* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TREVA L. JOHNSON

Plaintiff - Appellant,

v. HATHCOCK TRUCK LINES; SAMMY T. OTWELL,

Defendants - Appellees. No. 97-6315 (D. Ct. No. 96-CV-1049-T) (W. D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , TACHA , and BALDOCK , Circuit Judges.

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. Plaintiff appeals from a final judgment entered by the district court in accordance with a jury verdict for the defense. Onappeal, plaintiff raises eleven- 2 -

separate allegations of reversible error. We take jurisdiction under 28 U.S.C. § 1291 and affirm. Background Plaintiff Treva L. Johnson brought a personal injury action in the Western District of Oklahoma pursuant to 28 U.S.C. § 1332 a fter she, heading north, struck the end of defendants’ trailer as it made a left turn to head south. A fourway stop sign marked the intersection where the acc ident occurred. Defendant Sammy T. Otwell drove and defendant Hathcock Truck Lines owned the truck. Defendants maintain that the accident occurred because plaintiff, impaired by alcohol, failed to stop at the intersection. Pl aintiff denies any impairment. Instead, she argues that she never saw the stop sig n for any of several reasons: 1) it was bent over; 2) the reflective material wa s old and not properly operative; 3) the headlights of defendants’ truck were in her eyes; and/or 4) the trailer blocked her view of the sign. In addition, plainti ff contends that Mr. Otwell improperly cut the corner when turning, thereby pla cing the trailer in her lane of traffic, and that the trailer’s running lights musthave been inoperative for her not to see the trailer. After a full trial, the jury r eturned a verdict for defendants. This appeal followed. Additional essential facts w ill appear in our discussion of each of the plaintiff’s individual claims below. Discussion- 3 -

I. Alleged Error No. 1: Improper Accusation of Pe rjury At the conclusion of defense counsel’s cross-examin ation of Mr. Mathews, plaintiff’s rebuttal witness, he posed following qu estion: “Do you know what perjury is Mr. Mathews?” Plaintiff contends that the district court committed reversible error by overruling her objection to thi s query. We disagree. Federal Rule of Evidence 611 asserts that the trial court s hall exercise control over the mode and order of interrogating witnesses and prese nting evidence. We will not disturb the district court’s conduct of trial proce edings, including rulings on motions and objections, unless the record affirmati vely shows that it abused its discretion. See Higgins v. Martin Marietta Corp. , 752 F.2d 492, 498 (10 th Cir. 1985). We find that the trial court did not abuse its disc retion in overruling plaintiff’s objection. Unlike the conduct in the 1 920s cases upon which plaintiff relies, this single question did not constitute suc h a “bitter and passionate” attack on the witness so as to arouse the prejudice of the jury. Indeed, the question was not even a direct charge of perjury. Additionally, we find that plaintiff suffered no pr ejudice from the timing of the court’s ruling, which occurred immediately afte r Mr. Mathews had been excused as a witness. Although plaintiff contends that she suffered prejudice because the timing of the court’s ruling precluded any redirect examination of Mr.- 4 -

Mathews, the record is devoid of any indication that plaintiff desired redirect. In fact, moments after excusing the witness and overru ling the objection, the court, at a bench conference, asked whether both parties n ow rested their cases. Plaintiff answered yes. Thus, this court does not find that the ruling or actions of the district court constitute reversible error. II. Alleged Error No. 2 - Treatment of Witness Mr. Mathews A. Denial of Plaintiff’s Motion to Add an Expert Plaintiff next contends that the court erred in denying her motion to add Mr. Mathews as an expert witness after submission o f the final witness list. At the time plaintiff prepared her list of expert witn esses, Mr. Mathews was recuperating from heart surgery and unavailable to testify. Some five months after filing her initial witness list, plaintiff su bmitted a motion for leave to add Mr. Mathews to her expert list on June 2, 1997, aft er learning that Mr. Mathews had returned to work. The district court denied he r motion on June 9, 1997. Federal Rule of Civil Procedure 16(b) states that a“schedul[ing order] shall not be modified except upon a showing of good cause and by leave of the district judge.” Thus, the district judge has considerable latitude in determining whether a scheduling departure is warranted. Moreover, the “admissibility of expert testimony is within the broad discretion of the tri al court and is reviewed for abuse of discretion only.” Curtis v. Oklahoma City Pub. Schs. Bd. of Educ. , 147- 5 -

F.3d 1200, 1219 (10 th Cir. 1998); see also, e.g. , Summers v. Missouri Pac. R.R. Sys. , 132 F.3d 599, 603 (10 th Cir. 1997). Thus, the district court had broad discretion as to whether plaintiff could add Mr. Mathews to her list of experts. It did not abuse that discretion here. Plaintiff attempts to bolster her argument by claim ing that because of the delay of the pretrial proceedings and discovery, de fendants would have had ample opportunity to depose Mr. Mathews and therefore notbe prejudiced by the addition. We disagree. The conduct of the plainti ff and plaintiff’s counsel in this case undoubtedly contributed to these delays. Plai ntiff’s counsel failed to comply with court orders to compel discovery and was nearl y held in contempt. Plaintiff also failed to appear for her scheduled deposition, for which she was sanctioned. We refuse to reward such behavior by using it as anexcuse to extend the deadline for other discovery purposes. B. District Court’s Comments Plaintiff further alleges that the court committed reversible error by calling Mr. Mathews a “so-called expert” in the presence of the jury, thereby undermining his credibility, and by attempting to c ut off plaintiff’s examination of him. We disagree. Mr. Mathews was not called a s an expert witness. Rather, the record indicates that at a bench conference the court used its discretion, over objection of the defense, to allow Mr. Mathews to t estify only as a rebuttal- 6 -

witness. Because Mr. Mathews was not testifying as an expert, it is hard to see how the court’s referral to him as a “so-called exp ert” undermines his credibility as a lay witness. In any event, we find that this characterization does not constitute reversible error. Furthermore, plaintiff’s additional complaint that the trial court impermissibly attempted to cut off questioning has no merit. The trial court has broad discretion to ensure that rebuttal testimony does not exceed fixed boundaries. See United States v. Olivo , 80 F.3d 1466, 1470 (10 th Cir. 1996) (“A trial court has broad discretion to admit or exclud e rebuttal evidence.”). The record indicates that the district court merely pre vented plaintiff from questioning Mr. Mathews about matters beyond the permissible sc ope of rebuttal. III. Alleged Error No. 3: Bias of Trial Court This court takes an allegation of bias on the part of a district court judge very seriously. In this case, we find the claim co mpletely unfounded. On June 30, 1997, the magistrate judge ordered plai ntiff to produce all medical records relating to the accident. Plaintif f’s counsel produced the records, but made approximately twenty to twenty-five redact ions. Defendants moved to compel production of the deleted portions. The di strict court granted this request on July 22, 1997, and directed plaintiff’s attorneyto produce the unredacted records no later than 5:00 pm on Thursday, July 24, 1997. Plaintiff’s counsel- 7 -

again refused to properly produce the documents, an d on July 25, 1997, the trial court ordered a contempt hearing for July 29, 1997, to give plaintiff’s counsel an opportunity to show cause why he had not obeyed the order. Plaintiff’s claim of bias rests primarily on comments made by the distri ct court at this contempt hearing. During the contempt hearing, the court rebuked plai ntiff’s counsel for attempting to extend the time of the discovery orde r despite the clear July 24 deadline. The court also noted that counsel’s cond uct had impeded the case and distracted the court from other pressing matters. It further commented upon counsel’s lack of familiarity with the rules of the court and applicable statutes in the case, but did state that it was “not too late t o redeem” himself. None of these comments show prejudicial bias. Plaintiff also points to six additional items that she claims evidence bias on the part of the court during the trial. The first four concern the district court’s supervision of the direct and cross-examination of Mr. Mathews, discussed above. The last two points occurred during the direct exam ination of Damon Smoot, an expert witness and former truck driver. During the examination, plaintiff alleges the district court improperly “cut off” Mr. Smoot’s testimony regarding two critical issues. After a careful review of the rec ord, we find that none of these additional items suggest district court bias.- 8 -

In sum, we find that the record reveals no bias in the conduct of the judge before or during trial. To the contrary, the recor d reflects the district court’s unflagging efforts to ensure that all parties recei ved a fair trial. IV. Alleged Error No. 4: Trial Court’s Conduct Dur ing Plaintiff’s Closing Argument Plaintiff contends that the lower court committed r eversible error by admonishing her counsel during closing arguments. We disagree. The trial judge maintains considerable discretion in supervising arguments of counsel. See Ramsey v. Culpepper , 738 F.2d 1092, 1100 (10 th Cir. 1984). It is not an abuse of the court’s discretion to interrupt closing arguments and administer mild admonitions to correct an apparently improper argument. See United States v. Rosenfeld , 545 F.2d 98, 103 (10 th Cir. 1976). During a lengthy bench conference, counsel for both sides agreed to stipulate that pla intiff had not been prosecuted for driving under the influence (DUI) or while into xicated (DWI). Plaintiff’s counsel violated this stipulation during his closin g argument by stating that his client had not been charged with DUI or DWI. The trial court corrected counse l by declaring that his statement was improper and co ntrary to the stipulation, and advised the jury to disregard it. Immediately afte r this correction, plaintiff’s counsel again declared that his client had not beencharged. Noting that counsel had violated the stipulation twice within a minute and a half, the court advised counsel that under the precise terms of the agreeme nt, he should have stated- 9 -

“prosecuted” rather than “charged.” This conduct f alls well within the court’s discretion of supervising arguments. V. Alleged Errors Nos. 5 & 6: Jury Instructions Plaintiff argues that the district court erred in f ailing to instruct the jury that backing across an intersection constitutes neg ligence per se and that it erred in not giving a specific instruction on the issue o f making an improper turn. We disagree. The “admission or exclusion of a particu lar jury instruction is within the sound discretion of the trial court.” Okland Oil Co. v. Conoco, Inc. , 144 F.3d 1308, 1324 (10 th Cir. 1998). In addition, we conduct a de novo rev iew of the instructions to determine whether, as a whole, theyaccurately stated “the governing law and provided the jury with an ample u nderstanding of the issues and applicable standards.” Id. We find that the trial court did not commit reversi ble error in failing to instruct the jury that backing across an intersecti on is negligence per se. Given the scant evidence in the record indicating that de fendant Otwell backed his truck across an intersection, the trial court did not errin refusing to give plaintiff’s proffered instruction, nor were the instructions as a whole misleading or incomplete due to this omission. We further hold that the court did not err by faili ng to giving a specific instruction regarding an improper turn. First, pla intiff admits that she did not- 10 -

object to the omission. Second, plaintiff admits that this “may not be reversible error standing alone.” Appellant’s Br. at 36-37. Third, nothing in the record indicates that plaintiff requested any particular i nstruction dealing with this issue. Finally, failure to instruct the jury regarding the alleged improper turn did not make the instructions as a whole inaccurate or misl eading. VI. Alleged Error No. 7: Dismissal of Prospective Juror Plaintiff contends that the district court committe d reversible error by dismissing a prospective juror, a retired truck dri ver, despite his assertion that he could be fair and objective. We disagree. The dis trict court has the duty and authority to dismiss jurors for cause. See 28 U.S.C. § 1870 (“All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.”). Considering that the e ntire case hinged upon the negligence of a truck driver, the district court ce rtainly did not abuse its discretion when it dismissed a juror with thirty-tw o years of truck driving experience. In any event, plaintiff apparently fai led to object to the discharge of the juror and therefore did not properly preserve the issue for review. See Vanskike v. ACF Indus. , 665 F.2d 188, 207 (8 th Cir. 1981). VII. Alleged Error No. 8: Issuance of Subpoenas Du ces Tecum Without Notice Plaintiff argues that the issuance of seventeen sub poenas duces tecum by defendants’ counsel without notice to plaintiff con stitutes a violation of her- 11 -

constitutional right to privacy under the Fourth Am endment, a violation of physician-patient privilege, and a violation of Rul e 45 of the Federal Rules of Civil Procedure. Plaintiff notes that “the remedy to plaintiff at this point is monetary sanctions . . . and an order for defendant s’ attorney to return [the improper discovery material with a signed affidavitstating] that no copies will be retained.” Appellant’s Br. at 43. Because the dis trict court has previously ordered that defendants return all records obtainedby the improper subpoenas in its June 30, 1997, order and plaintiff makes no ass ertion that defendant failed to comply with this directive, we do not address that request. This court will reverse the denial of monetary disc overy sanctions only if it finds that the district court abused its discretion. See, e.g. , Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1519 (10 th Cir. 1995); Ehrenhaus v. Reynolds , 965 F.2d 916, 920 (10 th Cir. 1992). The record indicates that the distric t court undertook a careful inquiry of the issues raised byplaintiff and made a detailed decision in its order of June 30, 1997. The court stated: Defense counsel claims that the lack of notice to P laintiff’s counsel was a clerical oversight, and although Plaintiff’s counsel does not agree, he offers no evidence otherwise. Defense co unsel further claims that when the error was discovered, attempts were made to remedy the situation by providing Plaintiff with co pies of all documents received and offering to provide copies t o Plaintiff’s counsel notifying parties in writing to disregard s ubpoenas if no response had been made; offering to agree to a prot ective order with respect to the documents; placing the documents rec eived in a separate file and agreeing not to read them; acknow ledging the- 12 -

mistake and apologizing; and taking corrective meas ures to prevent a reoccurrence. The court concluded: Because the undersigned finds neither deliberate ac tion on the part of the Defendants nor serious prejudice or damage to P laintiff, Plaintiff’s motion is denied for suppression of evi dence and other sanctions with the exception that defense counsel are ordered to return any records obtained by the subpoenas which have not been returned to the producer of such records. We cannot find that the district court abused its d iscretion in its handling of this

matter. VIII. Alleged Error No. 9: Sanctions Against Plain tiff Plaintiff argues that she should not have been sanc tioned by the district court for her failure to appear at a noticed deposi tion on May 27, 1997. We disagree. As noted above, we “review rulings on di scovery sanctions for abuse of discretion in light of the totality of the circumstances.” Gomez , 50 F.3d at 1519. We find that the district court did not abuse its d iscretion in awarding defendants their attorneys’ fees and costs for the failure of plaintiff to appear at the noticed deposition. There is ample evidence in the record to support the district court’s conclusion that defendants did not violate their ag reement to “try” to set deposition by agreement rather than notice, includi ng the district court’s recognition of five separate letters that span the months of January to May in which defense counsel requested convenient depositi on dates. Therefore, the- 13 -

sanctions set by the district court will stand. IX. Alleged Error No. 10: Independent Medical Exam Plaintiff next claims that the trial court erred inordering her to appear at an independent medical examination. As plaintiff note s, given that no examination occurred, this issue is pertinent only if this court decides to reverse and remand the case for a new trial. Because we affirm, we ne ed not address this issue. X. Alleged Error No. 11: Order to Compel Finally, plaintiff contends that the trial court erred in ordering the production of unredacted medical records stemming f rom the accident and sanctioning plaintiff’s counsel for failing to time ly submit them. Plaintiff asserts that under Nitzel v. Jackson , 879 P.2d 1222 (Okla. 1994), portions of the report were not discoverable. In its order compelling pro duction of the unredacted medical records, the district court found plaintiff’s reliance on Nitzel misplaced because medical records pertaining to the night of the accident were relevant, not privileged, and discoverable. We review de novo the district court’s determinatio n of state law and the corresponding scope of privilege. See Frontier Ref., Inc. v. Gorman-Rupp Co. , 136 F.3d 695, 700 (10 th Cir. 1998). We agree with the district court thatno privilege existed to support the plaintiff’s redact ion of the medical records. In our view, the Nitzel court sought simply to ensure the relevancy of dis covered- 14 -

material and prevent “fishing expeditions.” 879 P. 2d at 1223 & n.*. The Oklahoma Supreme Court’s recognition that a tort pl aintiff’s patient-physician privilege applies to information unrelated to her c laim underscores the court’s primary concern with relevancy as it relates to waiver of privilege. See id. (finding that filing a personal injury claim does n ot require a plaintiff “to execute a general medical authorization entitling the defen dant to obtain all of the plaintiff’s medical records”). Here, plaintiff’s c ounsel redacted medical reports from the night plaintiff was injured. These record s were undoubtedly relevant to plaintiff’s personal injury claim because they reve al her physical condition immediately following the accident. We find that p laintiff’s waiver of the physician-patient privilege by filing this personal injury action extends to these relevant medical records. Therefore, the district court was correct to compel their production. Finally, we uphold the sanctions against plaintiff’ s counsel for failing to produce the records when ordered by the magistrate judge. The trial court did not abuse its discretion in this regard. Conclusion Based upon the foregoing conclusions, we find no re versible error and AFFIRM.- 15 - ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge