___________ No. 95-1703

___________ Monty L. Roth, * * Appellant, * * Appeal from the United States v. * District Court for the * District of South Dakota. Homestake Mining Company of * California, a California * Corporation, * * Appellee. *

___________ Submitted: October 20, 1995 Filed: December 20, 1995

___________ Before McMILLIAN, ROSS, and BOWMAN.

___________ BOWMAN, Circuit Judge.

Monty L. Roth is permanently and totally disabled as a result o f carp al tunnel syndrome that developed while Roth was working for th e Ho mestake Mining Company. Homestake insures itself against workers ' comp ensation claims and eventually paid Roth approximately $326,000 t o settl e his claim. Homestake had initially refused to pay the workers ' compens ationbenefits to which Roth was entitled, and Roth filed thi s action in the District Court alleging that Homestake acted in bad faith. The jury found that Homestake had not denied Rot h's claim in bad faith and returned a verdict in

### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota. -2- favor of H omestake. The District Court entered judgment on the verdict. 1 On appeal, Roth argues that the District Court abused its discretion b y admitting evidence of the $326,000 settlement of the underlying workers' compensation claim without also allowing Roth to show that a third of that amount wa s paid to Roth's attorney. Roth also argues that the Distric t Court erred when it refused to submit the issue of punitive damages to the jury. We affirm.

Roth w as employed by Homestake from 1972 to 1990. Roth was unabl e to work after 1990 as a result of the recurring effects of carpal tunnel syndro me. Roth was classified as permanently and totally disabled

. Homesta ke, however, refused to pay the workers' compensation benefit s claimed by Roth. Roth filed a petition in 1991 with the appropriate state agencyseeking the benefits that Homestake had refused to pay. During a hearing before the state agency some three years later, Homestake agreed to settle the case. The settlement amounted to approximately $326,000, on e third of w hich was paid to Roth's attorney. Before Homestake settle d Roth's worker's compensation claim, however, Rot h had filed this bad-faith action in the District Court. Roth sought both actual and punitive damage s fro mHomestake. Roth claimed that part of his actual damages was th e attorney fees that he had incurred in order to recover the workers ' compensation benefits Homestake wrongly refused to pay.

Prior to trial, Homestake moved to exclude evidence relating to the attorney fees incurred by Roth during the underl ying workers' compensation action. Homestake ar gued that if any attorney fees were to be awarded in Roth's present action, South Dakota law required the amount to be set by the court , see S.D. Codified Laws Ann. § 58-12-3 (1990), and thus ther e could be no proper purpose in presenting the evidence in question to the jury.

### The exhibit at issue is the settlement ag reement between Roth 2 

### and Homestake. The District Court received the exhibit as a part of Roth's exhibit book, and Homestake did not object to th e adm ission of the settlement agreement. During the trial Rot h att empted to withdraw the exhibit, but by then counsel fo r Homestake, in reliance on the exhibit book, already had refe rred to the settlement amount in his opening statement, without objection from Roth. -3- The District Court agreed and granted Homestake's motion. Roth has no t appealed that pre-trial ruling. However, Roth c laims that evidence of the attorney fees should have been admitted at the trial because the District Court allowed the jury to see an exhibit that showed that Roth had receive d $326,000 from Homesta ke in settlement of his workers' compensation claim. Roth argues that it was unfairly prejudicial to allow the jury to believe that he received $326,000 from Homestake when infact he received only two thirds of that amount, the rest going to his att orney. Additionally, Roth argues that the evidence should not have been admitted because "[b]y itsel f the amount of the worker's compensation award is irrelevant as it does not make it more or less likely that Homestake committed bad faith." Roth's Brief at 16. "A district court has broad discre tion when deciding whether to admit evidence, and we will not disturb an evidentiary ruling `absent
a clear an d prejudicial abuse of that discretion.'" Hoselton v. Met z Baking Co
. , 48 F.3d 1056, 1059 (8th Cir. 1995) (quoting Laubach v. Oti s Elevator Co. , 37 F.3d 427, 428-29 (8th Cir. 1994)).

Roth's argument is fatally flawed because it proceeds from th e premise that Homestake introduced the evidence of the settlement amount. The re cord reveals, however, that Roth, not Homestake, introduced th e exhibit that included the settlement amount of a pproximately $326,000 when he inc luded the exhibit in his pre-trial exhibit book. The evidentiar y 2 probl ems that Roth now complains about are thus entirely of Roth's ow n making. Roth failed to withdraw the exhibit pri or to trial even though he knew

### At oral argument, for example, counsel for Roth said, "Once 3 

### th e judge said I couldn't have attorney's fees as a measure o f damages, then I shouldn't have been forced to tell the jury tha t Mr. Ro th received this $300,000." This characterization of th e District Court's ruling is, of course, inaccurate and misleading. Had Roth withdrawn the exhibit showing the amount of the set tlement prior to trial, Roth would not have had to reveal that amount t o the jury. Roth failed to withdraw the exhibit in a timely manner even though he knew that the evidence of attorney fees had bee n exc luded in the District Court's ruling on Homestake's motion i n limine

. -4- that t he amount of attorney fees paid out of the settlement had bee n excluded by the District Court. "The party introducing the inadmissible evidence may not complain." 1 McCormick on Evidence § 57 n.2 (4th ed

. 1992). While evidence that is ruled inadmissible prior to trial can becom e admissibl e at trial if an opponent opens a door to its admission, a litigant may not cons truct a back door through which he can bring in such evidence

. In effect, that is what Roth attempted to do by placing th e settlement amount before the jury. If this evidence was prejudicial and irrelevant without the evidence of Roth's attorney fees, Roth should not have submitted the exhibit in his exhibit book.
Despite the clear record of what transpired in the District Court , Roth apparently argues that (1) he would not have introduced the settlemen t amount a t trial had he known the court would not admit evidence of th e attorney fees and (2) he was surprised by the court's refusal to admi t 3 evidence of the attorney fees. These contention s are wholly without merit because the District Court had ruled prior to tr ial, and prior to the time that the settlement amount was brought to the attention of the jury, that evidence of the attor ney fees incurred by Roth would not be admitted. In other words, Roth invited the alleged error by i ntroducing an exhibit that includ ed the allegedly misleading and irrelevant settlement amount. A t that time Roth knew that the District Court had excluded evidence of Roth' s attorneyfees. The alleged erroneous ruling thus is not reversible. An erroneous ruling generally does

### -5-

not constitute reversible error when it is invited by the same party who seeks on appeal to have the ruling overturned. See Dillon v. Nissan Motor Co. , 986 F.2d 263, 269 (8th Cir. 1993). In the circumstances of this case , we conclude that Roth's argument that the District Court abused it s discretion by admitting evidence of the amount paid by Homestake i n settlement of Roth's workers' compensation claim is meritless.

We need not consider Roth's argument that the District Court erre d when it refused to su bmit the issue of punitive damages to the jury. The jury specifically fou nd that Homestake did not refuse Roth's claim in bad faith. Homestake cannot be liable for punitive damages absent a finding of bad faith. Thus a ny error in refusing to submit the issue of punitive damages to the jury i s harmless. See Clarkson v. Townsend , 790 F.2d 676, 678 (8th Cir. 1986) (per curiam) (holding that any error in admission of evidence of damages was harmless because jury fo und for defendant on issue of liability).

In su m, any error in the admission of evidence of the $326,00 0 settlement amount is not reversible because it was invited by Roth. Any
error in refusing to submit to the jury the issue of punitive damages is harmless because the jury found for Homestake on the issue of liability. For the foregoing reasons, the judgment of the D istrict Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.