Filed: Nov. 30, 2016
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 30, 2016 _ Elisabeth A. Shumaker Clerk of Court LINDA GRIFFETH; DARIN GRIFFETH, Plaintiffs - Appellants, v. No. 15-4112 (D.C. No. 1:13-CV-00019-TC) UNITED STATES OF AMERICA, (D. Utah) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. _ Linda Griffeth and her husband Darin Griffeth sued the United States for negligence after she suffered
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 30, 2016 _ Elisabeth A. Shumaker Clerk of Court LINDA GRIFFETH; DARIN GRIFFETH, Plaintiffs - Appellants, v. No. 15-4112 (D.C. No. 1:13-CV-00019-TC) UNITED STATES OF AMERICA, (D. Utah) Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. _ Linda Griffeth and her husband Darin Griffeth sued the United States for negligence after she suffered ..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LINDA GRIFFETH; DARIN GRIFFETH,
Plaintiffs - Appellants,
v. No. 15-4112
(D.C. No. 1:13-CV-00019-TC)
UNITED STATES OF AMERICA, (D. Utah)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Linda Griffeth and her husband Darin Griffeth sued the United States for
negligence after she suffered serious injuries when her motorcycle struck the bucket of a
front-end loader operated by a United States Forest Service employee. After a bench trial,
the district court ruled that the Griffeths had failed to prove negligence. On appeal, the
Griffeths complain that the district court erred in its rulings on several pretrial and
evidentiary motions and in holding that they had failed to prove negligence by Forest
Service employees. Because the district court properly exercised its discretion, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
On September 16, 2010, Linda and Darin Griffeth and a friend, Scott Olsen, were
riding motorcycles on a back-country road in the Uinta-Wasatch-Cache National Forest
in Utah. As the three rode—Darin first, Linda next, and Olsen last—they approached a
curve. Coming from the opposite direction was an 8.6-foot wide front-end loader1 driven
by James Roberson, an employee of the United States Forest Service (Forest Service).
Although Darin safely passed the loader, Linda did not—her motorcycle and left knee
struck the left edge of the loader’s bucket (wedging the gas cover into the bucket). Linda
was thrown from her motorcycle and suffered a highly comminuted distal fracture to her
left leg.
On May 24, 2012, the Griffeths filed an administrative claim under 28 U.S.C.
§ 2675(a), alleging negligence by Roberson. Because their “basis of claim” is important
in this appeal, we quote its full language here:
Claimant was driving a recreational vehicle north on a back country road in
Cache County, Utah when she encountered a large rubber tired loader
belonging to the Forest Service (Equipment Number EN 1714) and being
driven by Utah Department of Transportation employee James E.
Roberson. The loader may not have been in working order, was traveling
too fast for the conditions and the driver was not keeping a proper look out
and failed to stop or make room in the roadway for the claimant’s vehicle to
pass. The loader struck claimant’s vehicle causing major damage to the
vehicle and injury to the claimant.
1
The width of the loader’s bucket (103.25 inches) was slightly wider than the width
of the loader’s wheels (97 inches).
2
Appellee App’x at 46. In the administrative-claims section asking about injuries, Linda
stated that she “suffered severe injury to her leg and knee. For a time, she has worried she
would lose the leg. The injury has resulted in complete and permanent disability and loss
of her job. Linda’s husband has a claim for loss of consortium.” Id.2
On January 28, 2013, the Griffeths sued the government. The deadline to amend
the pleadings was July 15, 2013. On January 8, 2014, nearly six months after that
deadline, the Griffeths moved to amend their complaint, seeking to add new theories of
negligence. Specifically, the Griffeths sought to allege that the Forest Service employees
acted negligently by not adequately warning of the loader’s presence, by not posting
proper signage, and by not operating a pilot vehicle ahead of the loader. The magistrate
judge recommended denying the motion to amend on three grounds: (1) futility because
the Federal Tort Claims Act (FTCA) bars claims not identified in the administrative
claim, (2) undue delay in moving to amend, and (3) undue prejudice to the government
caused by the delay. The district court adopted the magistrate judge’s recommendation.
Based on that ruling, the government filed a motion in limine to exclude from trial
all evidence offered to support the pilot-car theory. In addition, the government filed a
motion in limine to exclude testimony from Kaitlin Phelps, the Griffeths’ designated
expert witness on motorcycle operation. After receiving briefing and holding a hearing,
and after hearing testimony from Phelps, the district court granted both motions.
2
In their Complaint, the Griffeths alleged a loss-of-consortium claim on behalf of
Darin Griffeth.
3
After resolving these pretrial motions, the district court held a three-day bench
trial. During its case-in-chief, the government, over the Griffeths’ objection, moved to
admit deposition testimony from Scott Olsen. Months before the trial, the government
designated a portion of Olsen’s deposition testimony for use if the Griffeths did not call
Olsen as a witness. Unlike with other deposition designations by the government, the
Griffeths did not object to the government’s designation of Olsen’s testimony. The
district court allowed the government to introduce Olsen’s designated testimony, allowed
the Griffeths to designate other portions of Olsen’s deposition testimony, and then
allowed the government to supplement its designations. At the end of the trial, the district
court ruled that Roberson had not acted negligently.
On appeal, the Griffeths challenge some of the district court’s pretrial rulings,
evidentiary rulings, and the judgment against them. In essence, as we see it, they ask this
court to make its own fact findings in place of the district court’s and conclude that
Roberson was negligent as a matter of law. We decline to do so, and we affirm.
DISCUSSION
A. Absence of Negligence
On appeals from bench trials, we review the district court’s fact findings for clear
error, and its conclusions of law de novo. Gallardo v. United States, 752 F.3d 865, 870
(10th Cir. 2014). We find clear error only if a fact finding lacks support in the record or
if, despite some record support, we still are definitely and firmly convinced that the
district court made a mistake. Plaza Speedway Inc. v. United States,
311 F.3d 1262, 1266
4
(10th Cir. 2002). We review fact findings in the light most favorable to the district court’s
ruling and uphold them if the record permits. Id. We also “give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).
In assessing Roberson’s alleged negligence, the district court held that Utah law
governs because the accident occurred there. 28 U.S.C. § 1346(b)(1). The district court
used the following negligence standard from the Utah Supreme Court: a plaintiff alleging
negligence must prove “four essential elements: (1) that the defendant owed the plaintiff
a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the
proximate cause of the plaintiff’s injury, and (4) that the plaintiff in fact suffered injuries
or damages.” Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993). The district court found
that Linda Griffeth and Roberson owed each other a duty to operate their vehicles with
reasonable care, including duties to maintain safe and appropriate speeds, to keep proper
lookouts, and to reasonably control their vehicles. See Utah Code Ann. § 41-6a-601(1);
Lee v. Mitchell Funeral Home Ambulance Serv.,
606 P.2d 259, 261 (Utah 1980).
The district court made extensive fact findings after the trial. On the main issue of
negligence, the court found that Linda Griffeth was riding a Honda XR100R off-road
motor bike that was in excellent condition and had a top speed of 35-40 mph. Linda
Griffeth had one earbud in her ear while she was riding, which she testified was for music
and phone calls. She also testified that she doesn’t ride with both earbuds in because she
would be in danger if she could not hear oncoming traffic. The accident took place on
Sinks Road, one with a crushed-aggregate-rock road base. The road had recently been
5
resurfaced, so at the time of the accident, it was in excellent condition. At the accident
site, the width of Sinks Road was 14.7 feet, and on each side lay another 2 to 2.5 feet of
looser rock sloping downward to the terrain’s sharp drop-off. Sinks Road is not suitable
for painted stripes or lanes and is not wide enough for two traffic lanes of automobiles
traveling at normal speed. Users of the road, therefore, must slow and move to the right
when they approach and pass oncoming traffic.
The court credited the testimony of Mark Warner, the government’s expert
witness, who testified that Roberson drove the loader as close as possible to the right side
of the road, leaving “quite a bit of space” for Linda Griffeth to pass. Appellant App’x at
793. A photo taken by Warner showed a steep embankment to the right of the road.
Warner also testified that Linda Griffeth could have seen the loader from 200 feet3 and
had “ample opportunity to recognize the loader and safely come to a stop if she would
have been riding at a reasonable speed.” Appellant App’x at 794-95. Linda Griffeth,
Warner concluded, caused the accident.
The court also credited Roberson’s version of events. Roberson testified that
before driving on the roadway he turned on the loader’s headlights, hazard lights, flasher
lights, and beacon. Forest Service employee Shawn Palmer was driving a road grader
(wider than the loader) ahead of Roberson—meaning that all three motorcyclists passed
3
Warner measured the 200 feet from the front of the loader’s bucket in its post-
accident, resting position. But the district court could have relied on other parts of
Warner’s testimony to conclude that the loader became visible to Linda Griffeth
before it reached that spot.
6
Palmer in the road grader before they reached Roberson in the loader—and Forest
Service employee Steven Stucki was driving a pickup truck behind him. Because it was
the end of the work week, the Forest Service employees were taking the construction
equipment to a shed about ten miles from their worksite. Roberson testified that he was
driving as far right on the road as possible and that if he had been driving any further to
the right, he would have risked the loader tipping over because of the steep ledge.
Roberson said he slowed down when he saw the first motorcyclist. The first rider waved
and Roberson waved back. When he then saw Linda Griffeth coming straight for his
loader, he slammed his foot brake, pulled his emergency brake, and looked to see if he
could turn to avoid her. The loader skidded and at the time of the collision had either
fully stopped or was near stopping.
The Griffeths challenge the district court’s finding that Roberson was not
negligent. First, they allege that Roberson drove the loader too fast and challenge the
district court’s fact finding that Roberson was driving the loader between 15 and 18 mph.
In arguing this, they apparently ask that we conclude that the district court clearly erred in
relying on Warner, who testified that Roberson had been driving at a reasonable speed of
15-18 mph when he first saw Linda Griffeth and hit the loader’s brakes. Warner’s
testimony relied on analysis of the loader’s skid marks. Warner works for Collision
Safety Engineering, an accident-reconstruction and safety-research company, and has
investigated more than 300 accidents over his thirty years in that business. Warner also
has a bachelor’s and a master’s degree in mechanical engineering, is a member of, and
7
has taken classes with, the Society of Automotive Engineers, has published about a dozen
articles, and has made several presentations on accident reconstruction.
The Griffeths point out that Roberson testified that he slowed down before he hit
the brakes. Therefore, they argue, before the tires locked and skidded, the loader must
have been traveling faster than the speed that the court found. Next, the Griffeths argue
that the testimony of Forest Service employees Palmer and Stucki strengthen the case that
Roberson’s driving speed must have been faster: Palmer’s testimony that Palmer was
driving 25-30 mph and passed by the Griffeth group a mere 0.7 miles from the accident
site;4 Stucki’s testimony that Stucki, though in a truck capable of driving faster than
Roberson’s loader, did not catch up with Roberson until Stucki had driven for five miles.5
We see no clear error in the district court’s fact finding on the loader’s speed at the
relevant time—when he struck his brakes after seeing Linda Griffeth approaching. The
record supports this finding. In reaching its loader-speed determination, the district court
relied on expert testimony and testimony from people at or near the accident. In addition,
the district court’s fact finding depends on its credibility determinations, which we have
no basis to challenge. Our role is not to retry the case.
4
Despite this short distance, Linda and Darin Griffeth also testified that they did not
reach Roberson and the site of the accident for another 20-25 minutes.
5
As we understand it, the Griffeths’ argument on the loader’s speed assumes a steady
speed from leaving the work site until the accident.
8
Second, the Griffeths challenge the district court’s determination about whether
Roberson could have driven closer to the right edge of the road and enabled Linda
Griffeth to avoid the loader.6 But both Warner and Roberson testified that the loader was
as close to the right edge as possible without tipping over. Roberson testified about the
danger presented by “a ledge, a drop off” to the right of the road. Appellant App’x at 490.
The sharp decline beginning at the road’s shoulder and continuing to the ground below is
evident from the photo exhibits. We certainly cannot say that the district court clearly
erred in concluding that Roberson was not negligent.
In addition, the Griffeths challenge the district court’s finding that Roberson “was
on his side of [the] road.” Appellant Reply Br. at 6-7, 9. The Griffeths take this as
meaning that the entire loader was on Roberson’s side of the road, an incorrect
characterization given that the loader’s 8.6 foot width exceeded half the 14.7 foot
roadway. Even Roberson confirmed that in his testimony. But we don’t see the district
court saying that the entire loader was on Roberson’s side of the road. Instead, we see the
district court finding that Roberson had been driving as close to the right edge of Sinks
Road as possible without going off the right-hand ledge. The district court did not
subscribe to the Griffeths’ apparent theory of liability—that Roberson must be negligent
if he remained on the road instead of rolling down the slope abutting the road. And in
6
In a related argument concerning whether Roberson acted negligently, the Griffeths
dispute the position of Linda Griffeth on the roadway. The issue is at essence a
dispute between the credibility and accuracy of conflicting testimony—Linda
Griffeth’s versus Mark Warner’s and James Roberson’s—and so fell within the
district court’s discretion.
9
deciding the issue, the district court knew that both of Linda Griffeth’s companions were
able to pass the loader without incident.
Third, the Griffeths argue that the district court erred in determining that Linda
Griffeth could see the loader from 200 feet away. The district court heard conflicting
evidence on the visibility of the loader in Linda Griffeth’s sight line. Warner testified that
the loader would have been visible from 200 feet to an attentive, approaching driver.
Griffeth testified otherwise. Counsel for the Griffeths challenged Warner’s testimony
during cross examination, and now in the briefs, but Warner explained his conclusion and
the district court agreed with it. The district court did not clearly err in crediting Warner’s
account.7
B. Motion to Amend
Though courts should freely grant leave to amend when justice requires it, Fed. R.
Civ. P. 15(a)(2), we review district-court denials of that leave for abuse of discretion.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). District courts may
consider a wide range of factors, including undue delay, bad faith, dilatory motive, undue
prejudice, and futility.
Id. A district court abuses its discretion when it clearly errs; goes
beyond the permissible choices; or acts arbitrarily, capriciously, whimsically, or
7
And because the Griffeths did not raise their negligence per se claim based on a
Utah statute (Utah Code Ann. § 41-6a-1708 (repealed 2015)) in either their
administrative claim or at the district court, we view it as forfeited. Paycom Payroll,
LLC v. Richison,
758 F.3d 1198, 1203 (10th Cir. 2014).
10
manifestly unreasonably. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir.
2015).
The district court properly based its denial of the motion to amend on three valid
factors: futility, undue delay, and unfair prejudice. The court held that the amendment
would be futile because the FTCA waives the federal government’s sovereign immunity
only when the plaintiff has exhausted that claim administratively.8 28 U.S.C. § 2675(a).
The administrative claim must give notice of the underlying facts that will be used in the
civil suit. Staggs v. United States ex rel. Dep’t Health & Human Servs., 425 F.3d 881,
884 (10th Cir. 2005). In reviewing the Griffeths’ administrative claim, the district court
found that it had simply alleged Roberson’s negligence in driving the loader, not any
negligent failure by Roberson or others to adequately warn, to properly sign, or to use a
pilot car. Thus, the court held that the FTCA barred the new claims.
The court also based its denial of the motion to amend on grounds of undue delay
(the Griffeths did not file the motion to amend until nearly six months after the deadline
for amendments to pleadings) and of undue prejudice to the government. In their appeal,
the Griffeths haven’t challenged either the undue-delay or unfair-prejudice justifications
for the denial. So they waived their responses to those justifications, Zia Shadows, L.L.C.
v. City of Las Cruces, 829 F.3d 1232, 1239 n.3 (10th Cir. 2016), and those waivers
furnish independent bases to affirm the district court’s ruling.
8
In other words, the agency must make a final denial of the claim, which occurs
either when the agency actually denies the claim or fails to deny the claim six months
after a claimant makes the claim. 28 U.S.C. § 2675(a).
11
C. Pilot-Car Evidence
We review a district court’s rulings on motions in limine for abuse of discretion,
Seeley v. Chase, 443 F.3d 1290, 1293 (10th Cir. 2006), and likewise for exclusions of
evidence, Ridenour v. Kaiser-Hill Co.,
397 F.3d 925, 939 (10th Cir. 2005). Only if we
firmly believe that the district court made a clear error in judgment will we reverse.
Tanberg v. Sholtis,
401 F.3d 1151, 1162 (10th Cir. 2005). Otherwise, district courts have
wide discretion for evidentiary rulings. Webb v. ABF Freight Sys., Inc.,
155 F.3d 1230,
1246 (10th Cir. 1998). Irrelevant evidence is inadmissible. Fed. R. Evid. 402.
By denying the Griffeths’ motion to amend their complaint, the district court kept
them from asserting a negligence claim based on lack of a pilot car. The Griffeths argue
that the district court erred in granting the motion in limine excluding evidence on the
government’s failure to operate a pilot car ahead of the loader. Absent being allowed to
amend their complaint to state a pilot-car claim, the evidence would be irrelevant. Thus,
we affirm the district court’s granting of a motion in limine on this issue.
D. Deposition Testimony of Scott Olsen
We review a district court’s admission of evidence for abuse of discretion. Ryan
Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1170 (10th Cir.
2013). At least 30 days before trial, parties must designate any testimony they wish to
admit through the deposition transcript rather than by live testimony. Fed. R. Civ. P.
26(a)(3)(A)(ii), (B). The opposing party then has 14 days to object. Fed. R. Civ. P.
12
26(a)(3)(B). The opposing party waives any objection not made within that time unless
the court excuses the failure for good cause. Id.9
Here, the government properly designated pages of Olsen’s testimony and advised
it would move to admit that testimony if the Griffeths did not call him as a witness. The
Griffeths timely objected to deposition designations for three other witnesses, but did not
object to Olsen’s. Thus, the district court correctly admitted the transcript into evidence
over their late objection to the designation, which they had waived.
E. Kaitlin Phelps
We review for abuse of discretion a district court’s exclusion of expert witnesses.
United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). Proponents of expert
testimony have the burden to show admissibility. Conroy v. Vilsack,
707 F.3d 1163, 1168
(10th Cir. 2013). A witness may testify as an expert if she is qualified as such by
“knowledge, skill, experience, training, or education,” if her specialized knowledge “will
help the trier of fact to understand the evidence or to determine a fact in issue,” if her
testimony “is based on sufficient facts or data” and “is the product of reliable principles
and methods,” and if she “has reliably applied the principles and methods to the facts of
the case.” Fed. R. Evid. 702. In evaluating the admissibility of expert testimony, the
district court first considers whether the witness qualifies as an expert, and then whether
the proffered testimony is both relevant and reliable, as assessed by its underlying
reasoning and methodology.
Nacchio, 555 F.3d at 1241;
Conroy, 707 F.3d at 1168.
9
Except for objections under Fed. R. Evid. 402 or 403. Fed. R. Civ. P. 26(a)(3)(B).
13
Experience alone may qualify a witness as an expert, but the witness still must explain
how her experience is sufficient to lead to a conclusion based on the facts of the case.
United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003). Though it has many
components, the standard is generally liberal and flexible. Daubert v. Merrell Dow
Pharm., Inc.,
509 U.S. 579, 588, 594 (1993).
The Griffeths sought to have Phelps testify that Linda Griffeth operated her
motorcycle safely and reasonably on the day of the accident. But the district court held
that Kaitlin Phelps did not satisfy either part of the expert-witness test. At the expert-
testimony hearing, Phelps testified that she had frequent recreational experience riding
motorcycles. She had no formal training or licenses, she had never ridden on the road
where the accident took place before making her conclusions,10 and she had never
testified as an expert on motorcycle riding. Nor did Phelps explain how her experience
supported her conclusions about Linda Griffeth’s accident. Given those deficiencies, the
district court properly exercised its discretion to conclude that Phelps was not qualified as
an expert and that her testimony would not be the product of reliable methods and
principles. See Milne v. USA Cycling Inc., 575 F.3d 1120, 1133-34 (10th Cir. 2009);
Nacchio, 555 F.3d at 1258. Phelps’s conclusory statement that her experience supported
her conclusions is certainly insufficient. See
Nacchio, 555 F.3d at 1258. The Griffeths
protest that Phelps’s testimony would have greatly aided the trier of fact, but any benefit
10
She had ridden on Sinks Road by the time of the trial.
14
that Phelps’s expert testimony might have provided is of no importance if she was not in
fact qualified to testify as an expert.
CONCLUSION
For the reasons above, we affirm the pretrial and evidentiary rulings and the
judgment of the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
15
