* This order and judgment is not binding precedent , except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### AUG 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOUISE L. O’HEARON, Plaintiff - Appellant Cross-Appellee,

v. CASTLEVIEW HOSPITAL and ANNA MAE PEREZ, Defendants - Appellees Cross-Appellant. Nos. 96-4140, 96-4146, & 96-4175 (D.C. No. 93-C-798-W) (District of Utah)

ORDER AND JUDGMENT *

Before TACHA , KELLY and LUCERO , Circuit Judges.

Louise O’Hearon appeals from a jury’s finding that defendants Castleview Hospital (“Castleview”) and Anna Mae Perez were notnegligent in this medical malpractice action. O’Hearon challenges evidentiary and procedural rulings made by the trial court and requests a new trial. Defen dants cross-appeal the denial of1 Because we affirm the trial court’s rulings and t he jury’s verdict, we need

not address defendants’ appeal of the denial of the ir motion for a directed verdict. -2- their motion for a directed verdict. We exercise j urisdiction pursuant to 28 U.S.C. § 1291 and affirm. 1
I O’Hearon fell and broke her hip at the home of her son Rick O’Hearon on August 19, 1991. She was taken to Castleview where her broken hip was repaired. On August 29, 1991, about nine days afte r the corrective surgery, while still in-patient at the hospital, she was directed by Perez, a hospital nurse, to use a toilet extender. The second amended complaint alle ges that she expressed her discomfort with using the extender. According to p laintiff, when she sat on the extender, she fell over and struck the hip that had just been repaired, necessitating additional surgery. Plaintiff then sent Castleview a notice of intent t o file a medical malpractice action, as required by the Utah Medical Malpractice Act (“UMMA”).
See U.C.A. § 78-14-8. Simultaneously, she sent a sett lement offer to her son’s insurance company, setting forth the theory of liab ility against him and requesting both special and general damages. In early August 1993, pursuant to UMMA, see U.C.A. § 78-14-12, O’Hearon requested a pre-litigat ion panel review. Her initial complaint, dated September 3, 1993, names Rick O’He aron as the sole defendant-3-

and alleges that his negligence caused the fall that broke and permanently damaged her hip. On January 24, 1994, appellant re ceived an affidavit certifying compliance with UMMA, a prerequisite for pursuing acourt action for medical malpractice against the hospital and its personnel. She then amended her complaint to add negligence and medical malpractice claims against the hospital and the nurse. On February 21, 1995, plaintiff settled her lawsuitagainst her son and released him from all claims. A month later, the r emaining defendants filed motions to (1) disclose the terms of this settlemen t to the jury; (2) apportion any fault attributed to Rick O’Hearon; and (3) offset t he settlement amount against any subsequent judgment that might be awarded to pl aintiff. Over plaintiff’s opposition, the district court permitted the remain ing defendants to disclose the settlement offer and the fact of the settlement to the jury. The court denied defendants’ request that fault be apportioned. A five-day jury trial was held in June 1996. The d istrict court denied defendants’ motion for a directed verdict. The jury returned a verdict against O’Hearon. The district court also denied appellant ’s Rule 59 motion for a new trial. On appeal, O’Hearon challenges the following ruling s by the district court: (1) admitting into evidence the settlement offer to her son, and the signed release-4-

absolving him and his insurer of responsibility forany claims arising from the August 19, 1991 incident, while prohibiting her fro m introducing the settlement amount; (2) admitting into evidence her initial complaint, permitting defendants to cross-examine her as to its contents, and prohib iting her from presenting evidence as to Utah’s medical malpractice prelitigation procedures; (3) denying her motion for a new trial based on alleged juror m isconduct and improper argument by defense counsel; and (4) denying her mo tion to strike a juror for

cause. II All of the evidentiary errors alleged by plaintiff are reviewed for abuse of discretion. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). “When we apply the abuse of discretion standard, we deferto the trial court’s judgment because of its first-hand ability to view the witne ss or evidence and assess credibility and probative value.” Towerridge, Inc. v. T.A.O., Inc. , 111 F.3d 758, 763 (10th Cir. 1997) (quotation omitted). The dist rict court’s essential control over the trial process should not be questioned abs ent a manifest injustice to the parties. See Gracia v. Lee , 976 F.2d 1344, 1345 (10th Cir. 1992).
A O’Hearon argues that the trial judge erred in admitting evidence of the settlement offer to Rick O’Hearon and subsequent re lease of all claims against-5-

him. The admission of settlement offers and settle ments is generally prohibited under the Federal Rules of Evidence. See Fed. R. Evid. 408. Rule 408 provides as follows: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a val uable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not ad missible to prove liability for or invalidity of the claim or its amo unt. Evidence of conduct or statements made in compromise negotiatio ns is likewise not admissible . . . . This rule [] does not requir e exclusion when the evidence is offered for another purpose, such as pr oving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigat ion or prosecution. Fed. R. Evid. 408. The defendants contend, however , that the admission of the settlement evidence at issue here did not prove the “invalidity” or contest the amount of O’Hearon’s claims against them, but was o ffered for impeachment purposes. Consequently, they argue that Rule 408 h as no application here. The district court appears to have accepted this argume nt in admitting both the settlement offer and a redacted version of the rele ase. The plain text of Rule 408 permits evidence of a se ttlement to be admitted for purposes other than to prove the validity or amount of a claim. See, e.g. , Towerridge , 111 F.3d at 770 (upholding admission of evidence that government settled plaintiff’s claims for damages caused by go vernment’s delay because relevant to show defendant acted in bad faith); Broadcort Capital Corp. v. Summa Med. Corp. , 972 F.2d 1183, 1194 (10th Cir. 1992) (upholding a dmission of2 O’Hearon argues on appeal that the defendants use d the settlement offer

and release for purposes other than impeachment, in particular to suggest that she had already been compensated for the damages she so ught at trial. But O’Hearon fails to indicate that she raised any objection to defendants’ suggestion to this effect, so we will not further examine the matter here. By the same token, though appellant did move for the admission of the settlem ent amount, she nowhere requested such admission as rebuttal to defendants’ insinuations of double recovery. We will not review errors alleged in the first instance on appeal. See Denison v. Swaco Geolograph Co. , 941 F.2d 1416, 1422 (10th Cir. 1991). Of course, the proper procedure upon admittance of suc h a settlement and release would be to provide a limiting instruction to the j ury regarding the purpose for which it may be used. We cannot tell from the reco rd or briefs before us whether such a limiting instruction was requested or given. -6- evidence related to settlement of entirely different claim); Breuer Elec. Mfg. Co. v. Toronado Syst. of America, Inc. , 687 F.2d 182, 185 (7th Cir. 1982) (upholding admission of settlement evidence to rebut defendant s’ assertion of ignorance as to certain issues until suit was filed). We decline to hold that the court below abused its discretion in admitting this evidence. O’Hearon’s amended complaint attrib utes injuries to Castleview and Perez that her earlier settlement offer identif ied as resulting from her son’s negligence. That inconsistency provides a reasonab le impeachment basis to admit the offer and its subsequent acceptance. 2 We recognize that Rule 408 is designed to encourage settlement of disputes. See Eisenberg v. Univ. of New Mexico , 936 F.2d 1131, 1134 (10th Cir. 1991). But the initial determination as to whether this settlement information is sufficiently relevant to an adequate evaluation of a party’s credibility to justify admittance must be m ade by the trial judge, to whom-7-

we defer absent an abuse of discretion. On the rec ord before us, we conclude there is no reversible error.
B Plaintiff next argues that the trial court abused i ts discretion in admitting into evidence her initial complaint and permitting her to be cross-examined on the assertions therein. The initial complaint, which n amed only Rick O’Hearon as defendant, was superseded by amendment and withdraw al prior to trial. According to plaintiff, its admission constitutes reversible error because, under federal pleading rules, “factual assertions in pleadings th at have been amended or withdrawn are not admissible as admissions nor bind ing upon the party that made them.” Appellant’s Br. at 31. The record does notreveal that O’Hearon objected to the admission of the prior pleadings below on th ese grounds. We therefore review only for plain error. See Denison v. Swaco Geolograph Co. , 941 F.2d 1416, 1422 (10th Cir. 1991) (holding where party enters no objection or objects on different grounds at trial than on appeal, trial co urt’s rulings are reviewed for plain error). Under that standard, O’Hearon’s argument must fail. Contrary to plaintiff’s contention, although assertions made in a supersede d pleading are not binding judicial admissions, such assertions may be treated as ordinary evidentiary admissions. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice &-8-

Procedure § 6726, at 228 (2d ed. 1990). Consequently, they may be admitted against a party as long as they are not treated as binding in the manner of judicial admissions and a party’s explanation for any incons istency or error is given due weight by the trier-of-fact. See id. We are satisfied that the district court gave appellant an adequate opportunity to explain any in consistencies between factual assertions in the initial complaint and subsequent pleadings. It is, however, unclear why the entire complaint wa s admitted because crossexamination of plaintiff as to the factual assertio ns contained therein would appear to be sufficient for any proper purpose. The plead ing itself, with its caption naming only Rick O’Hearon as defendant, may have be en unduly prejudicial and insufficiently probative to warrant admission. How ever, we can find nowhere in the record where plaintiff objected to the admissio n of the text of the pleading on these grounds. Nor has she persuaded us that any s uch error might amount to manifest injustice. See Smith v. Northwest Fin. Acceptance Corp. , 129 F.3d 1408, 1416 (10th Cir. 1997) (declining to reverse error n ot preserved at trial absent showing of manifest injustice). In fact, the only objection made below was that the admission of the initial complaint and subsequent cross-examination of plain tiff as to its general development and its contents violated the attorney- client privilege. For many of the questions to which this objection was lodged, h owever, the elicited information-9-

was not related to “communication between the clien t and the attorney . . . made in confidence of the relationship and under circumstan ces from which it may reasonably be assumed that the communication will remain in confidence.” United States v. Lopez , 777 F.2d 543, 552 (10th Cir. 1985). Further, to the extent that the district court may have erred in permitting some of these questions, appellant’s argument as to how the inclusion of this testimony prejudiced her is difficult to decipher. See Frontier Ref., Inc. v. Gorman-Rupp, Inc. , 136 F.3d 695, 705 (1998) (error in admitting evidence protected by attorney- client privilege “requires reversal only if it affected the substantial rights of the parties”). In our own review of the record, we conclude that the admissio n of this testimony did not so prejudice plaintiff and decline to find reversible error. C Plaintiff contends that the trial court abused its discretion in not permitting her to inform the jury that UMMA restricts a plaint iff’s ability to file a malpractice action prior to completing certain procedures. See U.C.A. §§ 78-14-8, 78-14-12 (providing that no malpractice action may be brough t until plaintiff gives a prospective defendant at least ninety days notice o f an intent to commence an action and has gone through a pre-litigation panel hearing). She argues that, as a result, she was unable to explain adequately why he r initial complaint, filed prior-10-

to completion of UMMA’s prelitigation process, name d only Rick O’Hearon as a defendant and made no mention of the hospital or Perez. However, plaintiff misconstrues the ruling below onthis matter. The trial court merely barred her attorney from testifying himself as to these procedures, concluding that, under the Utah Rules of Profession al Responsibility, “a lawyer shall not act [] as an advocate in a trial in which the lawyer is likely to be a necessary witness.” Appellant’s App. at 70. It do es not appear from the record that the trial judge prevented plaintiff from prese nting an expert to testify as to the requirements for filing a malpractice action under Utah law, and plaintiff offers no explanation as to why no expert was presented. Und er these circumstances, we find no abuse of discretion.
III Plaintiff challenges the district court’s denial of her motion for a new trial. We review that decision under an abuse of discretion standard. See Unit Drilling Co. v. Enron Oil & Gas Co. , 108 F.3d 1186, 1193 (10th Cir. 1997). Considering each of three plaintiff’s arguments, we conclude no ne has merit. O’Hearon first argues that a new trial or evidentia ry hearing is warranted for alleged juror misconduct. Immediately after the ju ry retired to deliberate, but before a verdict was rendered, the trial judge repo rted to the parties that he had witnessed a brief communication between one of the defendants’ representatives-11-

and a juror outside the elevator. Defendants submi tted an affidavit from Bonnie Cook, the offending party, stating that no improperdiscussion had taken place, and that she had merely commented on the juror’s jewelry. Subsequent to the rendering of the verdict, plaintiff moved for a new trial based on this improper contact. The trial court rejected this motion, rul ing as follows: No request was made by the plaintiff for any inquiry . . . , nor was any objection made . . . until plaintiff filed her Rule 59 motion some ten days after the return of the verdict and the discha rge of the jury. . . . I regard any interaction between Cook and this juror to have been illadvised and improper. Nevertheless, I don’t find e vidence has been presented sufficient to justify a hearing or as bas is for a new trial. Moreover any objection by the plaintiff relating to this incident should have been made before the jury verdict was r endered and the jury was discharged. Appellees’ Supp. App. at 307-08. Plaintiff has pointed to no evidence that causes us to question the trial court’s assessment of this matter, nor has she expl ained why an objection or request for mistrial was not entered at the time sh e first learned of the improper contact. Furthermore, she has not demonstrated how the fundamental fairness of the proceedings may have been affected. See Vanderwater v. Hatch , 835 F.2d 239, 244 (10th Cir. 1987) (“Subject to exceptions when t he conduct alleged clearly affects the fundamental fairness of the proceedings , an objection alleging juror misconduct may be rejected if not raised in a timel y manner.”). We have expressly rejected a per se requirement that the trial court conduct an evidentiary hearing-12-

whenever there is a suggestion of possible juror mi sconduct arising after trial has commenced. See United States v. Bradshaw , 787 F.2d 1385, 1390 (10th Cir. 1986) (“In responding to allegations of juror bias that a rise during a trial, the trial court’s decision as to how to proceed will not be reversed except for an abuse of discretion.”). We see no reason to conclude that t he trial court abused its discretion in denying this motion. O’Hearon also argues for a new trial because a juro r requested of the court clerk the telephone number of one of the defendants ’ expert medical witnesses. According to an affidavit of defendants’ paralegal, defendants did not furnish this number to the clerk to pass on to that juror until after the jury returned its verdict. Plaintiff presents no evidence suggesting defendant s initiated any contact with this juror or in any way responded to the juror’s reques t prior to the verdict. We agree with the district court that the facts before us ar e insufficient to suggest any improper contact between that juror and either the expert or any representative of the defendants. Plaintiff next argues that the defense attorney com mitted fraud on the court by arguing in summation that she should have named the hospital and Perez in the initial complaint. However, she fails to cite to a ny portion of the record in support of this argument. See United States v. Rodriguez-Aguirre , 108 F.3d 1228, 1238 n.8 (10th Cir. 1997) (appellant bears responsibility of tying relevant facts-13-

supported by specific record citations to legal con tentions). Moreover, from our own review of the record, we conclude that even wer e such improper argument made by defense counsel, plaintiff made no objectio n, and no statement in the closing argument rises to the level of plain error. See Denison , 941 F.2d at 1422.
IV Finally, O’Hearon appeals the district court’s deni al of her challenge for cause of a potential juror who stated that she had five aunts who were nurses and that she had worked in a hospital as a nurse’s aide . When asked by the court if that would affect her judgment, the potential jurorresponded: “Probably not. I think I could make a fair judgment.” Appellant’s App. at 44. Plaintiff argues that this answer was equivocal and required dismissal of this juror. We review the district court’s refusal to strike a juror for cause for an abuse of discretion. See Getter v. Wal-Mart Stores, Inc. , 66 F.3d 1119, 1122 (10th Cir. 1995). We conclude that the district court was well within it s discretion when it determined that the juror’s answer indicated that she thought she could be fair, and consequently denied plaintiff’s challenge. Moreover, plaintiff has shown no prejudice from the denial of this challenge as this juror was ultimately not seated on the jury.-14- V For the reasons set forth above, the trial court’s rulings are AFFIRMED.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge