F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JAN 24 2001
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 PAMELA ANNE LAUCK and JOHN
 DAVID LAUCK,

          Plaintiffs-Appellants-Cross-
          Appellees,
 v.
                                                     Nos. 99-1285 and 99-1309
 MICHAEL P. COSBY, D.D.S., M.D.,                       (D.C. No. 96-S-2660)
 individually; COSBY & JAMES, P.C.,                         (Colorado)
 a professional corporation and
 successors in interest,

          Defendants-Appellees-Cross-
          Appellants.




                            ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, McWILLIAMS, Circuit Judge, and
JENKINS **, District Judge.



      On February 3, 1997, Pamela Anne Lauck and her husband, John David



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
      **
         Honorable Bruce S. Jenkins, Senior District Judge, United States District Court
for the District of Utah, sitting by designation.
Lauck, filed an amended complaint in the United States District Court for the

District of Colorado, naming as defendants Michael P. Cosby, D.D.S., M.D.,

individually, and Cosby & James, P.C., a professional corporation. Jurisdiction

was based on diversity of citizenship, the plaintiffs then being citizens of Arizona

and the defendants being citizens of Colorado. 28 U.S.C. § 1332. In their

amended complaint plaintiffs alleged that on or about October 1, 1985, Dr. Cosby

performed upon Pamela Lauck in Denver, Colorado, a bilateral

temporomandibular joint proplast implant reconstruction utilizing Vitek implants.

The gist of the complaint was that subsequent to the implantation procedure, Dr.

Cosby, starting in about 1991, received various and sundry notices and warnings

relating to the dangers of Vitek proplast implants, and that Dr. Cosby “made no

reasonable effort to contact the plaintiffs to warn them of the associated dangers

except, according to the defendants, to send a form letter, dated January, 1991,

which the defendants claim was sent by Certified Mail, but was returned without

delivery.” (Plaintiffs moved from Denver, Colorado, to New Jersey in 1989, and

later moved to Arizona.) The plaintiffs went on to allege that, as a result of the

defendants’ failure to take reasonable steps to warn them of the dangers of the

procedure, they suffered damages. In due time the defendants filed an answer to

the amended complaint.

      The case was tried to a jury of twelve persons from March 15 to 19, 1999.


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On March 19, 1999, the jury returned its verdict. By special verdict the jury

found that the plaintiffs had incurred injuries, but that the defendants were not

negligent, and, alternatively, if the defendants were in any way guilty of

negligence such was not the cause of plaintiff’s injuries. Judgment was duly

entered on the jury’s verdict and plaintiffs appeal.

      Because of the nature of plaintiffs’ argument on appeal, the evidentiary

facts adduced at trial need not be set forth in any detail. As indicated, the crucial

issue in the case was whether defendants took reasonable steps to promptly warn

plaintiffs of their after acquired knowledge of dangers in the Vitek procedure. In

this appeal, the plaintiffs do not, for example, challenge the sufficiency of the

evidence to support the jury’s verdict. Rather, on appeal they only challenge the

giving, over objection, of instruction No. 14 on the “failure to mitigate damages”

and the refusal of the district court to give their tendered instruction on “duty to

warn.” This is not a malpractice case. Rather, the plaintiffs rely on so-called

common law negligence.

      In a diversity case, the substance of a jury instruction is a matter of state

law, but the grant or denial of a tendered instruction is governed by federal law.

Wolfgang v. Mid-America Motorsports, Inc., 

, 1525 (10th Cir.

1997). The admission or exclusion of a particular jury instruction is within the

sound discretion of the trial court. City of Wichita v. United States Gypsum Co.,


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, 1495 (10th Cir. 1996).

      Over objection, the district court gave the following instruction on failure

to mitigate damages:

                   If you find that the Plaintiff, Pamela A. Lauck,
            has incurred actual damages, then you must consider
            whether the Defendants, Michael P. Cosby, D.D.S.,
            M.D. and Cosby & James, P.C., has proved their
            affirmative defense of Plaintiff’s failure to mitigate or
            minimize damages. The Plaintiff has the duty to take
            reasonable steps under the circumstances to mitigate or
            minimize her damages. Damages, if any, caused by
            Plaintiff’s failure to take such reasonable steps cannot
            be awarded to the Plaintiff.

                   This affirmative defense is proved if you find both
            of the following have been proven by a preponderance
            of the evidence:

                  1. Pamela A. Lauck failed to follow the advice of
            Dr. Keiser and specifically failed to obtain the x-rays
            he requested and/or Pamela A. Lauck failed to call
            Dr. Cosby when she began to experience pain in
            her temporomandibular joints.

                   2. Such failures caused the Plaintiff to incur more
            injuries, damages and losses than she
            otherwise would have; and

                  3. The amount of damages caused by such failure.

                   If you find that any one or more of these
            propositions has not been proved by a preponderance of
            the evidence, then you shall make no deduction from
            Plaintiff’s damages.
                   On the other hand, if you find that both of these
            propositions have been proved by a preponderance of the
            evidence, then you must determine the amount of

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             damages caused by the Plaintiff’s failure to take such
             reasonable steps. This amount must not be included in
             your award of damages.

      Plaintiffs argue that the evidence did not support the giving of the

instruction, and they particularly complain about the language in the instruction to

the effect that defendants’ affirmative defense is proven if Pamela Lauck failed to

follow the advice of a Dr. Keiser and if she failed to call Dr. Cosby. Defendants

argue that the evidence did support the giving of the instruction, and that in any

event the instruction related to mitigation of damages which otherwise might be

awarded plaintiffs, and that the jury never reached the question of damages, since

the jury returned a verdict that the defendants were not negligent in their efforts

to try and warn the plaintiffs and were not otherwise liable to the plaintiffs in any

amount. We agree with this latter argument. The instruction by its very terms

related to the amount of damages issue, which issue the jury never reached

because of its finding that the defendants were not negligent.

      Plaintiff tendered the following instruction concerning the “duty to warn:”

                   The defendants owed a duty to the plaintiffs to
             warn the plaintiffs of the potential dangerous nature of
             the implants and of the FDA warnings about such
             implants when subsequent to the insertion for the
             implants, the defendants obtained actual knowledge of
             the hazards related to the implants.

      The district court declined to accept the tendered instruction, and, on

appeal, plaintiffs contend such denial constitutes reversible error. We do not

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agree. Counsel for defendants concedes that the defendants had a duty to attempt

to warn plaintiffs of the after-the-operation acquired knowledge as to the danger

inherent in the procedure, and their defense was that they did take reasonable

steps to notify the plaintiffs but were simply unsuccessful in the efforts to locate

plaintiffs, who by that time were residing in New Jersey. The tendered

instruction, if taken literally, seems to mean that the defendants had an absolute

duty to warn, no matter what, and that a reasonable attempt to warn was no

defense. That is not the way the plaintiffs couched their action. As stated, this is

not a malpractice action in which the plaintiffs claim that Dr. Cosby, as of the

date of the implant procedure, knew of the dangers inherent in the procedure and

failed to warn plaintiffs. Dr. Cosby’s awareness of such dangers came several

years later.

       In instruction No. 2, the plaintiffs’ theory of the case was set forth as

follows:

                      Plaintiff Pamela A. Lauck claims that Dr. Cosby,
               and Cosby & James, P.C., were negligent in failing to
               take
                reasonable steps to locate her and warn her about the
               Vitek Proplast Temporomandibular Joint implants placed
               by Dr. Cosby on October 1, 1985. Plaintiff claims that
               the negligence of Dr. Cosby, and Cosby & James, P.C.,
               caused her pain and suffering, inconvenience, emotional
               stress, impairment of the quality of life, physical
               impairment and disfigurement, past and future medical
               and other health care expenses and past lost earnings.
               (emphasis ours).

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      In denying plaintiffs’ post trial motion for a new trial, the district court

explained its reasons for denying plaintiffs’ tendered instruction on duty to warn

as follows:

                     Under those circumstances, the Court does not
              find the case law cited by Plaintiff persuasive. Where
              Plaintiff brought her claim as a common law negligence
              cause of action, the Court finds that it would have been
              inappropriate to instruct the jury on a duty that is
              generally considered to arise from a professional
              standard of care. Plaintiffs chose not to present the case
              as a medical malpractice case depending on an expert’s
              testimony of standard of care. In addition, as stated
              during trial, the Court believes that giving the requested
              instruction would have been tantamount to directing a
              verdict for the Plaintiffs in that it was undisputed that
              Defendants had not reached Plaintiff Pamela Lauck to
              inform her of the need to have the implants removed.

      In our view, the district court, under the circumstances, did not err in

refusing to instruct the jury on the so-called “duty to warn.” Plaintiffs did not

plead, or attempt to prove, that as of the date of the implant procedure, Dr. Cosby

knew of any danger inherent in the procedure and failed to warn plaintiffs of the

danger involved. Rather, plaintiffs’ theory was that several years after the

procedure, Dr. Cosby became aware of the danger inherent in the Vitek

procedure, and that he thereafter failed to take reasonable steps to so advise the

plaintiffs. That is the way the case was presented to the jury.

      By what they label as a conditional cross-appeal, defendants appeal the



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district court’s ruling wherein it excluded defendants’ proffered expert testimony

concerning the reasonableness of their efforts to notify plaintiffs, and others,

about the potential problems with the Vitek procedure. No. 99-1309. The

defendants agree that if we affirm the judgment of the district court, as we do,

their cross-appeal is moot. Accordingly, the judgment is affirmed and the cross-

appeal is dismissed as being moot.



                                               Entered for the Court,

                                               Robert H. McWilliams
                                               Senior Circuit Judge




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