distress must be proved, “in many c ases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed.” Id

. 2. The District Court’s Order After a bench trial, the district court found the government liable for intentional infliction of emotional distress. 7The court found in part:

Trial testimony established that news of Trentadue’ s death came as a shock to his family members. . . . The family [had not been] advised by anyone at the FTC or the BOP that an autopsy had been performed; thus th e family was first made aware of the autopsy by viewi ng the obvious signs of the intrusive procedure on his body after it was received on August 26, 1995. Despite the numerous, unusual, and obvious extensive injuries t o-27- Trentadue’s body, the family had not been told in advance of these injuries and were thus also forced to discover these on their own, much to their horror. Order, No. CIV-97-849-L, at 16-17 (W.D. Okla. May 1 , 2001). The court went on to conclude: [F]rom the testimony of family members, the court determines that they suffered a quantifiable level of distress over and above the expected level of emoti onal distress they would have suffered due to Trentadue’ s death and that the United States should be held lia ble for this distress. Evidence at trial established that the plaintiffs s uffered severe emotional distress as a result of the reckle ss way in which they were treated by the United States in the aftermath of Trentadue’s death. The court finds th at plaintiffs’ understandable emotional reaction to Trentadue’s death was needlessly and recklessly intensified by the United States’ failure to inform the family in advance as to the existence of the extens ive injuries on Trentadue’s body and that an autopsy ha d been performed. Throughout the trial, the court he ard no explanation for defendant’s silence in this rega rd. In the face of the evidence regarding the emotional di stress of the plaintiffs, the court finds that plaintiffs have met their burden on their claim for intentional inflict ion of emotional distress and are entitled to judgment on this claim. Id. at 17-18, 23. We agree with the district court that the governmen t acted in deliberate disregard of a high probability that its actions wo uld cause the Trentadues emotional distress. The Trentadues were a grieving family searching for answers8 The government argues at length that the Trentadue s were on notice that an

autopsy would be performed and that Jesse Trentadue in fact consented to one. However, the record shows Warden Carter told Jesse that he could not authorize Trentadue’s autopsy without his mother’s power of attorney. The record is unclear on whether the FTC ever received Wilma Tren tadue’s power of attorney. However, whether such authorization was later recei ved does not excuse BOP’s treatment of the family, especially in light of War den Carter’s repeated insistence that proper consent was necessary and her failure t o inform the family that an autopsy had in fact been performed. -28- in the wake of Kenneth Trentadue’s untimely death. BOP’s overall treatment of the Trentadue family, including its initial nondisc losure of the unusual circumstances of death, its obstinance concerning a uthorization for an autopsy, and its failure to inform the Trentadues of the body’s battered condition amounted to outrageous conduct that “needlessly and reckless ly” intensified the family’s emotional distress. 8 Thus the district court properly determined that plaintiffs proved the first, second, and third elements of the tort of emotional distress, intentional or reckless conduct, outrageousness, an d causation. However, because the district court did not make explicit findings as to the severity of each individual plaintiff’s emotional d istress, we are unable to determine from the district court’s order whether t he fourth element of the tort has been met. Accordingly, we vacate the FTCA judg ment in favor of the plaintiffs and remand for additional findings on wh ether the emotional distress suffered by each plaintiff was severe under Oklahom a law. D. Judgment Bar9 The judgment bar provides that a “judgment in an action under [the FTCA] shall

constitute a complete bar to any action by the clai mant, by reason of the same subject matter, against the employee of the governm ent whose act or omission gave rise to the claim.” 28 U.S.C. § 2676. -29- Relying on the judgment bar provision of the FTCA, 28 U.S.C. § 2676, 9 Lieutenant Stuart Lee argues that the district court’s entry of judgment on plaintiffs’ FTCA claims required the court to vacat e the judgment entered against him in the Bivens action. We agree. We note first that the district court tried plainti ffs’ FTCA and Bivens claims contemporaneously in a bifurcated proceeding

. See United States v. Yellow Cab Co. , 340 U.S. 543, 555-56 (1951) (suggesting bifurcati on when FTCA claims are joined with claims carrying the right to a jury). On December 15, 2000, the jury found Lee liable for constitutional violations under Bivens and the district court entered judgment on the verdict on J anuary 12, 2001. The court entered judgment on the FTCA claims several months later. Lee argues that the district court was required at this point to vacate the Bivens judgment under § 2676. We review de novo a district court’s legal conclusions under the FTCA. Farmer v. Perrill , 275 F.3d 958, 962 (10th Cir. 2001). We have previously explained the effect that a fina l judgment in a FTCA case has on a Bivens action based on the same underlying conduct. We sa id in Engle v. Mecke :-30- When a federal law enforcement officer commits an intentional tort, the victim has two avenues of red ress: 1) he may bring a Bivens claim against the individual officer based on the constitutional violation, or 2 ) he may bring a common law tort action against the Unit ed States pursuant to the FTCA. These are separate an d distinct causes of action arising out of the same transaction. A decision to sue the government, how ever, affects the availability of a Bivens action against the federal officer. Although the plaintiff may elect initially to bring his action against either defendant, a jud gment against the United States under the FTCA constitute s “a complete bar to any action by the claimant, by reas on of the same subject matter, against the employee . . . whose act or omission gave rise to the claim.” 28 U.S.C. § 2676. 24 F.3d 133, 135 (10th Cir. 1994) (citations omitte d) (ellipses in original). As we made clear in Farmer , the judgment bar in § 2676 precludes plaintiffs from bringing a Bivens claim regarding the same subject matter regardless of whether the final FTCA judgment is re ndered in favor of a plaintiff or the government. See 275 F.3d at 963. The phrase “by reason of the same subject matter” in § 2676 has been interpreted to m ean “arising out of the same actions, transactions, or occurrences.” Serra v. Pichardo , 786 F.2d 237, 239-40 (6th Cir. 1986); see also Armstrong v. Vogel , 424 F. Supp. 445, 447 (D.S.C. 1977) (substance of claim must be considered in deciding whether the claim arises by reason of same subject matter as previous action br ought under FTCA). Here, plaintiffs’ FTCA action involved the same subject matter as their
Bivens claim: the alleged misconduct of prison officials , including Lee, in-31-

responding to Trentadue’s death. Although plaintif fs ultimately recovered on narrower grounds than those alleged in their compla int, this does not affect our determination that the two claims arose out of the same “actions, transactions, or occurrences” for the purposes of § 2676. Further, the fact that the district court entered j udgment on the Bivens claims before issuing its order and judgment in the FTCA case is inconsequential under § 2676. The FTCA’s judgment bar constitutes “a complete bar to any action” based on the same subject matter as the cla imant’s FTCA case. 28 U.S.C. § 2676 (emphasis added). Although the language of the statute does not speak to situations where FTCA and non-FTCA claims are triedtogether in the same action, see Kreines v. United States , 959 F.2d 834, 838 (9th Cir. 1992), we interpret § 2676 to apply to the Bivens judgment here. A contrary rule would permit plaintiffs to escape the judgment bar’s prec lusive effect in cases like this, where the district court waited to enter judgment o n FTCA claims tried contemporaneously with Bivens claims. Such is not the intent of the rule. See
Farmer , 275 F.3d at 963 n.7 (Congress intended to preventmultiple lawsuits as well as multiple recoveries) (citing Hoosier Bancorp of Ind. v. Rasmussen , 90 F.3d 180, 184 (7th Cir. 1996), and Gasho v. United States , 39 F.3d 1420, 1437 (9th Cir. 1994)).10 Given our conclusion, we need not address plaintiff s’ contention on cross-appeal that the district court erred in granting summary j udgment in favor of Lieutenant Kenneth Freeman. The FTCA’s judgment bar applies t o the suit against him for the same reasons we determined it barred the Bivens judgment against Lee. Therefore, we affirm the district court’s dismissal of the Bivens action against Freeman.

11 The rule provides in part: “Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. ” -32- We thus conclude that a final judgment in the FTCA action will bar the
Bivens action against Lee. Accordingly, upon entry of a final judgment in the FTCA action, the district court shall dismiss the Bivens action against Lee. 10 III. Cross-Appeals In a voluminous cross-appeal, plaintiffs assert twe nty-one legal and factual errors by the district court that they contend indi vidually or cumulatively require reversal of the issues below on which they failed t o prevail. We conclude that none of the asserted errors requires reversal. A. Standards of Review A district court’s factual findings are reviewed under the clearly erroneous standard of Fed. R. Civ. P. 52(a). 11 “A finding is ‘clearly erroneous’ when although there is evidence to support it, the revie wing court on the entire evidence is left with the definite and firm convict ion that a mistake has been committed.” Anderson v. Bessemer City , 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948)); United-33-

States v. De La Cruz-Tapia , 162 F.3d 1275, 1277 (10th Cir. 1998) (same). “Th is standard plainly does not entitle a reviewing courtto reverse the finding of the trier of fact simply because it is convinced that i t would have decided the case differently.” Anderson , 470 U.S. at 573. “In applying the clearly errone ous standard . . . appellate courts must constantly hav e in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research,
Inc. , 395 U.S. 100, 123 (1969). A district court’s decision to review certain docum ents in camera or ex parte is reviewed for abuse of discretion, United States v. Perez-Gomez , 638 F.2d 215, 218 (10th Cir. 1981), as are decisions to requ ire permission to file certain pleadings and to deny motions for sanctions. See Gust v. Jones , 162 F.3d 587, 598 (10th Cir. 1998). We similarly review evidenti ary rulings for abuse of discretion. United States v. Fuentez , 231 F.3d 700, 708 (10th Cir. 2000). Finally, we review the district court’s legal conclusions de novo. Battenfield v. Gibson , 236 F.3d 1215, 1220 (10th Cir. 2001). The harmless-error rule is used to determine “wheth er an individual error requires reversal.” United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990). Cumulative-error analysis, on the other hand, “aggr egates all the errors that individually have been found to be harmless, and th erefore not reversible, and it analyzes whether their cumulative effect on the out come of the trial is such that-34-

collectively they can no longer be determined to be harmless.” Id . at 1470. “The harmlessness of cumulative error is determined by c onducting the same inquiry as for individual error--courts look to see whether th e defendant’s substantial rights were affected.” Id . “However, just as harmless-error analysis is uti lized only to determine whether actual errorshould be disregarded, a cumulative-error analysis aggregates only actual errors to determine their cu mulative effect.” Id . (emphasis in original). B. Evidentiary Findings Plaintiffs first contend on cross-appeal that the d istrict court’s finding that Trentadue’s injuries were self-inflicted was clearl y erroneous. According to plaintiffs, the finding is in direct conflict with uncontroverted testimony about the injuries to Trentadue’s head and the bruises on Tre ntadue’s arms, lower body, and soles of his feet. The plaintiffs also argue the f inding is in conflict with uncontroverted evidence that someone else’s blood w as found in the cell. To the plaintiffs, this evidence contradicts BOP’s asserti on that Trentadue was the sole occupant of the cell. While the facts of this case are indeed troubling, we disagree that the district court committed clear er ror on this record. At trial, Commander Tom Bevel of the Oklahoma City Police Department testified that the forensic evidence led to the con clusions (1) that Trentadue tried to hang himself twice, and (2) that Trentadue susta ined the injuries to his head12 Commander Bevel testified, “Upon [the ligature] br eaking, [Trentadue] falls

forward striking his head. His own inertia upon striking his head basically [sic] he ricochets off the edge of the desk. His head th en impacts the wall . . . . Then we have his head coming upward hitting . . . the un derside of the stool.” -35- and body when the sheet he used as a ligature gave way during the first attempt. 12 Bevel also testified that the physical evidence sho wed Trentadue used a toothpaste tube to cut multiple lacerations into hi s throat before trying to hang himself the second time. A handwriting expert test ified that the note written on Trentadue’s cell wall—“My Mind No Longer It’s Frien d Love ya. Familia!”—matched previous samples of Trentadue’s h andwriting. The district court concluded that this writing could reasonably be regarded as a suicide note. In addition, the court found that the government in troduced credible evidence discounting the importance of finding someone else’ s blood in the cell: the blood was a small spot on the mattress from the top bunk and the cell had previously been used to house other inmates. In addition to this testimonial evidence, the recor d shows multiple investigations by federal and local law enforcementagencies that arrived at the same conclusion about Trentadue’s death. After the DOJ’s Civil Rights Division began supervising the FBI’s investigation of Trenta due’s death, a federal grand jury was convened, and the Civil Rights Division pr esented evidence to the grand jury over the course of a year. The grand jury dec lined to pursue murder charges13 The district court placed the contents of the Offi ce of the Inspector General’s

report under seal. -36- against any of the prison officials or inmates. Th ereafter, the DOJ’s Office of the Inspector General conducted an extensive investigat ion into the matter and issued a report in November 1999 that substantiated the gr and jury findings. 13 In 1998, the Oklahoma City Police Department, at the directi on of the Oklahoma City District Attorney, conducted its own criminal inves tigation into Trentadue’s death. The investigation team “found no evidence t hat [Trentadue] was beaten” and concluded that “Mr. Trentadue’s death was a sui cide.” Based on this report, the Oklahoma Medical Examiner, Dr. Fred Jordon, a p erson who had previously expressed doubt about whether Trentadue committed s uicide, amended his findings on the cause of death from “unknown” to “s uicide.” We acknowledge that many of the circumstances surro unding Trentadue’s death have given us pause, not the least of which w as the response by FTC officials on the morning Trentadue was found hangin g. Few institutional deaths raise so many questions. The district court, howev er, after listening to witness testimony over the course of a four-week trial, tho roughly documented the evidentiary problems that have prevented investigat ors from determining exactly what happened the morning of August 21, 1995. In l ight of the record on appeal we cannot say that our review of the evidence leave s us with the definite and firm14 Notably, the jury that heard the assault, battery, and conspiracy claims against

Lee also declined to find that Lee or someone else had inflicted Trentadue’s injuries. -37- conviction that the district court committed a mist ake. 14 Therefore, we conclude the district court’s findings that Trentadue’s inju ries were self-inflicted and that his death was a suicide were not clearly erroneous. C. Destruction of Evidence Plaintiffs next argue that the district court commi tted clear error in finding that federal officials had not engaged in the inten tional destruction of evidence. In related contentions, plaintiffs argue that the d istrict court erred in rejecting their spoliation claim and abused its discretion in refusing to sanction the government for the destruction or loss of evidence. We reject each contention in

turn. 1. Destruction of Evidence With regard to the destruction of evidence claim, t he district court found that “the loss of potential evidence was the resultof ignorance or incompetence [by federal officials] as opposed to intentional be havior.” Although we agree with the district court that the government’s handl ing of evidence in this case deviated from standard investigative practices, on the evidence before us we15 Plaintiffs contend BOP officials intentionally des troyed Trentadue’s clothing,

the SHU’s cell rotation log, and other records of a n inmate’s location in the SHU. Plaintiffs also argue cleaning Trentadue’s cell the day after his death and painting over the hand written note in his cell constitute i ntentional destruction of evidence.

16 In addition to the photographs and items of physic al evidence collected from the cell, subsequent luminol testing revealed that blood was located in the cell where the photographs showed it to be. -38- cannot conclude that the court erred in finding that prison officials did not intentionally destroy relevant evidence. 15 As part of his investigation, Lieutenant Freeman to ok photographs of the scene in an attempt “to photograph everything in th e cell that had blood on it.” 16 He photographed the handwritten note on Trentadue’s cell wall, as well as Trentadue’s body in the infirmary. Trial witnesses testified that Freeman’s photographs accurately portrayed the cell and the b ody as they appeared on the morning of Trentadue’s death. In addition to the p hotographs, Freeman collected several items of physical evidence that he turned o ver to the medical examiner’s office. Given that prison guards told Freeman thatTrentadue’s death was a suicide, he had less reason to consider the cell a crime scene, and his actions therefore support the district court’s conclusion that he did not intentionally destroy evidence. Further, plaintiffs’ counsel tho roughly tested Freeman’s credibility on this issue during cross-examination at trial.-39-

The government provides less satisfactory explanati ons for the missing cell rotation log and Trentadue’s missing clothing. Non etheless, giving due regard to the opportunity of the trial court to judge the cre dibility of witnesses, Fed. R. Civ. P. 52(a), we conclude the district court did not co mmit clear error in finding no intentional destruction of evidence.2. Spoliation Citing Patel v. OMH Medical Center, Inc. , 987 P.2d 1185 (Okla. 1999), the district court rejected plaintiffs’ spoliation clai m. In Patel , the Oklahoma Supreme Court stated “[n]either spoliation of evide nce nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable.” Id. at 1202. We have found no authority that suggests otherwise.
See id. (“Although a few jurisdictions have adopted the to rt of spoliation, most of the courts which have considered the issue have ref used to recognize spoliation as an independent cause of action in tort.”) (footnote s omitted). Because the “test established by the Tort Claims Ac t for determining the United States’ liability is whether a private perso n would be responsible for similar negligence under the laws of the State wher e the acts occurred,” Rayonier, Inc. v. United States , 352 U.S. 315, 319 (1957), and spoliation is not arecognized17 We also reject for the same reason plaintiffs’ arg ument that the Restatement

(Second) Torts § 870 establishes the tort of spoliation in Oklahoma. -40- tort in Oklahoma, we conclude that the district cou rt did not err in denying plaintiffs’ claim. 17
3. Sanctions Nor do we agree that the district court abused its discretion in refusing to sanction the government for the destruction or loss of evidence. The district court has discretion to fashion an appropriate remedy dep ending on the culpability of the responsible party and whether the evidence was relevant to proof of an issue at trial. See Aramburu v. Boeing Co. , 112 F.3d 1398, 1407 (10th Cir. 1997) (requiring bad faith before imposing adverse infere nce). “Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.” Id. Above we upheld the district court’s finding that t he loss of potential evidence was the result of ignorance or incompetenc e as opposed to intentional acts. Contrary to the Trentadues’ arguments on app eal, the district court did consider the loss or destruction of evidence by drawing “reasonable inferences from the circumstances surrounding lost or inaccurate evidence in deciding what weight should be given to that evidence.” Order, N o. CIV-97-849-L, at 24 (W.D. Okla. May 1, 2001). Moreover, “[d]uring trial, pla intiffs were allowed to explore-41-

the possible reasons for the mishandling of evidenc e and were allowed to make arguments regarding the significance of the evidenc e” to the judge. Id. Under these circumstances, we conclude the district courtdid not abuse its discretion in refusing to sanction the government. D. Injunctive or Declaratory Relief Plaintiffs also contend that the district court abu sed its discretion in refusing to grant declaratory or injunctive relief against the government. According to plaintiffs, the loss or destruction of documents by the government and the perjury by government employees violated pl aintiffs’ civil rights under the Fifth Amendment. Even if this were true, howev er, the district court lacks subject matter jurisdiction under the FTCA to provi de injunctive and declaratory relief. See 28 U.S.C. § 1346(b) (providing the district courts have jurisdiction over all civil actions on claims against the United States, “for money damages, . . . for injury or loss of property, or personal i njury or death”). At trial, no individual defendants remained except for Lee, and no basis existed for any injunctive relief directed to him. Except for the order dismissing Freeman, the Trentadues did not appeal the orders dismissing the individual defendants, and they voluntarily dismissed several of the FTC defen dants before trial. Therefore, we perceive no abuse of discretion in the trial cou rt’s decision not to grant any form of injunctive relief.-42- E. Burden-Shifting Presumptions Plaintiffs argue that the district court erred in r equiring the plaintiffs to prove that Trentadue was alive when discovered by p rison guards, and in failing to apply appropriate burden-shifting presumptions r egarding suicide, time of death, and spoliation. We disagree. Without citing any Oklahoma authority, plaintiffs m aintain that the district court improperly placed the burden on them to prove Trentadue was revivable when discovered, rather than requiring the governme nt to prove that Trentadue was dead. Under Oklahoma law, however, “[i]n an ac tion for the recovery of damages for wrongful death of decedent, the burden of proof is upon the plaintiff to establish by competent evidence that a negligentor wrongful act of defendant was the proximate cause of death.” Jines v. City of Norman , 351 P.2d 1048, 1052 (Okla. 1960). We therefore conclude that the distr ict court properly left the burden of proving Trentadue was still alive with th e plaintiffs. Plaintiffs next argue that the law’s presumption ag ainst suicide places the burden of proving suicide on the party claiming that fact and, further, that a presumption of continuance of life arises whenever the time of a person’s death is uncertain. In Oklahoma, “a presumption is merely aprocedural tool for ordering proof, and does not constitute affirmative evidence .” Weber v. Continental Cas.
Co. , 379 F.2d 729, 732 (10th Cir. 1967) (quotations om itted). “When evidence is-43-

introduced rebutting the presumption, the presumpti on disappears, leaving in evidence the basic facts which are to be weighed.” Id. (quoting Stumpf v. Montgomery , 226 P. 65, 68 (Okla. 1924)). Thus, “the presumpt ion against suicide is overcome by evidence showing the death was self- inflicted, . . . or circumstances and conditions leaving no room for any reasonable hypothesis but suicide.” Runyon v. Reid, 510 P.2d 943, 952 (Okla. 1973) (quoting Frankel v. New York Life Ins. Co. , 51 F.2d 933, 935 (10th Cir. 1931)). Here, the presumption against suicide disappears inthe face of evidence that Trentadue’s injuries were self-inflicted. See Weber , 379 F.2d at 732. Further, with regard to the uncertainty about the p recise time of Trentadue’s death, the district court found “there was no evide nce from lay witnesses or experts that Trentadue could have been revived,” an d therefore, “plaintiffs [could not] demonstrate that the actions of the FTC person nel were the cause of Trentadue’s death.” Order, No. CIV-97-849-L, at 21 (W.D. Okla. May 1, 2001). Lastly, an adverse presumption that follows the des truction or spoliation of evidence “arises only in cases of ‘willful destruct ion [or] suppression.’” Beverly v. Wal-Mart Stores, Inc. , 3 P.3d 163, 165 (Okla. Civ. App. 1999) (citing Harril v.
Penn , 273 P. 235, 237 (Okla. 1927)). Thus, “[m]ere ne gligence in losing or destroying records is not enough because it does no t support an inference of consciousness of a weak case.” Aramburu v. Boeing Co. , 112 F.3d 1398, 1407-44-

(10th Cir. 1997). Above we concluded that the dist rict court’s finding that the government did not intentionally destroy evidence w as not clearly erroneous. Consequently, the district court did not err. F. Physical Fact Rule Plaintiffs contend that the district court erred in not applying the “physical fact” rule. The physical fact rule is an evidentia ry device that disregards oral testimony at odds with physical evidence introducedat trial. See, e.g., Whittington v. Mayberry , 190 F.2d 703, 705 (10th Cir. 1951). Specifically , plaintiffs assert that evidence at trial establishe d (1) that “the noose portion of the ligature was not cut”; (2) that “the remaining ligature in Trentadue’s cell hung to within four feet of the cell floor”; (3) that “the presence of liver [sic] mortis in the tip of Trentadue’s nose resulted from him lying face down on the floor of his cell after death rather than hanging”; and (4) that“someone else’s blood [was present] in Trentadue’s cell.” This evidence, they argue, “required the District Court to reject all testimony, including Lee’s, abo ut Trentadue having been found hanging and cut down[,]” and “all testimony, includ ing Lee’s, about Trentadue having been alone in his cell.” Although no trier of fact “can be allowed to return a verdict based upon oral testimony which is flatly opposed to physical facts, the existence of which is incontrovertibly established, . . . courts should n ot indulge in arbitrary deductions-45-

from physical law and fact except where they appearto be so clear and irrefutable that no room is left for the entertainment, by reas onable minds, of any other deductions.” Grubbs v. Hannigan , 982 F.2d 1483, 1488 (10th Cir. 1993) (quoting Born v. Osendorf

, 329 F.2d 669, 672 (8th Cir. 1964)). In this case , none of the evidence offered by plaintiffs is “so clear and irr efutable” as to leave no room for other reasonable explanations, such as those made b y the district court and jury here. Accordingly, we detect no error. G. Presumption of Life We also reject plaintiffs’ contention that the dist rict court erred in refusing to apply the Oklahoma definition of “death.” Plain tiffs cite the Oklahoma Uniform Determination of Death Act for the proposit ion that Lee and other FTC personnel were required to make “all reasonable att empts to restore spontaneous circulation or respiratory functions.” Okla. Stat. tit. 63, § 3122 (2002). However, the section on which plaintiffs rely is “part of th e public health laws and defines the conditions establishing that a person is dead,” In re Estates of Perry , 40 P.3d 492, 496 (Okla. Civ. App. 2001), and does not in ou r view create an evidentiary presumption contrary to the district court’s findin gs. The district court did not commit error in refusing the proffered instruction. H. In Camera Review-46-

Plaintiffs contend that the government’s “ex parte submissions” to the court violated their rights to due process and access to the courts. However, the four submissions identified by plaintiffs as “ex parte” are more properly characterized as “in camera” submissions. Each matter was submitted for the trial court’s consideration under a claim of privilege or legal o bligation of secrecy, and the plaintiffs had adequate notice of such submissions and an opportunity to argue for the matter’s disclosure. To the extent the submission of any matter can righ tly be construed as an ex parte proceeding, we note that “[n]ot all ex parte proceedings violate due process or even raise a serious constitutional issue.” Simer v. Rios , 661 F.2d 655, 679 (7th Cir. 1981). We have carefully examined the re cord regarding these submissions and find no merit in the Trentadues’ al legation of error. Moreover, the Trentadues can point to no prejudice or harm ar ising from the motions for in camera review, nor did they contemporaneously alleg e bias by the district court. Accordingly, we conclude that the district court di d not abuse its discretion. See United States v. Perez-Gomez , 638 F.2d 215, 218 (10th Cir. 1981). I. Protective Order Nor do we agree that the protective order entered b y the district court violated plaintiffs’ constitutional rights. Distri ct courts have discretion to issue protective orders consistent with the limitations s et forth in Fed. R. Civ. P. 26(c).-47-

After reviewing its order we cannot say that the di strict court “abdicate[d] its responsibility to oversee the discovery process andto determine whether filings should be made available to the public.” Procter & Gamble Co. v. Bankers Trust
Co. , 78 F.3d 219, 227 (6th Cir. 1996). The government s howed good cause for the need to protect confidential materials produced during discovery, and the court’s order “provide[d] a mechanism for the parti es to challenge the designation of confidentiality as to particular items of inform ation.” Order, No. CIV-97- 849-L, at 6 (W.D. Okla. Aug. 18, 2001). J. Permission to File Plaintiffs also contend that the district court’s o rder preventing them from filing motions, briefs, and other matters of record without prior court approval constituted an unconstitutional “filing ban.” The order, however, was not a ban. It merely required the Trentadues to apply to the c ourt for permission to file motions. Order, No. CIV-97-849-L, at 1 (W.D. Okla. June 28, 2000). Further, the district court imposed the order because it fou nd that “the parties filed what must be a record-setting number of new motions whic h, from the court’s brief review, suggest anything but an attempt to prepare this matter for trial in an efficient and reasonable manner.” Id. In their conclusory allegations, plaintiffs do not identify any documents whose exclusion as a result of the district court’s order prejudiced their case. Thus, no constitution ally significant deprivation-48-

occurred and the court’s action was soundly within its discretion. See Gust v.
Jones , 162 F.3d 587, 598 (10th Cir. 1998). K. Additional Findings of Fact Plaintiffs next contend that the district court err ed in denying their request to make findings that the government’s efforts to c onceal the true manner of Trentadue’s death by destroying or fabricating evid ence, perjury, and other similar acts constituted intentional infliction of emotional distress. We previously concluded that the district court’s f inding that the government did not intentionally destroy evidence w as not clearly erroneous. Further, the district court stated that its “ruling s on plaintiffs’ claims for emotional distress are not based on actions taken b y the United States in connection with the investigation of Trentadue’s de ath.” Order, No. CIV-97-849- L, at 24 (W.D. Okla. May 1, 2001). Accordingly, no basis existed for the court to find that such acts constituted intentional inflict ion of emotional distress. Nor is there any basis for reversing the district c ourt’s determination not to find perjury on the part of the guard who allegedly videotaped the entry into Trentadue’s cell. Deference to the trial court’s f indings is at its greatest when those findings are based on determinations regardin g witness credibility. See Anderson v. Bessemer City , 470 U.S. 564, 575 (1985). Nothing in the record suggests the district court’s determination in this respect was clear error.-49- L. Hearsay Objections and Discovery Conduct Plaintiffs argue that the district court erred in e xcluding seven trial exhibits on the basis of hearsay. “Given the fact specific nature of hearsay objections, we accord greater deference to the district court’s he arsay rulings.” United States v.
Fuentez , 231 F.3d 700, 708 (10th Cir. 2000) (citing United States v. Trujillo , 136 F.3d 1388, 1395 (10th Cir. 1998)). Even assuming the district court abused its discretion in excluding a particular exhibit, any e rror in this regard must be considered harmless, given our conclusions above. See United States v. Rivera , 900 F.2d 1462, 1470 (10th Cir. 1990) (a district co urt’s evidentiary decisions must affect a defendant’s substantial rights to warrant reversal). For the same reasons, we reject plaintiffs’ argument that the district court erred in not allowing Jesse Trentadue to pursue his separate emotional distress claim against the government along with plaintiffs’ other FTCA claims. Plaintiffs made a series of conclusory allegations that the DO J was attempting to “indict” Jesse Trentadue for tampering with witnesses. The district court properly concluded that these allegations were collateral to the issues before the court involving Kenneth Trentadue’s death and declined to make additional findings. Moreover, the plaintiffs’ allegations are primarily centered around the conduct of the government’s trial counsel during discovery, an d are not evidence of-50-

misconduct by federal officials investigating Trent adue’s death. We see no abuse of discretion by the court in limiting evidence on this issue. M. Cumulative Error Finally, because the Trentadues have failed to demo nstrate on cross-appeal that the district court committed any material fact ual or legal errors during the course of a nearly four-week trial, their assertion that the cumulative impact of errors deprived them of a fair trial is without mer it. See Rivera , 900 F.2d at 1471.
IV. Conclusion The FTCA action, 02-6030, is vacated and remanded t o the district court for supplemental findings on whether, under Oklahom a law, each plaintiff suffered severe emotional distress. We reverse the judgment entered against Stuart Lee in 01-6444 as barred under § 2676 of the FTCA. Finally, we affirm the district court’s dismissal of plaintiffs’ cross -appeals in case numbers 02-6037 and 02-6051, and affirm the court’s dismissal of th e Bivens action against Kenneth Freeman. The judgment is affirmed in part, reversed in part, and the case remanded.