Appellate Case: 20-8030 Document: 010110759593 Date Filed: 10/27/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 27, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
WESLEY DALE VINCENT,
Plaintiff - Appellant,
v. No. 20-8030
AVA NELSON,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:16-CV-00270-ABJ)
_________________________________
R. Todd Ingram, Metier Law Firm, Fort Collins, Colorado (Tom Metier, Metier Law
Firm, Fort Collins, Colorado and C. John Cotton, Cotton Law Office, Gillette, Wyoming,
with him on the briefs), for Plaintiff-Appellant.
Malcolm S. Mead, Hall & Evans, LLC, Denver, Colorado (Kenneth H. Lyman, Hall &
Evans, LLC, Denver, Colorado and James C. Worthen, Hall & Evans, LLC, Casper,
Wyoming, with him on the brief), for Defendant-Appellee.
_________________________________
Before HOLMES, Chief Judge, TYMKOVICH, and McHUGH, Circuit Judges.
_________________________________
HOLMES, Chief Judge.
_________________________________
Plaintiff-Appellant Wesley Dale Vincent and Defendant-Appellee Ava Nelson
were involved in a collision while working as coal-haul truck drivers at a mine in
Campbell County, Wyoming. Mr. Vincent initiated a personal-injury case in
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Wyoming federal district court. Following a two-week trial, a jury concluded that
Ms. Nelson did not act with willful and wanton misconduct, and thus was not liable
for Mr. Vincent’s damages.
Mr. Vincent now challenges the district court’s evidentiary rulings during trial,
its denial of his pre-trial motion to compel the introduction of evidence regarding the
mine’s financial interest in the litigation, and the denial of his motion for a new trial.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
judgment.
I. FACTUAL BACKGROUND
Thunder Basin Mine (the “Mine”) is an open-pit coal mine located in
Campbell County, Wyoming. Thunder Basin Coal Company (“Thunder Basin
Coal”), a wholly owned subsidiary of Arch Coal, operates the Mine. Haul-truck
drivers transport the coal on unpaved roads from “the shovel,” which digs the rock
from the Mine’s pit, to “the crusher,” which breaks the coal into smaller chunks.
Aplt.’s App., Vol. 6, at 19 (Trial Tr. Vol. IIa, dated Jan. 14, 2020); id., Vol. 9, at 27,
54–55, 199 (Trial Tr. Vol. VII, dated Jan. 22, 2020).1 Working in twelve-hour shifts,
the drivers make multiple runs between the shovel and the crusher to keep the Mine
operating 24/7. And, given that the Mine operates at night and lacks sources of
illumination like streetlamps, the drivers operate in dimly lit conditions. That makes
for dangerous work given the size of haul trucks. At 27-feet wide, 47-feet long, and
1
Because the page numbers of Appellant’s Appendix are obscured in
certain instances, this Opinion cites to the CM/ECF page numbers.
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25-feet tall, haul trucks are so large that an average-sized adult male is shorter than
the vehicle’s rims. To accommodate the trucks’ mammoth size and ensure a wide
berth between passing rigs, haul roads are generally, at a minimum, 130-feet wide.
Some roads, however, are significantly narrower, requiring coordination between
passing drivers.
On the night of October 13, 2013, Ms. Nelson was several hours into her shift
when Thunder Basin Coal put Mr. Vincent on the same route. As Ms. Nelson drove
her haul truck up and out of the pit, Mr. Vincent drove down into it. When Mr.
Vincent saw Ms. Nelson’s truck coming in the opposite direction, he pulled over and
parked his truck on the side of the road. In attempting to pass, at approximately
2:30 a.m., Ms. Nelson swiped the sideview mirror of Mr. Vincent’s truck with her
own and hit a tail pin that extended from his truck. Mr. Vincent claims to have
suffered serious injuries due to this collision.
Shortly after the accident, two supervisors—Mike McGinty and Jack Steele—
launched an investigation. Based on evidence collected at the accident scene,
interviews, data from computers installed in the Mine’s vehicles, and their own
observations, Mr. McGinty and Mr. Steele concluded that Ms. Nelson was at fault:
[Mr. Vincent] was indeed stopped at the time
the trucks made contact. As [Ms. Nelson]
approached the truck parked on the road, she
thought since she had successfully met and
passed another truck at the same narrow place
in the road earlier that night, she decided to
“go for it.” Unfortunately, she wasn’t far
enough over and her truck made contact with
[Mr. Vincent’s] truck. After her truck hit his
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truck, she stopped, and then resumed pulling
forward.
Id., Vol. 12, at 12 (Investigation Notes from the Ava Nelson/Dale Vincent Truck
Accident, dated Oct. 13, 2013). Ms. Nelson lost her job as a result of the accident.
Over three years later, in 2016, Mr. Vincent filed suit under the Wyoming
Workers’ Compensation Act against Ms. Nelson and three other Thunder Basin Coal
employees.2 Mr. Vincent claimed that the accident resulted in “serious and life
altering injuries,” including “an umbilical hernia, injury to his appendix, . . . injuries
to his back and neck,” and “PTSD.” Id., Vol. 2, at 80–81 (Dist. Ct. Order, filed Sept.
30, 2019). Mr. Vincent sought approximately $3,000,000 in damages. While Ms.
Nelson disputed that figure, her principal defense turned on whether she acted
willfully and wantonly when causing the accident. Absent a finding of willful and
wanton conduct, Wyoming law immunized Ms. Nelson from liability. See Wyo. Stat.
Ann. § 27–14–104(a).
Bearing on that “central” issue was “[t]he location of the crash” as it related to
the width of the road at the site of the collision. Aplt.’s App., Vol. 4, at 115 (Dist.
Ct. Order, filed May 12, 2020); id., Vol. 11, at 115 (Trial Tr. Vol. X, dated Jan. 27,
2020) (counsel for Mr. Vincent explaining to the jury that “[t]he dispute is the
location”). More specifically, the parties disputed whether the collision occurred in
“the narrows”—a straight stretch of the road where, even by the admission of Ms.
2
On April 11, 2019, Mr. Vincent stipulated to the dismissal of all
defendants except Ms. Nelson.
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Nelson’s witnesses, safe passage would have been extremely challenging—or on a
curve leading into a dogleg, where Ms. Nelson maintained there was adequate room
to safely pass.
A. The Evidence
Much of Mr. Vincent’s appeal turns on trial testimony involving an aerial
photograph (the “Aerial Photo”) of the Mine taken prior to the collision. Ms.
Nelson’s three designated expert witnesses—Mr. Steele, Mr. McGinty, and Mr.
Brandon Opfer—did not discuss the photograph during their respective depositions,
and their expert designations did not specifically reference the photograph.
Nevertheless, each used the photograph to formulate an opinion about the location of
the accident.
1. The Aerial Photo
At the beginning of trial, Ms. Nelson introduced the Aerial Photo—an aerial
photograph of the Mine taken on September 24, 2013, that is, roughly three weeks
before the accident. Thunder Basin Coal captures aerial photographs of the Mine
every month to help it assess the amount of coal it has extracted. Ms. Nelson
disclosed the Aerial Photo to Mr. Vincent in December 2018, one year prior to trial.
During trial, Mr. Vincent objected to the Aerial Photo’s admission, arguing
that it did not represent the condition or configuration of the Mine’s roads on the date
of the accident and thus could mislead the jury. Ms. Nelson acknowledged that
because “surface mining road conditions change . . . what is in this photograph is not
the same as what occurred on October 13th.” Aplt.’s App., Vol. 5, at 194 (Trial Tr.
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Vol. II, dated Jan. 14, 2020). Nevertheless, she asked that the court admit the Aerial
Photo to “generally describe the area” and to aid the jury in understanding “where
[Mr. Vincent and Ms. Nelson] were coming and where they were going.” Id. at 194–
95. The court agreed.
2. Mr. Steele’s Designation, Deposition, and Trial Testimony
Ms. Nelson designated Mr. Steele, one of the Mine’s supervisors and accident
investigators, as an expert who could testify about Thunder Basin Coal’s
“investigation into the accident.” Id., Vol. 1, at 86–87 (Def.’s FED. R. CIV.
P. 26(a)(2) Expert Disclosure Statement, filed June 3, 2019). The designation
provided that Mr. Steele’s trial testimony would be “consistent with his deposition
testimony, previously taken in this matter,” and it noted that he could look to “any
relevant documents, articles, and exhibits” to formulate an opinion. Id. at 87. Mr.
Steele did not discuss the Aerial Photo during his deposition, however.
At trial, Mr. Steele testified that, as a superintendent of operations, he was
responsible for coordinating the movement of the Mine’s machinery and
investigating any accidents. Mr. Steele explained that he arrived at the Mine a few
hours after the accident, at approximately 7:00 a.m. By that time, workers had
cleared the trucks from the road. However, other employees, including a late-night
superintendent, showed him where they found the trucks and where they believed the
accident had occurred. Mr. Steele and the late-night superintendent then measured
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the road by “stepping [it] off,” and determined it was 75 to 80 feet wide.3 Id., Vol. 9,
at 32. Mr. Steele also interviewed Mr. Vincent, Ms. Nelson, and another driver who
had driven the same route on the night of the accident. Based on what he saw and
heard, Mr. Steele prepared a detailed diagram of the access road and accident scene.
When Ms. Nelson asked Mr. Steele to identify the location of the accident
based on the Aerial Photo, Mr. Vincent objected, arguing that such testimony
exceeded the bounds of Mr. Steele’s deposition testimony. Overruling that objection,
the district court permitted Mr. Steele to “testify as to where he was directed to go
[when he arrived at the scene of the accident]; . . . where he looked; where he stepped
off.” Id. at 47.
Mr. Steele confirmed that the pit—as it looked on the night of the accident—
generally looked as depicted in the Aerial Photo, which was, again, taken some three
weeks before. And though he acknowledged that the width of the road might have
changed somewhat during the three weeks between the Aerial Photo’s date and the
accident, the shovel and the crusher had not moved. With the shovel and crusher
functioning as fixed landmarks, Mr. Steele marked the location that he went to when
he responded to the accident and “stepped off the distance.” Id. at 56. He identified
that location as “where the road turns,” commenting that it was approximately “75 to
80 feet” wide. Id. at 56. Mr. Steele also testified that “there wasn’t any doubt in
3
We understand this colloquialism to mean that Mr. Steele measured the
width of the road by counting the number of steps it took to walk across it.
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[his] mind” as to the location of the crash, which was “where [he] was shown it
occurred.” Id. at 143.
3. Mr. McGinty’s Designation, Deposition, and Trial Testimony
Ms. Nelson designated Mr. McGinty, the other accident investigator, as an
expert who could testify about Thunder Basin Coal’s “operation on the night [of the
accident], and the operations of the haul trucks in the area where the . . . accident
occurred.” Id., Vol. 1, at 86. The designation further advised that Mr. McGinty
could “rely on any relevant . . . exhibits to illustrate or support his” opinion
testimony, and that his trial testimony would be consistent with that offered in his
deposition. Id. Like Mr. Steele, Mr. McGinty did not discuss the Aerial Photo
during his deposition. But he did explain that when he arrived at the scene, Ms.
Nelson had parked her truck approximately 100 feet away from Mr. Vincent’s truck,
or about “100 feet . . . from the point of impact.” Id. at 251–52 (Dep. of Michael J.
McGinty, dated Feb. 11, 2019). Mr. McGinty also discussed his measurements of the
road, noting that he and a Thunder Basin Coal superintendent determined the road
was “somewhere around 75 to 80 feet wide” after “stepp[ing] the road off” at the
“point where the accident occurred.” Id. at 255–56.
Mr. McGinty testified at trial that he arrived at the scene around 2:45 a.m.,
shortly after the accident occurred. As he drove down the access ramp into the pit,
Mr. McGinty could see Ms. Nelson’s truck, which faced him with the headlights on.
Though the trucks “were separated,” Mr. McGinty could see that they were
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positioned roughly as they were at the time of the collision: Mr. Vincent’s “was
headed in” while Ms. Nelson’s “was heading out.” Id., Vol. 9, at 216.
At trial, Ms. Nelson asked Mr. McGinty to identify the “general area where the
accident happened” on the Aerial Photo. Id. at 213.4 Using the Aerial Photo, Mr.
McGinty, like Mr. Steele, identified the location of the shovel and the crusher, and
pointed to the place where the accident occurred, which was at or around where Mr.
Vincent stopped his truck. Echoing Mr. Steele, Mr. McGinty opined that the road
measured between 75 and 80 feet wide at the site of the accident, a determination he
also reached by “stepping off” the road. Id. at 217.
4. Mr. Opfer’s Designation, Deposition, and Trial Testimony
Ms. Nelson designated Mr. Opfer—another Thunder Basin Coal employee—to
testify about MineStar, a “computer program that takes information from the . . .
computers installed on [the haul trucks] and generates information regarding the
movement and use of the vehicles.” Id., Vol. 1, at 85. In line with this designation,
Mr. Opfer was expected to testify about MineStar’s “operation and use, and its
application in connection to the accident.” Id. Like Mr. Steele’s and Mr. McGinty’s
designations, Mr. Opfer’s designation stated that he could “rely on any relevant . . .
exhibits to illustrate or support his testimony.” Id. at 85–86.
4
The trial transcript states that Mr. McGinty provided “no audible
response” following counsel’s question. Aplt.’s App., Vol. 9, at 213. However, it
appears based on the subsequent testimony in the transcript that Mr. McGinty pointed
at a location on the Aerial Photo.
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In his deposition, Mr. Opfer identified his title as “MineStar [S]upervisor” and
testified that he was charged with ensuring that the “MineStar system is operating
correctly,” including supervising “dispatchers” and the “field techs who repair any
broken items on the MineStar system.” Id. at 217, 219 (Dep. of Brandon Opfer,
dated Jan. 10, 2019). He testified that “all of [Thunder Basin Coal’s] haul trucks are
equipped with a MineStar unit”—that is, “an onboard computer connected to a
wireless network.” Id. at 219–220. According to Mr. Opfer, among other things,
MineStar units provide locational information for the trucks: “So in realtime, near
realtime, depending on how we had the machines configured onboard, they’ll send a
ping back to the office of where they are at for the dispatchers to identify their
location.” Id. at 221.
Mr. Opfer had before him MineStar GPS data regarding the locations of the
haul trucks that were operated by Mr. Vincent and Ms. Nelson on the date of the
accident, October 13, 2013. Notably, however, Mr. Opfer elected to interpret this
data against the background of the Mine’s “digital mine model.” Id. at 222. As Mr.
Opfer explained it:
So we create a digital mine map of . . . where
the road segment—where the road network is
in our mine. And so as the trucks traverse
across the mine site, they’ll go through
different waypoints that we use to connect
road segments, and then as they enter and exit
those waypoints, they will give us locations as
well.
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Id.; see also id. at 227 (agreeing with Mr. Vincent’s counsel’s statement that a
“waypoint is . . . a physical location out in the field, which is represented by your
designating that position . . . in the MineStar system”).
The locational data was stored on what Mr. Opfer called “Gateway” files; a
Gateway file is “a message that the onboard system generates.” Id. at 222; see id. at
227 (“Gateway is just the type of file that we collect. In the MineStar environment,
we call it a Gateway file.”). Notably, as Mr. Opfer’s testimony highlighted, only the
Gateway files containing the haul-truck, locational information were available for the
date of the accident—not the digital mine model. See id. at 228 (testifying that “the
factual location of that truck [Mr. Vincent’s truck] based on this Gateway file” was
available for October 13, 2013, and “the same information” was available for Ms.
Nelson’s truck).
As for the unavailability of the digital mine model for the accident date, Mr.
Opfer testified that the “mine model is dynamic,” and Thunder Basin Coal “did not
archive how the mine model was configured at that time [i.e., the date of the
accident, October 13, 2013].” Id. at 227. And he elaborated in an exchange with Mr.
Vincent’s counsel:
Q: Are you telling us that you have no
images of the . . . Pit in the area where the
collision occurred in the MineStar database?
A: No.
Q: No, you’re not telling me that?
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A: No, we do not have—the . . . MineStar
software does not archive the digital mine
model.
Id. at 228.
The upshot is that, though Mr. Opfer had “factual” GPS data for the haul
trucks for the date of the accident, the digital mine model that captured the
configuration of the Mine on October 13 no longer existed; so, Mr. Opfer could not
say, based on the available digital mine model, with absolute precision, where in the
Mine’s configuration of roadways the parties’ haul trucks collided on October 13. In
particular, Mr. Opfer could not say where the haul trucks were in relation to the
shovel or other physical objects in the Mine. In this regard, when asked by Mr.
Vincent’s counsel, if he could identify the location of the shovel that had loaded Ms.
Nelson’s truck shortly before the accident, Mr. Opfer admitted that he could not
“[w]ith this information” because the digital map that he was using as the
“background” for his locational analysis was saved in January 2019—shortly before
his deposition. Id. at 228; see id. (agreeing with Mr. Vincent’s counsel’s assertion
that “the background that shows us where the roads are and where the shovel and
other waypoints are is not from October 13, 2013”). Mr. Opfer stated that, because
the “[t]he digital mine model is updated in realtime” the model that he was using was
“the only background information that we can get.” Id.
However, after the start of trial but before he was scheduled to testify, Ms.
Nelson asked Mr. Opfer if he could “superimpose the MineStar GPS data [i.e., the
Gateway files data] onto the [Aerial Photo], and thereby pinpoint the location of the
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accident.” Id., Vol. 4, at 116. Mr. Opfer stated that he could and, together with the
Mine’s engineering department, produced an exhibit to that effect. At Ms. Nelson’s
suggestion, the district court held a hearing “to discuss the new exhibit [she] wished
to introduce through Mr. Opfer’s testimony.” Id. Mr. Vincent objected to the exhibit
on the grounds that it was unreliable and should have been disclosed when Mr. Opfer
was listed as an expert witness. The court sustained Mr. Vincent’s objection but
nevertheless ruled that Mr. Opfer would be permitted “[to] testify[] . . . and draw[] a
diagram . . . showing the jurors the East Pit . . . of Black Thunder Mine and placing
various items in that mine,” including the “shovel, the defense view of where th[e]
incident occurred, and the crusher and other objects; where these vehicles came to
rest eventually after they collided.” Id. (quoting Aplt.’s App., Vol. 11, at 6–7 (Trial
Tr. Vol. IX, dated Jan. 24, 2020)).
At trial, Mr. Opfer presented testimony regarding the MineStar system.
Consistent with the district court’s ruling, and over Mr. Vincent’s objection, he also
“described the work he did with the Engineering Department to transpose the
MineStar data on the [Aerial Photo], drew a diagram of the site and MineStar data,
and ultimately placed pins on the [Aerial Photo], mirroring the crosshair locations [of
the haul trucks] from the MineStar data.” Id. at 117.
5. The Motion to Compel
Several months before trial, Mr. Vincent had moved to compel Ms. Nelson “to
produce information regarding insurance coverage and the obligation of [Thunder
Basin Coal] to indemnify [her] by paying a portion of the verdict.” Id., Vol. 2, at 58
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(Pl.’s Mot. to Compel, filed Sept. 20, 2019). Mr. Vincent alleged that Arch Coal,
Thunder Basin Coal’s parent company, had $15,000,000 in insurance coverage, in
addition to a previously disclosed $5,000,000 policy covering occurrences of bodily
injury. Mr. Vincent alleged that Arch Coal would have to pay a sizeable deductible
under the undisclosed policy before the insurance company would indemnify Ms.
Nelson. Mr. Vincent maintained that discussing either Arch Coal or Thunder Basin
Coal’s financial interest was “relevant to the bias and credibility” of Ms. Nelson’s
designated experts, who were employed by Thunder Basin Coal or had just recently
retired. Id. at 62. In disagreeing, the district court concluded that “[t]o allow the
evidence requested by [Mr. Vincent] would be to risk confusing the jury on the
issues, potentially delaying the process, and causing the jury to decide the case on
considerations other than liability.” Id. at 128 (Dist. Ct. Order, filed Oct. 28, 2019).
B. The Jury’s Verdict & Post-Trial Briefing
After the jury found that Ms. Nelson “was not liable for [Mr. Vincent’s]
damages,” id., Vol. 4, at 117; see also id., Vol. 2, at 130 (Verdict Form, filed Jan. 27,
2020), Mr. Vincent filed a motion for a new trial, raising three arguments, see id.,
Vol. 3, at 20–29 (Pl.’s Mem. in Support of Mot. for New Trial, filed Feb. 26, 2020).
First, in light of the Aerial Photo and testimony at trial, he argued that Mr. Opfer had
been “[e]ffectively [t]ransformed” from a Rule 26(a)(2)(C) non-retained expert
witness to a Rule 26(a)(2)(B) retained expert witness. See id. at 20. Accordingly,
with respect to Mr. Opfer, Mr. Vincent maintained that Ms. Nelson was required to
provide a written report, but failed to do so. Relatedly, Mr. Vincent contended that
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the court wrongly permitted Mr. Opfer to testify beyond his designation. Second, as
Mr. Vincent reasoned, Mr. Opfer’s “[s]urprise [u]ndesignated [e]xpert [t]estimony”
violated Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980), the district court’s
pretrial order, Local Rules, and the Federal Rules of Civil Procedure. Aplt.’s App.,
Vol. 3, at 21–27. And third, Mr. Vincent argued that the court should have permitted
him to challenge the credibility and motives of witnesses based on the Mine’s
financial interest in the case.
In his reply brief in support of the new trial motion, Mr. Vincent attached the
affidavit of Benjamin Cotton, a GPS expert who had never testified or been identified
in the case, to challenge Mr. Opfer’s methodology and conclusions with respect to
the location of the crash. The district court struck Mr. Cotton’s affidavit from the
record.
Ultimately, the court denied Mr. Vincent’s motion for a new trial. Starting
first with Mr. Opfer’s testimony, the court rejected the premise of Mr. Vincent’s
motion: that Mr. Opfer’s testimony exceeded the bounds established by his
designation. As the court put it, Mr. Opfer’s testimony regarding the “application of
the MineStar data,” see id., Vol. 4, at 131, corresponded with his designation, which
provided that he had “experience and expertise regarding MineStar, . . . and its
application in connection to the accident,” id. at 115. Yet, even if Mr. Opfer had
exceeded his designation, the court distinguished Mr. Vincent’s case from our
decision in Smith, and, in any event, found that “the Smith factors” were “not
present.” Id. at 128.
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The district court likewise dismissed Mr. Vincent’s argument regarding the
preclusion of evidence concerning Thunder Basin Coal’s financial interest in the case
“for the same reasons described” in its previous rulings on Mr. Vincent’s Motion to
Compel. Id. at 129. In those rulings, the court excluded evidence relating to
Thunder Basin Coal’s financial interests because it was “not a party to this case,”
which was “about Ms. Nelson’s conduct during the incident.” Id., Vol. 2, at 128.
Allowing evidence about Thunder Basin Coal’s financial interests would “risk
confusing the jury on the issues, potentially delaying the process, and causing the
jury to decide the case on considerations other than liability.” Id. Finally, it struck
Mr. Cotton’s ill-timed affidavit, reasoning that if Mr. Vincent “wanted to rely on an
affidavit to challenge Ms. Nelson’s characterization or the accuracy of [the expert
testimony in question], . . . he should have done so in his initial motion [for a new
trial].” Id., Vol. 4, at 114.
Mr. Vincent timely appealed from the district court’s various evidentiary
rulings, order granting Ms. Nelson’s motion to strike, and order denying Mr.
Vincent’s motion for a new trial.
II. JURISDICTION
As an initial matter, we must address our jurisdiction to hear this appeal. We
previously issued a sua sponte order for Mr. Vincent to provide further information
that would be sufficient to confirm the existence of diversity of citizenship between
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the parties.5 We explained that Mr. Vincent’s Complaint stated that he was a resident
of Franklinton, Louisiana; however, that information did not suffice to establish
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See Siloam Springs Hotel,
L.L.C. v. Century Sur. Co.,
781 F.3d 1233, 1238 (10th Cir. 2015) (“An individual’s
residence is not equivalent to his domicile and it is domicile that is relevant for
determining citizenship.”). Accordingly, we requested that Mr. Vincent file a
response providing his state of citizenship at the time he commenced this litigation in
the District of Wyoming.
Here, Mr. Vincent filed his initial Complaint on October 31, 2016, and filed
his First Amended Complaint on July 7, 2017. Like his initial Complaint, Mr.
Vincent’s First Amended Complaint only spoke of his Louisiana residency, not his
citizenship. But Mr. Vincent’s response to our order confirms the existence of
diversity jurisdiction—both when he filed the initial Complaint and when he filed the
First Amended Complaint.6
5
Ms. Nelson is a citizen of Wyoming.
6
Though our sua sponte order that inquired regarding the existence of
subject-matter jurisdiction referred to Mr. Vincent’s initial Complaint, strictly
speaking, it is ordinarily the proper course to “look to the amended complaint to
determine jurisdiction.” Rockwell Int’l. Corp. v. United States, 549 U.S. 457, 473–74
(2007); see also United States ex rel. Little v. Triumph Gear Sys., Inc.,
870 F.3d
1242, 1252 (10th Cir. 2017) (“[T]he amended complaint—not the original
complaint—is the starting point for the jurisdictional determination.”); Parker v. WI
Waterson, LLC,
790 F. App’x 926, 929 (10th Cir. 2019) (unpublished) (looking to the
plaintiff-appellant’s first amended complaint to determine whether federal question
and diversity jurisdiction existed); 14AA Charles A. Wright & Arthur R. Miller,
FEDERAL PRACTICE & PROCEDURE § 3702.4, Westlaw (database updated Apr. 2022)
(“Courts look to the amended complaint to determine jurisdiction.”); cf. Rockwell
Int’l Corp.,
549 U.S. at 473 (noting that, as to the existence of subject-matter
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Specifically, by affidavit, Mr. Vincent asserts that on February 24, 2016, he
moved from Wyoming to Louisiana. He states that he has remained in Louisiana
since February 2016 and intends to reside in Louisiana permanently. Mr. Vincent
also attached an affidavit from Charlene Canada, who prepared a Preliminary
Rehabilitation Assessment and Valuation in connection with this litigation, stating
that Mr. Vincent moved from Wyoming to Louisiana prior to August 18, 2016.
Finally, Mr. Vincent attached excerpts from his April 2019 deposition testifying that
he is from Louisiana, that he moved to Wyoming for employment in 2011, and that
his doctor is in Louisiana.
Mr. Vincent’s response confirms that he was a citizen of Louisiana both when
he filed his initial Complaint and his First Amended Complaint: he resided in
Louisiana with the intent to remain there. See Siloam Springs, 781 F.3d at 1238;
Smith v. Cummings,
445 F.3d 1254, 1259–60 (10th Cir. 2006) (“To establish domicile
in a particular state, a person must be physically present in the state and intend to
remain there.”). Diversity jurisdiction therefore exists, and we may proceed to the
merits of Mr. Vincent’s appeal.
jurisdiction, “[t]he state of things and the originally alleged state of things are not
synonymous”). However, this proposition has no material impact on our resolution
of the jurisdictional inquiry here: as noted, the relevant jurisdictional averment was
not changed in the First Amended Complaint; when he filed both the initial
Complaint and the First Amended Complaint, Mr. Vincent was a citizen of Louisiana
and thus diversity jurisdiction existed under
28 U.S.C. § 1332(a).
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III. DISCUSSION
Having determined that we may exercise jurisdiction under § 1332(a), we turn
to the merits of Mr. Vincent’s appeal. Mr. Vincent contends that the district court
abused its discretion in three ways: first, in permitting the undesignated testimony of
Ms. Nelson’s three expert witnesses regarding the location of the crash relative to the
Aerial Photo; second, through various pretrial evidentiary rulings, holding that Mr.
Vincent could not engage in discovery regarding, or introduce evidence of, the
Mine’s financial interest in the case; and third, in striking the affidavit of Mr.
Vincent’s GPS expert, Mr. Cotton. We conclude that each of these arguments is
without merit.
A. Standard of Review
“We review a district court’s decisions on the admission or exclusion of
evidence, including expert testimony, for abuse of discretion.” Prager v. Campbell
Cnty. Mem’l Hosp., 731 F.3d 1046, 1054 (10th Cir. 2013). “A district court abuses
its discretion ‘when it renders an arbitrary, capricious, whimsical, or manifestly
unreasonable judgment.’” Ralston v. Smith & Nephew Richards, Inc.,
275 F.3d 965,
968 (10th Cir. 2001) (quoting Copier ex rel. Lindsey v. Smith & Wesson Corp.,
138
F.3d 833, 838 (10th Cir. 1998)). “The abuse-of-discretion standard is ‘one which we
have traditionally understood to mean that we will reverse a determination only if the
court exceeded the bounds of permissible choice, given the facts and the applicable
law in the case at hand.’” Prager,
731 F.3d at 1054 (quoting United States v.
McComb,
519 F.3d 1049, 1053 (10th Cir. 2007)). The considerable deference
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inherent in this standard stems from a recognition that “in many cases there will be a
range of possible outcomes the facts and law at issue can fairly support.” Prager,
731 F.3d at 1054. Consequently, “rather than pick and choose among them
ourselves, we will defer to the district court’s judgment so long as it falls within the
realm of these rationally available choices.”
Id.
Similarly, “[a] district court has broad discretion in deciding whether to grant a
motion for a new trial.” Harvey ex rel. Harvey v. Gen. Motors Corp., 873 F.2d 1343,
1346 (10th Cir. 1989). “A new trial is appropriate only where [a] claimed
[evidentiary] error substantially, and adversely, affects the rights of a party.”
Sanjuan v. IBP, Inc.,
160 F.3d 1291, 1297 (10th Cir. 1998).
B. The Experts’ Testimony
The crux of Mr. Vincent’s argument is that the district court erred by allowing
Ms. Nelson’s witnesses to provide testimony that used the Aerial Photo to illustrate
the accident’s location, supposedly without Ms. Nelson satisfying the applicable
expert-witness disclosure requirements. This allegedly improper admission, Mr.
Vincent maintains, was devastating to his case.
We are not persuaded for several reasons. First, Mr. McGinty’s and Mr.
Steele’s testimony pointing to the location of the accident on the Aerial Photo was
lay testimony based on personal experience and observation and thus not subject at
all to expert-witness disclosure requirements. Even if that was not so, however, we
would conclude that both men testified within the confines of their designations.
And, even if their testimony departed from their designations, the district court did
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not abuse its discretion in permitting the testimony under our decision in Smith v.
Ford Motor Co. The testimony from Mr. Opfer, likewise, fell within the scope of his
designation, and, in any event, we would be hard pressed to discern any abuse of
discretion under Smith in the court’s admission of it.
1. Mr. McGinty’s and Mr. Steele’s Testimony
a. Lay Opinion Testimony
As an initial matter, Mr. Vincent’s argument presupposes that the testimony at
issue was expert testimony rather than lay testimony. With respect to Mr. Steele and
Mr. McGinty, we disagree.
The Federal Rules of Evidence “distinguish between expert and lay testimony,
not between expert and lay witnesses.” United States v. Caballero, 277 F.3d 1235,
1247 (10th Cir. 2002) (emphasis added). Lay opinion testimony must be:
“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FED. R. EVID. 701(a)–(c). By contrast, “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if . . . the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue.” FED. R. EVID. 702. Because the key distinctions here relate to the nature
of the testimony, as opposed to the category of witnesses, “it is possible for the same
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witness to provide both lay and expert testimony in a single case.” FED. R. EVID. 701
advisory committee notes to 2000 amendment.
However, certain disclosure requirements attach to witnesses who intend to
deliver expert (as opposed to lay) testimony. Retained expert witnesses, or
employees “whose duties . . . regularly involve giving expert testimony,” must file
detailed written reports that include “(i) a complete statement of all opinions the
witness will express and the basis and reasons for them”; “(ii) the facts or data
considered by the witness in forming them”; “(iii) any exhibits that will be used to
summarize or support them”; (iv) the witness’s qualifications, publications, and
previous experience giving testimony; (v) a list of all other cases in which the
witness testified as an expert at trial or deposition in the previous four years; and
(vi) a statement of the compensation to be paid for the study and the testimony in the
case. FED. R. CIV. P. 26(a)(2)(B)(i)–(vi) (emphasis added). As we have explained,
Rule 26(a)’s retained-expert requirements are “necessary to allow the opposing party
‘a reasonable opportunity to prepare for effective cross examination and perhaps
arrange for expert testimony from other witnesses.’” Jacobsen v. Deseret Book Co.,
287 F.3d 936, 953 (10th Cir. 2002) (quoting FED. R. CIV. P. 26(a)(2) advisory
committee notes to 1993 amendment).
These “extensive” disclosure requirements, however, do not apply to non-
retained expert witnesses. FED. R. CIV. P. 26 advisory committee notes to 2010
amendment (“This [Rule 26(a)(2)(C)] disclosure is considerably less extensive than
the report required by Rule 26(a)(2)(B).”). Non-retained expert witnesses need only
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disclose “the subject matter on which [he or she] is expected to present evidence” and
“a summary of the facts and opinions to which [he or she] is expected to testify.”
FED. R. CIV. P. 26(a)(2)(C)(i)–(ii) (emphasis added).
And no disclosure provision applies to a designated expert witness’s lay
testimony. See, e.g., United States v. Kearn, 863 F.3d 1299, 1311–12 (10th Cir.
2017). In Kearn, for instance, we concluded that the testimony of two law
enforcement officers that certain images were child pornography was not expert
testimony because their observations “did not go beyond the realm of common
experience.”
Id. For that reason, we rejected the defendant’s argument that the
government circumvented Rule 26’s disclosure requirements through the officers’
testimony. See id.; cf. FED. R. EVID. 701 advisory committee notes to 2000
amendment (stating that Rule 701’s requirements “ensure[] that a party will not
evade the expert witness disclosure requirements set forth in FED. R. CIV. P. 26 . . .
by simply calling an expert witness in the guise of a layperson”).
We conclude, at the outset, that though designated as non-retained experts, Mr.
Steele and Mr. McGinty both provided lay testimony based on their personal
perceptions, as well as expert testimony based on their specialized knowledge of
mining operations. Notably, their testimony identifying the location of the accident
on the Aerial Photo—which Mr. Vincent objects to on appeal—fell squarely within
the first bucket (i.e., lay testimony).
Mr. Steele recounted factual details from his investigation at the accident
scene—not conclusions based on specialized or technical knowledge. Mr. Steele had
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considerable experience at the Mine when he testified that the “general layout of the .
. . [p]it . . . remained the same” “in the . . . 20 days between when [the Aerial Photo]
was taken and when th[e] accident occurred.” Aplt.’s App., Vol. 9, at 51. Relying
on that personal knowledge, Mr. Steele “generally describe[d]” the area by
identifying the crusher, shovel, and the “location that [he] went to” and “stepped off”
when measuring the width of the road. Id. at 54–56. Based on both his personal
experience and reports he received from colleagues, Mr. Steele pointed to the
accident’s “specific[] . . . location” on the Aerial Photo. Id. at 56. As such, his
testimony is properly characterized as lay testimony that is not subject to any of Rule
26’s expert-disclosure requirements.
That same conclusion applies to Mr. McGinty’s testimony. He arrived at the
scene of the accident in its immediate aftermath, witnessed the post-accident location
of the trucks, interviewed the drivers about what had transpired, and personally
stepped off the road to measure it. Using the Aerial Photo, Mr. McGinty identified
various fixed landmarks at the Mine on the date of the accident: “where the crusher
would have been,” “where the shovel would have been,” and “where [he] went to
visibly see Ava Nelson and Dale Vincent’s haul trucks.” Id. at 212. Ms. Nelson then
asked him to identify “the general area where the accident happened.” Id. at 213
(emphasis added). In response, Mr. McGinty identified the accident site on the
Aerial Photo. Whether characterized as fact testimony or lay opinion testimony, Mr.
McGinty’s identification of the accident site on the Aerial Photo stemmed from a
combination of “personal knowledge” acquired through firsthand perceptions and “a
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process of reasoning familiar in everyday life”—and, thus, was not the stuff of expert
testimony. FED. R. EVID. 701 advisory committee notes to 2000 amendment.
Accordingly, the district court did not abuse its discretion in overruling Mr.
Vincent’s objection. Far from “requir[ing] the special skill and knowledge of an
expert witness,” Mr. Steele’s and Mr. McGinty’s testimony that located the accident
on the Aerial Photo stayed well within “the realm of common experience”—
supported by personal observations, perceptions, and factual information gathered
during their respective investigations. James River Ins. Co. v. Rapid Funding, LLC,
658 F.3d 1207, 1214 (10th Cir. 2011) (quoting Randolph v. Collectramatic, Inc.,
590
F.2d 844, 846 (10th Cir. 1979)); cf. United States v. Cristerna-Gonzalez,
962 F.3d
1253, 1259 (10th Cir. 2020) (“[A] law-enforcement officer’s testimony based on
knowledge derived from the investigation of the case at hand is typically regarded as
lay testimony.”).
b. Rule 26(a)(2)(C)
That said, even if these two men were testifying as non-retained experts, both
Mr. Steele and Mr. McGinty testified within the confines of their designations. In
Mr. Vincent’s view, however, the district court erred in permitting Mr. McGinty and
Mr. Steele to use the Aerial Photo in their testimony because their disclosures failed
to contemplate any such use. See Aplt.’s Opening Br. at 35.7 According to Mr.
7
Mr. Vincent does not argue that Mr. McGinty’s and Mr. Steele’s overall
testimony regarding the location of the accident was undesignated or otherwise
improper.
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Vincent, Rule 26(a)(2)(C) required Ms. Nelson to “file a designation including . . .
the assertion that Mr. McGinty was going to stand up and try to confirm” Mr.
Steele’s identification of the accident site on the Aerial Photo. Id.
But, as we have indicated, Rule 26(a)(2)(C) is not so demanding. In offering
Mr. Steele and Mr. McGinty as non-retained experts, Ms. Nelson was required only
to put Mr. Vincent on notice as to the “subject matter on which [they were] expected
to present evidence” and to provide a “summary of the facts and opinions” to which
they would be expected to testify. FED. R. CIV. P. 26(a)(2)(C). A “summary” is
customarily defined as “[a]n abridgment” of a fuller accounting of material.
Summary, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, a Rule 26(a)(2)(C)
“disclosure is considerably less extensive than the report required by Rule
26(a)(2)(B).” FED. R. CIV. P. 26 advisory committee notes to 2010 amendment.
Indeed, the advisory notes caution against requiring “undue detail,” as witnesses
testifying under Rule 26(a)(2)(C) generally “have not been specially retained and
may not be as responsive to counsel as those who have.” Id.
And though only a few of our sister circuits appear to have encountered
challenges akin to Mr. Vincent’s—in published and unpublished8 decisions—they
seem largely to have faulted parties only when they have filed disclosures “so
8
We recognize that the unpublished decisions cited herein—even ones
that panels of our circuit have issued—are not controlling authority or otherwise
binding on us; however, we cite them as persuasive aids in resolving the material
issues before us. See, e.g., Bear Creek Trail, LLC v. BOKF, N.A., 35 F.4th 1277,
1282 n.8 (10th Cir. 2022); United States v. Engles,
779 F.3d 1161, 1162 n.1 (10th
Cir. 2015).
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generic, unhelpful, and boilerplate [that] they could apply to . . . virtually any case.”
Torrez v. D. Las Vegas, Inc., 773 F. App’x 950, 951 (9th Cir. 2019) (unpublished)
(omission in original) (quoting magistrate judge’s order); see Merchant v. Corizon
Health, Inc.,
993 F.3d 733, 738–39 (9th Cir. 2021) (concluding that a party did not
comply with Rule 26(a)(2)(C) where it “did not summarize the facts and opinions to
which [its] experts would testify as required by Rule 26(a)(2)(C)(ii)”); Cripe v.
Henkel Corp.,
858 F.3d 1110, 1113 (7th Cir. 2017) (ruling that witness designations
of non-retained experts failed to comply with Rule 26 where the party offered no
summary of facts and opinions); Goncharenko v. Royal Caribbean Cruises, Ltd.,
734
F. App’x 645, 646–47 (11th Cir. 2018) (unpublished) (per curiam) (concluding that
the district court did not abuse its discretion when striking appellant’s non-retained
expert witnesses where appellant’s “summary” merely stated that the witnesses
would testify that an accident caused appellant’s injuries). But see Amezcua v. Boon,
754 F. App’x 551, 553 (9th Cir. 2018) (unpublished) (concluding that appellants
violated Rule 26 when they “provided only a general overview of the topics upon
which each of their four non-retained expert witnesses would testify”).
With Rule 26’s provisions and committee notes in mind, and taking into
consideration the foregoing caselaw, we conclude that Mr. McGinty’s and Mr.
Steele’s trial designations contained sufficiently detailed “summar[ies] of the facts
and opinions to which [they] [were] expected to testify.” FED. R. CIV. P.
26(a)(2)(C)(ii). Mr. McGinty’s designation stated, in relevant part, that he would
“testify about his participation in the post-accident activities conducted by [Thunder
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Basin Coal]” and “the operations of the haul trucks in the area where the subject
accident occurred.” Aplt.’s App., Vol. 1, at 86. Significantly, Mr. McGinty’s
designation provided notice that he may “base any opinion on his education,
experience and training, and rely on any relevant documents, articles, and exhibits to
illustrate or support his testimony.” Id. Mr. Steele’s designation similarly stated that
he would testify as to Thunder Basin Coal’s “investigation into the accident” and
“about his participation in the . . . investigation of [the accident].”
Id. at 87.
Furthermore, his designation similarly advised that he may “rely on any relevant
documents, articles, and exhibits to illustrate or support his testimony.”
Id. Both
designations also provided that Mr. Steele and Mr. McGinty would testify consistent
with their deposition testimony. See
id. at 86–87.
True to their designations, Mr. Steele and Mr. McGinty testified at length at
trial on direct and cross examination about the investigation—including the location
of the crash. Both witnesses used the Aerial Photo—a relevant document and trial
exhibit that Mr. Vincent had in his possession for over a year before trial—to
illustrate their testimony about the location of the collision, as they perceived it from
their investigations. In short, their trial testimony, in our view, was clearly in line
with the summaries of their trial designations. Accordingly, we conclude that the
district court did not abuse its discretion in permitting Mr. McGinty and Mr. Steele to
use the Aerial Photo to support their testimony about the accident’s location.
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c. Smith v. Ford Motor Company
Though we neither determine that the objected-to testimony qualifies as expert
testimony, nor that it exceeds the scope of its designations even if it was expert
testimony, we nevertheless find it prudent to address Mr. Vincent’s final argument as
to these two witnesses: that the district court erred under our decision in Smith v.
Ford Motor Co., in allowing the admission of “testimony” purportedly not within the
scope of the witnesses’ designations. See Aplt.’s Opening Br. at 38. We conclude
that this argument is without merit.
Drawing on the prior related work of the Third Circuit, we specified in Smith
four factors “which should be considered in determining whether a district court has
abused its discretion in excluding, or in [the case of Smith] allowing, testimony not
specified in the pretrial order”:
(1) the prejudice or surprise in fact of the
[opposing] party . . ., (2) the ability of that
party to cure the prejudice, (3) the extent to
which waiver of the rule against calling
unlisted witnesses would disrupt the orderly
and efficient trial of the case or of other cases
in court, and (4) bad faith or willfulness in
failing to comply with the court’s order.
Smith, 626 F.2d at 797 (quoting Meyers v. Pennypack Woods Home Ownership
Ass’n.,
559 F.2d 894, 904–05 (3d Cir. 1977), abrogated on other grounds by
Goodman v. Lukens Steel Co.,
777 F.2d 113, 120 (3d Cir. 1985)).
Mr. Vincent deems Smith to be applicable here by analogy—where the
objected-to expert testimony ostensibly exceeded the bounds of the witnesses’
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designations. As to the prejudice component of the first factor, Mr. Vincent contends
that Mr. Steele’s and Mr. McGinty’s use of the Aerial Photo amounted to
undesignated testimony that prejudiced him; indeed, he goes so far as to claim that it
“devastat[ed]” his case. Aplt.’s Opening Br. at 39–40. However, we perceive any
prejudice to Mr. Vincent from the admission of this testimony to be limited, and the
court’s admission of it does not signal an abuse of discretion. First, the accident’s
location was principally relevant insofar as it spoke to the road’s width. As such, the
Aerial Photo supplemented—not supplanted—Mr. Steele and Mr. McGinty’s
otherwise unobjected-to testimony regarding the road’s width. Both witnesses
testified that the road’s width at the perceived accident site measured between 75 and
80 feet. Perhaps the Aerial Photo was “prejudicial”—but only in the sense that
“[v]irtually all relevant evidence is prejudicial.” United States v. Archuleta, 737 F.3d
1287, 1293 (10th Cir. 2013). Mr. Steele’s and Mr. McGinty’s first-hand testimony
about their road measurements—to which Mr. Vincent does not object—arguably
proved far more damaging to his case than the introduction of the Aerial Photo.
Indeed, it directly undermined his assertion that the road was patently too narrow for
Ms. Nelson to pass in her 27-foot-wide haul-truck.
And second, as the district court observed, “[t]he jury . . . still could have
found [that Ms. Nelson’s] actions did not meet th[e] [willful and wanton misconduct]
standard regardless of where the crash occurred.” Aplt.’s App., Vol. 4, at 132.
“While [Mr. Vincent’s] counsel portrayed the width and location as tantamount to a
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finding of willful and wanton misconduct, the jury was not required to accept that
argument and apply the facts to the standard in that way.” Id.
As for the surprise component of the first factor, Mr. Vincent cannot credibly
argue that Ms. Nelson’s attempt to use the Aerial Photo in support of Mr. Steele’s
and Mr. McGinty’s testimony “surprise[d]” him. Smith, 626 F.2d at 797. Ms. Nelson
disclosed the Aerial Photo to Mr. Vincent over a year before trial. Moreover, she put
him on notice that both Mr. Steele and Mr. McGinty might look to “relevant
documents . . . to illustrate or support” their testimony about “the area where the
subject accident occurred” and their “investigation into the accident.” Aplt.’s App.,
Vol. 1, at 86–87. Based on the foregoing, then, we can hardly say that the district
court abused its discretion in determining that Mr. Vincent had not shown prejudice
or surprise.
Moreover, the second and third Smith factors also weigh against Mr. Vincent.
He “could have attempted to cure [any] prejudice by deposing” Mr. Steele and Mr.
McGinty about the Aerial Photo outside the presence of the jury or “sought a
continuance from the district court” to better prepare for cross-examination. Wern v.
Davis, 99 F.3d 1151,
1996 WL 621991, at *7 (10th Cir. Oct. 28, 1996)
(unpublished); see MacCuish v. United States,
844 F.2d 733, 737 (10th Cir. 1988)
(“[W]hile [the appellant] objected to [the witness’s] testimony, she made no motion
for a continuance at that time nor does she demonstrate other efforts to cure any
alleged prejudice, although she could have made such efforts.”); cf. Marino v. Otis
Eng’g Corp.,
839 F.2d 1404, 1411 (10th Cir. 1988) (“Our cases show that when a
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party requests a new trial on the basis of surprise testimony it must be able to show
surprise, prejudice, and an attempt to cure the prejudice such as a motion for a
continuance.”). With respect to Mr. Steele’s and Mr. McGinty’s use of the Aerial
Photo, Mr. Vincent has no answer for his failure to request a continuance.
Nor did the admission of Mr. Steele’s and Mr. McGinty’s testimony regarding
the Aerial Photo cause any disruption to “the orderly and efficient trial of the case.”
Smith, 626 F.2d at 797; see also Prager,
731 F.3d at 1058 (finding that “[n]either the
district court’s ruling that allowed . . . [the] challenged testimony, the cross
examination . . ., nor the testimony of the rebuttal witness caused any disruption” to
the trial). And as to the final Smith factor, Mr. Vincent fails to furnish any evidence
of bad faith in the admission of the Aerial Photo, itself. See Smith,
626 F.2d at 797.
In sum, we conclude that, even treating the challenged testimony as expert
testimony outside the confines of Mr. Steele and Mr. McGinty’s designations, the
district court—contrary to Mr. Vincent’s suggestion—did not abuse its discretion
under the Smith framework in permitting the testimony to be admitted.
2. Mr. Opfer’s Testimony
We now turn to Mr. Opfer’s testimony. There can be no reasonable dispute
that Mr. Opfer delivered expert testimony based on specialized knowledge of the
MineStar system when he used MineStar-generated data to place the crash location
on the Aerial Photo.9 However, like Mr. Steele’s and Mr. McGinty’s testimony, Mr.
9
Ms. Nelson’s argument that Mr. Opfer’s testimony applying the
MineStar data to the Aerial Photo constituted lay testimony because GPS technology
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Opfer’s testimony fell within the confines of his designation. Moreover, in our view,
the district court did not abuse its discretion in determining that Mr. Opfer’s trial
testimony was not at odds with his deposition testimony. Further, because Mr.
Vincent was neither surprised nor prejudiced by Mr. Opfer’s testimony regarding the
location of the crash, we cannot conclude that the district court acted outside “the
bounds of permissible choice.” Prager, 731 F.3d at 1054 (quoting McComb,
519
F.3d at 1053).
a. Mr. Opfer’s Testimony Was Consistent With His Designation
Echoing his arguments regarding Mr. Steele’s and Mr. McGinty’s testimony,
Mr. Vincent contends that “[Mr.] Opfer was not designated to use [the] MineStar data
to place the trucks at a physical location.” Aplt.’s Opening Br. at 36. He likewise
maintains that Mr. Opfer “had been designated to testify that the 2019 ‘digital mine
model’ that was the basis of his testimony ‘is the only background information that
[Thunder Basin Coal] c[ould] get.’” Id. (quoting Aplt.’s App., Vol. 1, at 228).
Therefore, Mr. Vincent urges us to conclude that Ms. Nelson’s failure to disclose the
extent of Mr. Opfer’s testimony—related to the Aerial Photo—violated Rule
26(a)(2)(C), and that the district court therefore abused its discretion in admitting his
testimony.
is commonplace and because Mr. Opfer personally observed Thunder Basin Coal’s
engineering team transfer the MineStar GPS data onto the Aerial Photo is unavailing.
The record is clear that mapping MineStar data onto the Aerial Photo required the
Mine’s engineering department’s expertise. Therefore, Mr. Opfer’s opinion
testimony was based on “scientific, technical, or other specialized knowledge”
governed by Rule 702, not Rule 701. FED. R. EVID. 701(c).
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However, we agree with the district court that Mr. Opfer’s testimony fell
within the scope of his designation. Mr. Opfer’s disclosure stated that he had
“experience and expertise regarding MineStar, its operation and use, and its
application in connection to the accident giving rise to th[e] lawsuit.” Aplt.’s App.,
Vol. 1, at 85 (emphasis added). It further provided that “Mr. Opfer is expected to
testify as to his education, training, and experience related to [Thunder Basin Coal’s]
use of the MineStar system,” consistent with his deposition testimony. Id.
Consistent with that designation, Mr. Opfer offered testimony about
MineStar’s “application . . . to the accident”: he took the MineStar data and applied it
to a photograph of the location where Mr. Steele and Mr. McGinty testified the
accident occurred. Because the width of the road was at issue, the parties
“unavoidably” had to determine the accident’s location. Id., Vol. 4, at 130.
Mindful of the advisory committee’s admonition that courts “must take care
against requiring undue detail” in non-retained expert disclosures, FED. R. CIV. P. 26
advisory committee notes to 2010 amendment, and guided by our deferential standard
of review, we find no abuse of discretion in the district court’s conclusion that:
[a]lthough the specific details of the testimony
applying the MineStar data to the [Aerial Photo] were
not included in Mr. Opfer’s designation or
deposition, [Mr. Vincent] knew Mr. Opfer could
testify to the location of the haul trucks, as they
existed within the digital mine model. The fact that
[Ms. Nelson] took this a step further [by having Mr.
Opfer apply the MineStar data coordinates to the
Aerial Photo by memory] did not take the testimony
outside of the designation but fell within the
description of Mr. Opfer’s expertise regarding the
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Mine[S]tar data’s application in connection to the
crash.
Aplt.’s App., Vol. 4, at 130.
b. Mr. Opfer’s Testimony Did Not Contradict His Deposition Testimony
Nor are we persuaded, under our deferential abuse-of-discretion standard, that
the district court erred in finding that Mr. Opfer’s trial testimony did not contradict
his deposition testimony. Mr. Vincent specifically takes issue with Mr. Opfer’s
deposition statement that “[t]he digital mine model is updated in realtime and that is
the only background information that we can get.” Id., Vol. 1, at 228. He claims that
this statement was inconsistent with Mr. Opfer’s trial testimony, which used the
Aerial Photo as background information.
As we have detailed, supra, Mr. Opfer’s statement (highlighted by Mr.
Vincent) arose during an extended discussion of the MineStar system, as Mr.
Vincent’s counsel attempted to clarify whether the digital mine model that Mr. Opfer
was using to offer his opinions depicted the configuration and circumstances of the
Mine on the date that Mr. Opfer secured the model—i.e., January 19, 2019—or on
the date of the haul-truck accident, October 13, 2013. Mr. Opfer explained that,
because the digital mine model was constantly updating, the digital mine model that
captured the configuration and circumstances of the Mine on the accident date,
October 13, no longer existed and, because his opinions regarding the GPS data
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involved the use of a digital-mine-model background,10 the best he could do was to
use a version of the model captured around the time of the deposition (i.e., January
19).
Considering the broader context of Mr. Opfer’s statement, then, the district
court quite reasonably could determine that Mr. Opfer merely intended to convey that
the digital mine model he was using in his deposition was the only background
information that he could get from the MineStar system—given the ephemeral nature
of digital mine models—not that it was the only background information that he
could use in depicting the location of the accident. Therefore, there was no
contradiction between this deposition testimony of Mr. Opfer and his trial testimony,
which was predicated in part on background information that the Aerial Photo
supplied—that is, background information from a source other than the MineStar
system.11 Cf. Aplt.’s App., Vol. 4, at 132 (“Applying the location data to a
10
Recall that Mr. Opfer used in his testimony Gateway files containing
“factual” GPS data from the date of the accident, Aplt.’s App., Vol. 1, at 228, and
these files presented the data in part with reference to waypoints incorporated into the
digital mine model, see id. at 222.
11
In a brief footnote, Mr. Vincent states that “[i]n asking Opfer to do work
specifically for the case, Defendant also transformed him into a witness ‘retained or
specially employed to provide expert testimony in the case,’ requiring a report under
Rule 26(a)(2)(B).” Aplt.’s Opening Br. at 37 n. 32. Mr. Vincent provides no
additional reasoning or legal authority for this contention, and we therefore decline to
consider it on appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)
(“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”); United States v.
Rodriguez-Aguirre,
108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (“[I]t is the appellant’s
responsibility to tie the salient facts, supported by specific record citation, to [his]
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compatible aerial photograph does not mean Mr. Opfer’s deposition was misleading;
it means that he was simply not asked a question about applying the data to
background outside the [MineStar] System.”).
c. The District Court Did Not Abuse Its Discretion Under Smith
Mr. Vincent urges us to find that the admission of Mr. Opfer’s testimony
applying the MineStar data to the Aerial Photo failed to satisfy the requirements that
we set forth in Smith. But even assuming that Mr. Opfer’s testimony exceeded his
designation, we discern no abuse of discretion by the district court under Smith.
More specifically, Mr. Vincent has not shown that Mr. Opfer’s testimony ran afoul of
the first Smith factor by surprising or prejudicing him.
The district court limited its analysis to the first Smith factor, focusing
primarily on whether Mr. Opfer’s use of the Aerial Photo prejudiced Mr. Vincent; the
court concluded that it did not. We similarly confine our analysis to the first Smith
factor.
We are unconvinced that Mr. Opfer’s testimony was prejudicial in any
meaningful sense to Mr. Vincent. First of all, though counsel’s discovery of Mr.
Opfer’s ability to superimpose the MineStar GPS data onto the Aerial Photo occurred
mid-trial, the district court specifically took measures to minimize any prejudice by
holding a hearing outside the presence of the jury regarding the proposed evidence.
Cf. Smith, 629 F.2d at 798–99 (finding prejudice where defendant was granted only a
legal contentions.” (second alteration in original) (quoting Schaede v. Boeing Co., 72
F.3d 138,
1995 WL 736464, at *1 (10th Cir. Dec. 13, 1995) (unpublished))).
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ten-minute recess to prepare cross-examination regarding the expert’s undisclosed
causation testimony). In that hearing, Mr. Vincent was given the opportunity to
cross-examine Mr. Opfer, and did so at length—challenging the reliability and
accuracy of superimposing the MineStar GPS data onto the Aerial Photo at trial.
Furthermore, while Mr. Opfer’s testimony did concern the important issue of
the accident’s location—as the district court rightly noted—this case was
distinguishable from Smith on the issue of prejudice because the expert there
provided the only testimony on the key issue (i.e., causation), whereas here “the jury
weighed testimony and argument from many sources” on the location issue. Aplt.’s
App., Vol. 4, at 132–33 (relying on our discussion of Smith in Greenwood v.
McDonough Power Equip., Inc., 731 F.2d 690, 697 (10th Cir. 1984)). More
specifically, other witnesses offered persuasive and consistent testimony regarding
the location of the accident and, relatedly, the width of the road at the site of the
accident—most notably, Mr. Steele and Mr. McGinty, who measured the road by
stepping it off in the minutes and hours immediately following the accident (Mr.
McGinty while the trucks were still in their post-accident resting locations).
Consequently, insofar as we assume that Mr. Opfer’s Aerial Photo testimony
exceeded the scope of his designated testimony, its prejudicial potential was limited
because there was ample other evidence concerning the same or similar subject
matter that the court admitted into evidence without objection by Mr. Vincent.
Unlike Smith, then, Mr. Opfer’s testimony was not the only testimony bearing on the
important issue of location.
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Moreover, it is notable that both sides claimed that Mr. Opfer’s testimony
supported their theory regarding the location of the crash. See Aplt.’s App., Vol. 11,
at 129 (Trial Tr. Vol. X, Pl.’s Closing Arg., dated Jan. 27, 2020) (Mr. Vincent’s
counsel arguing in closing that Mr. Opfer’s testimony “conclusively located” the site
of the crash “in the narrows”); id. at 148 (Trial Tr. Vol. X, Def.’s Closing Arg., dated
Jan. 27, 2020) (Ms. Nelson’s counsel arguing in closing that Mr. Opfer’s testimony
“conclusively resolved” the accident’s location). This serves to undercut any claim
of prejudice. Cf. Moss v. Feldmeyer, 979 F.2d 1454, 1461 (10th Cir. 1992)
(“[Appellant], having relied on [the] autopsy to support her argument . . . cannot now
challenge . . . testimony predicated on . . . the autopsy on which she relied.”).
On the issue of surprise, Mr. Opfer’s challenged testimony did not cite any
new data or factual material, much less new subject matter; he simply “put [two]
pieces” of admissible evidence together, which were available to both parties.
Aplt.’s App., Vol. 4, at 133. Importantly, the facts and data underlying his
testimony—the Aerial Photo and the MineStar data—were disclosed more than a year
before trial, and Ms. Nelson disclosed Mr. Opfer as a non-retained expert witness six
months before trial. We agree with the district court: “Plaintiff’s counsel could have
requested Mr. Opfer to” apply the MineStar data to the Aerial Photo or,
“[a]lternatively, because they had access to this information for an ample time before
trial, they could have taken independent initiative to further understand and apply the
MineStar data.” Id. at 132. They did neither.
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To be sure, we do not require that a party anticipate—and forestall—all
possible ways an expert could apply facts and data. But under these specific
circumstances—where the testimony at issue was both predictable and challenged at
a full hearing before being presented at trial—Mr. Vincent’s claim of surprise rings
hollow. Cf. Perry v. Winspur, 782 F.2d 893, 895 (10th Cir. 1986) (noting that expert
witness disclosures “should be construed liberally to embrace topics inherent in the
expected testimony described therein”); cf. also Stone v. First Wyo. Bank,
625 F.2d
332, 348 (10th Cir. 1978) (noting that the “pretrial order ‘should be liberally
construed to embrace all of the legal and factual theories inherent in the issues
defined therein’” (quoting Century Refin. Co. v. Hall,
316 F.2d 15, 20 (10th Cir.
1963))).
Thus, under the specific facts and circumstances of this case, we are not
persuaded that Mr. Vincent was so surprised or prejudiced by the inclusion of Mr.
Opfer’s Aerial Photo testimony as to place the district court’s decision outside “the
realm of . . . rationally available choices.” Prager, 731 F.3d at 1056 (quoting
McComb,
519 F.3d at 1053). And, importantly, in the absence of prejudice or
surprise, challenged testimony “does not run afoul of Smith’s directive,” and there is
no abuse of discretion. Prager,
731 F.3d at 1056; see also Greenwood,
731 F.2d at
697 (concluding that Smith does not apply where “there has been a failure to establish
that [the challenged] testimony was prejudicial”). Thus, we cannot conclude that the
district court rendered an “arbitrary, capricious, whimsical, or manifestly
unreasonable judgment,” Ralston,
275 F.3d at 968, in determining that Mr. Vincent
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failed to show surprise or prejudice—defeating his challenge under Smith to Mr.
Opfer’s use of the Aerial Photo.
C. The District Court Did Not Abuse Its Discretion In Denying The Motion
To Compel
Mr. Vincent next contends that the district court erred in various pretrial
rulings holding “that [Mr. Vincent] could not fully discover, introduce evidence of,
or impeach regarding the Mine’s financial interest” in the case. Aplt.’s Opening Br.
at 50. Reviewing for abuse of discretion, we reject this argument.
In denying Mr. Vincent’s motion to compel, the district court concluded that
the risk of confusion to the jury outweighed any probative value of the indemnity
agreement Mr. Vincent sought to introduce. Specifically, the court reasoned that
because this was a liability case in which the core issue was Ms. Nelson’s conduct—
not the Mine’s “involvement” or “tangential interest” as a non-party—“to allow the
evidence requested by Plaintiff [i.e., Mr. Vincent] would be to risk confusing the jury
on the issues, potentially delaying the process, and causing the jury to decide the case
on considerations other than liability.” Aplt.’s App., Vol. 2, at 128. Further, the
court reasoned that, because Ms. Nelson did not intend to claim impecunity or limited
means to pay a judgment—which the court would not have permitted in any event—
the evidence was not relevant for the purpose of rebutting that defense. See id. at
124–25.
In challenging the district court’s decision, Mr. Vincent underscores his belief
that the court wrongly precluded him from exposing the potential bias or motive of
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former and current Mine employees that testified. But he neither identifies any
caselaw supporting the idea that the district court’s decision constituted an abuse of
discretion, nor engages with the court’s reasoning that admitting the indemnity
agreement would confuse the jury.12 See Aplt.’s Opening Br. at 50–51. We therefore
would be within the bounds of our own discretion not to consider this challenge
further. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015)
(“The first task of an appellant is to explain to us why the district court’s decision
was wrong.”); Reedy v. Werholtz,
660 F.3d 1270, 1275 (10th Cir. 2011) (“The
argument section of Plaintiffs’ opening brief does not challenge the court’s reasoning
on this point. We therefore do not address the matter.”); see also United States v.
Hardwell,
80 F.3d 1471, 1492 (10th Cir. 1996) (ruling that a litigant “waived this
issue by failing to make any argument or cite any authority to support his assertion”).
Regardless, we discern no abuse of discretion in the district court’s reasoning.
“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, [and] undue delay.” FED. R. EVID. 403. And a decision to exclude evidence
12
Mr. Vincent does cite Jury Instruction No. 35, which instructed the jury
to “carefully scrutinize all testimony given,” including considering “each witness’s
. . . motive and state of mind.” Aplt.’s Opening Br. at 51 (citing Aplt.’s App., Vol. 2,
at 174). But the question before us—the discoverability and admissibility of
evidence—is an entirely distinct, antecedent inquiry from how the jury should assess
the evidence that is ultimately discovered and admitted. Moreover, Mr. Vincent’s
suggestion that evidence relevant to the jury’s deliberation must be admitted
disregards the court’s fundamental obligation to weigh the probative value of
evidence against potential prejudice. See FED. R. EVID. 403.
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under Rule 403 will not be reversed absent a clear abuse of discretion. See, e.g.,
Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1526 (10th Cir. 1997);
see also Monfore v. Phillips,
778 F.3d 849, 854 (10th Cir. 2015) (noting that the
district court’s discretion in evidentiary rulings under Rule 403 is “particularly” wide
(quoting Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379, 384 (2008))).
Further, evidence regarding insurance coverage “is not admissible to prove whether
the person acted negligently or otherwise wrongfully.” FED. R. EVID. 411. While it
is true that such evidence may be admitted for other purposes, including proving a
witness’s bias or prejudice, see
id., it must be regarded with particular caution, see
Burke v. Regalado,
935 F.3d 960, 1021 (10th Cir. 2019) (observing that Rule 411
“has its basis in the belief that [insurance] evidence is of questionable probative
value or relevance and is often prejudicial,” as well as “the feeling that knowledge of
the presence or absence of liability insurance would induce juries to decide cases on
improper grounds” (first quoting Charter v. Chleborad,
551 F.2d 246, 248 (8th Cir.
1977), and then quoting FED. R. EVID. 411 advisory committee notes to 1972
proposed rules)), and its probative value must be weighed against potential prejudice,
see Palmer v. Krueger,
897 F.2d 1529, 1538 (10th Cir. 1990).
Here, the district court cited the correct legal standard before weighing the
probative value of the evidence against the risk of confusing the issues, misleading
the jury, or unduly delaying the proceedings, and concluded that “even if the
evidence bears some relevance to the issues argued by Plaintiff [i.e., Mr. Vincent],
the value of the evidence for those purposes is outweighed by the prejudice it would
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cause.” Aplt.’s App., Vol. 2, at 127. This analysis and ruling are well within the
permissible scope of the court’s discretion.
D. The District Court Did Not Err In Striking The Cotton Affidavit
Finally, we reject Mr. Vincent’s argument that the district court erred in
striking an affidavit by Mr. Cotton. In Mr. Vincent’s reply brief in support of his
motion for a new trial, he attached the affidavit of Mr. Cotton (the “Cotton Affidavit”
or “Affidavit”), a retired Special Forces Officer “with experience in plotting GPS
coordinates onto real world locations.” Aplt.’s Opening Br. at 48. Mr. Cotton had
not previously testified or been identified in the case. The Affidavit stated that the
MineStar location coordinates were not “standard” GPS coordinates and required
expertise “beyond the average commercial GPS user’s ability and resources.” Aplt.’s
App., Vol. 4, at 85–86. Importantly, it also stated that “data provided by Defendant
[i.e., Ms. Nelson] did not contain sufficient information” to plot the MineStar
location coordinates “on overhead imagery,” and it challenged the accuracy of Mr.
Opfer’s opinion as to the location of the crash. Id. at 87–88.
The district court struck the Affidavit from the record. See id. at 113–14. In
issuing its ruling, the district court said that Ms. Nelson’s arguments seeking to
transpose the MineStar data onto the Aerial Photo should have come as “no surprise”
to Mr. Vincent; accordingly, he should have presented in his motion many of the
arguments that he subsequently raised in the reply brief and in the Affidavit. Id. at
114. In short, the court reasoned that, if Mr. Vincent “wanted to rely on an affidavit
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to challenge Ms. Nelson’s characterization or the accuracy of [the expert testimony in
question], . . . he should have done so in his initial motion.” Id.
Mr. Vincent now contends that because neither Wyoming’s Local Rules nor
the Federal Rules of Civil Procedure prohibit the submission of affidavits with reply
briefs, the district court erred in striking the Cotton Affidavit. Further, he urges that
the district court applied an erroneous standard in striking the Affidavit based on its
conclusion that Mr. Vincent could have and should have filed it with his initial
motion for a new trial.
However, Mr. Vincent’s arguments misapprehend the relevant Federal Rule, as
well as the breadth of the district court’s discretion. Federal Rule of Civil Procedure
59(c) provides that “[w]hen a motion for a new trial is based on affidavits, they must
be filed with the motion.” FED. R. CIV. P. 59(c) (emphasis added). That requirement
is squarely implicated here. The Cotton Affidavit challenged the reliability of Mr.
Opfer’s testimony and its underlying methodology—arguments that presented
ostensible bases for a new trial and had been discussed at length by the parties. The
district court did not err in declining to consider the Cotton Affidavit’s contentions
because Mr. Vincent was obliged to present the Affidavit in connection with his
initial motion.
To be sure, Rule 59(c) also provides that the “court may permit reply
affidavits.” Id. (emphasis added). But “may” does not mean “must.” Indeed, the
Supreme Court “has ‘repeatedly observed’ that ‘the word ‘may’ clearly connotes
discretion.’” Biden v. Texas, --- U.S. ----, 142 S. Ct. 2528, 2541 (2022) (quoting
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Opati v. Republic of Sudan, --- U.S. ----, 140 S. Ct. 1601, 1609 (2020)); see United
States v. Bowden,
182 F.2d 251, 252 (10th Cir. 1950) (“The use of the word ‘may’ in
a statute will be construed as permissive and to vest discretionary power . . . .”).
Thus, while Rule 59(c) does not categorically prohibit the filing of affidavits with
reply briefs, the district court here was not stripped of its discretion to determine that
the Cotton Affidavit came too late and thus should not be considered. And, in our
view, the court did not abuse its discretion in reaching the conclusion that the
Affidavit came too late. For similar reasons, we reject Mr. Vincent’s argument under
Wyoming Local Rule 7.1(b)(2)(c) because that rule, like the federal rule, neither
requires nor disallows affidavits in support of a reply brief; therefore, the rule leaves
decisions regarding the allowance of affidavits in such circumstances to the
discretion of the district court, which it did not abuse here. 13
Moreover, we have routinely declined to find an abuse of discretion where, in
similar circumstances, district courts have determined that affidavits should have
been presented with earlier briefing. Cf. Bryson v. City of Okla. City, 627 F.3d 784,
788 (10th Cir. 2010) (finding no abuse of discretion where the district court declined
to consider two affidavits submitted with a motion to reconsider that could have been
presented in prior briefing); Price v. Philpot,
420 F.3d 1158, 1167–68 (10th Cir.
13
We note that Mr. Vincent failed to raise any argument with respect to
Wyoming Local Rule 7.1(b)(2)(c) before the district court, and he does not argue
under the plain-error rubric on appeal. Therefore, we are free to deem this argument
to be effectively waived. See, e.g., Havens v. Colo. Dep’t of Corr., 897 F.3d 1250,
1259–60 (10th Cir. 2018). In any event, as we note, the argument fails on the merits.
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2005) (noting that “a [district] court may, in its discretion, elect not to consider a
delayed affidavit” and finding no abuse of discretion in the district court’s refusal to
consider evidence that was first filed as an attachment to the plaintiff’s motion to
reconsider); cf. also Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 n.3 (10th Cir.
1998) (declining to consider affidavits filed in connection with a FED. R. CIV. P.
60(b) motion because movant failed to allege that she could not obtain the affidavits
prior to entry of summary judgment).
Nor does any ostensible relevance of the Cotton Affidavit alter our analysis. A
district court may exercise its discretion to exclude otherwise relevant evidence based
on timeliness, redundancy, and other equitable considerations. See, e.g., Essence,
Inc. v. City of Fed. Heights, 285 F.3d 1272, 1288–89 (10th Cir. 2010) (holding that
the “district court’s exclusion of [a] late affidavit” that a party sought to use to
supplement its reply brief was not “a clear error of judgment” warranting reversal);
Hook v. Regents of Univ. of Cal.,
394 F. App’x 522, 532 (10th Cir. 2010)
(unpublished) (concluding that “it was not an abuse of discretion for the district court
to exclude” an affidavit, notwithstanding its relevance).
The district court expressly considered Mr. Vincent’s argument that it may
permit an affidavit attached to a reply brief and that it should do so because of the
alleged misrepresentations made in Ms. Nelson’s response to the new trial motion. In
an exercise of its discretion, however, the court declined to consider the Cotton
Affidavit. We cannot say that the court abused its discretion in doing so; its decision
did not exceed the permissible bounds of its discretion.
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IV. CONCLUSION
Accordingly, for the foregoing reasons, we AFFIRM the district court’s
judgment.
48
