David Polys and Marcia Polys, Plaintiffs-appellants, v. Trans-colorado Airlines, Inc., Defendant-appellee, 941 F.2d 1404 (10th Cir. 1991)

Plaintiffs, David L. Polys and Marcia Polys, appeal a judgment in favor of the defendant, Trans-Colorado Airlines, Inc., in the Polyses' personal injury suit against Trans-Colorado. We affirm.

On January 14, 1984, Trans-Colorado Flight 216, which originated in Albuquerque, New Mexico, landed at the Durango, Colorado airport, skidded to the left, and stopped abruptly upon impact with a snowbank. R.Vol. I, tab 5 at 1. David Polys was one of four passengers aboard that plane. Approximately two years later, the Polyses filed a personal injury action against Trans-Colorado Airlines, Inc. David Polys claimed that the "aircraft landing incident caused a closed head injury [to him] which produced disabling psychological and psychiatric effects." Mrs. Polys joined the action claiming a loss of consortium. Trans-Colorado admitted negligence in the operation of the aircraft, but denied causation and damages. After a bench trial, the United States District Court for the District of Colorado held for the defendants, finding that the Polyses had "failed to prove that the conduct of the defendant's agents on January 14, 1984, caused any injury to David Polys."

On appeal, the Polyses raise two issues. First, they contend that the district court erred in excluding the deposition testimony of two of the Polyses' expert witnesses. Second, they contend that the district court erred in finding that they failed to prove that Trans-Colorado's admitted negligence caused any injury to Mr. Polys and, thus, erroneously denied recovery for the alleged injuries and damages.

The Polyses argue that the district court erred in excluding the deposition testimonies of two expert witnesses, Dr. Schultz and Dr. Daven. We disagree because the Polyses failed to preserve the issue for appeal by making an offer of proof and the court's ruling did not amount to plain error.

Federal Rule of Evidence 103(a) states in pertinent part:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

....

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

The first purpose of the offer of proof requirement is to allow the trial judge to make an informed evidentiary ruling. The plain language of Federal Rule of Evidence 103(a) (2) requires that the judge be informed contemporaneously with the proponent's attempt to admit the evidence. This will be accomplished if the substance and purpose of the evidence are apparent to the judge from the context in which it is offered, or an offer of proof either precedes or immediately follows the ruling so that the trial judge can reconsider.¹ 

To satisfy the rule, we have previously stated that "merely telling the court the content of ... proposed testimony" is not an offer of proof. Gates v. United States, 707 F.2d 1141, 1145 (10th Cir. 1983) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976), cert. denied, 429 U.S. 1100, 97 S. Ct. 1122, 51 L. Ed. 2d 549 (1977)). Rather, as the Fifth Circuit stated in McQuaig v. McCoy, 806 F.2d 1298, 1301 (5th Cir. 1987), the proponent must explain what it expects to show and "the grounds for which the party believes the evidence to be admissible.... [so that the trial] court [is] on notice of the purpose for which the evidence is offered while there is still time to remedy the situation."² 

The second purpose for the offer of proof is to create a clear record that an appellate court can review to "determine whether there was reversible error in excluding the [testimony]." New Mexico Sav. & Loan Assoc. v. United States Fidelity and Guar. Co., 454 F.2d 328, 334 (10th Cir. 1972) (citing Downie v. Powers, 193 F.2d 760, 768 (10th Cir. 1951) and 5 Moore's Fed.Prac. (2d ed.), p 43.11, pp. 1381-82); see also McQuaig v. McCoy, 806 F.2d at 1302; Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir. 1982), cert. denied, 459 U.S. 1175, 103 S. Ct. 824, 74 L. Ed. 2d 1020 (1983).

Once we find that a party, either in fact or substance, made an offer of proof of excluded evidence, then a trial judge's "decisio [n] to admit or exclude evidence 'will not be reversed by this court absent a clear abuse of discretion.' " Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1266 (10th Cir. 1988) (quoting Weir v. Federal Insur. Co., 811 F.2d 1387, 1396 (10th Cir. 1987)); see also Rainbow Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233, 1242 (10th Cir. 1990); United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir. 1988). This is especially true with respect to deposition testimony. Alfonso v. Lund, 783 F.2d 958, 961 (10th Cir. 1986); Reeg v. Shaughnessy, 570 F.2d 309, 317 (10th Cir. 1978); Sims Consol., Ltd. v. Irrigation and Power Equip., Inc., 518 F.2d 413, 418 (10th Cir. 1975), cert. denied, 423 U.S. 913, 96 S. Ct. 218, 46 L. Ed. 2d 141 (1975); Campbell v. Barnett, 351 F.2d 342 (10th Cir. 1965).

Under this standard of review, we strongly defer to the trial court. The review is generally setting specific, looking at whether the district court correctly weighed appropriate factors. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981). Even if the trial judge abused his or her discretion in making a decision to exclude evidence, we will overlook the error as harmless unless a party's substantial right was affected.³  K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1156 (10th Cir. 1985); Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir. 1973); Fed. R. Civ. P. 61.

On the other hand, if the complaining party failed to meet the offer of proof standard, we can reverse only if there was plain error affecting a party's substantial rights. Fed.R.Evid. 103(d).⁴  Although the plain error doctrine applies to both criminal and civil cases, with respect to the latter, " [t]he 'plain error' exception ... has been limited to errors which seriously affect 'the fairness, integrity or public reputation of judicial proceedings.' " McEwen v. City of Norman, Okla., 926 F.2d 1539, 1545 (10th Cir. 1991) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987)).⁵  The "miscarriage of justice" must be "patently plainly erroneous and prejudicial." Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir. 1984), aff'd 472 U.S. 585, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (1985).

The Polyses' counsel made no formal offer of proof when the district court sustained Trans-Colorado's objection to the admission of both Dr. Daven's and Dr. Schultz's deposition testimonies. Following the exclusion of Dr. Daven's testimony, counsel responded "Thank you, Judge. The next witness we would call...." R. Vol. II at 25. The next witness was to be Dr. Schultz. Polyses' counsel submitted his deposition testimony for admission. Although their counsel briefly explained that the first will-call witness was out of the country and the second was out of the district, both over 100 miles away, he did not explain the substance or purpose of the experts' testimonies. In response to the sustained objection, Polyses counsel merely called the next witness. R. Vol. II at 26.

Furthermore, the context in which the deposition evidence was offered; following the Polyses' first witness, revealed nothing about the substance or purpose of the testimonies. The Polyses argue, nonetheless, that they met the Rule 103(a) (2) requirement because "in the course of proceedings, the district court was made aware of the nature and substance of the excluded testimony." Appellants' Reply Brief at 8. To support this argument, the Polyses cite four times during the trial when Dr. Daven or Dr. Schultz were discussed. When the doctors' names came up one and two days later, however, the plaintiffs' counsel made no effort to argue for admittance of the deposition testimony and they never explained what its contribution would have been.

The plaintiffs appear to believe that if the significance of excluded evidence becomes apparent later, a trial judge sua sponte must reconsider its earlier evidentiary ruling. The plaintiffs misunderstand the offer of proof requirement. First, eliciting through later testimony the substance of previously excluded evidence, without more in the way of explanation or proffer to the court, satisfies neither the plain language of, nor the purpose for, Rule 103(a) (2). As we stated, the Rule contemplates some contemporaneity between the trial judge's knowledge about the proposed evidence and the evidentiary ruling to allow a proper decision at the time the evidence is offered. Even considering, hypothetically, that counsel had requested admission of the excluded deposition testimonies later in the proceedings when other witnesses testified about these doctors, the testimony in question was not sufficient to apprise the district court of the substance and purpose of the excluded testimony and would not have satisfied the second purpose of the rule--to create a clear record for us to review the trial court's decision.⁶  Therefore, because the Polyses have not preserved the issue for appeal, we can not review the district court's decision to exclude the deposition testimonies for abuse of discretion. Consequently, we do not reach the harmless error question. Instead, we examine the record for plain error.

We note that it is difficult to find plain error in cases like this because "failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the [plain] error." Fed.R.Evid. 103(d) advisory committee's note. On the facts before us, however, we can not say exclusion of the deposition testimonies was plain error comprising an exceptional case of prejudice or unfairness.

First, we find no plain error. We agree with Trans-Colorado that the district court was not automatically required to admit the deposition testimonies under Federal Rule of Civil Procedure 32(a) (3) (B) just because the witnesses were more than 100 miles away as plaintiffs appear to argue. The trial judge appropriately considered surprise to opposing counsel. See Alfonso v. Lund, 783 F.2d at 961; see also In re Air Crash Disaster at Stapleton International Airport, 720 F. Supp. 1493, 1502 (D. Colo. 1989) (The trial court refused to admit deposition testimony even though the witness lived outside the 100 mile radius because it decided the jury needed to "consider and evaluate the witness's credibility."). Conversely, the Polyses are correct that when applying Federal Rule of Civil Procedure 32, courts no longer distinguish between depositions taken for discovery use or for trial use. See, e.g., United States v. International Business Mach. Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). Thus, Trans-Colorado's objection to the admission of the depositions because they were taken for discovery and not for use in trial was erroneous. The record indicates, however, only that this was one argument for objection to admission, not that the judge accepted this rationale in making his evidentiary ruling. R. Vol. II at 25-26.

Second, we find that the Polyses did not suffer prejudice or unfairness. The Polyses argue that they were prejudiced because, without the deposition testimonies, the district court decided their case on incomplete evidence. They contend that Doctor Schultz's testimony would "have demonstrated the validity of the use of BEAM analysis" and that "Dr. Daven would have documented Mr. Polys' seizure disorders ... [and] would have testified to Mr. Polys' neuropsychological prognosis." Appellant's Brief at 13.

With respect to Dr. Schultz's proposed testimony, the district court found that " [e]ven if the BEAM test results are accepted as indicating some organic brain damage, the tests are not probative of causation." R. Vol. I, tab 5 at 6. Because the Polyses must prove causation in order to recover damages, we find that the exclusion of Dr. Schultz's testimony did not prejudice them. With respect to Dr. Daven's proposed testimony, both parties offered expert evidence about whether David Polys suffered seizures and about his neuropsychological condition. Dr. Daven's testimony on this point would have been cumulative. We find that exclusion of Dr. Daven's testimony was not exceptionally prejudicial or unfair to the Polyses.

In sum, absent offers of proof, we can not review the district court's ruling that excluded Doctors Daven's and Schultz's deposition testimonies for abuse of discretion. In addition, we hold that that ruling was not plain error. It was not error and, even if it was, it did not affect a substantial right of the Polyses. Therefore, we will not reverse the district court.

The Polyses next contend that the district court erred in finding that they failed to prove causation despite Trans-Colorado's admitted negligence.⁷  We disagree.

The Polyses argue that the district court misapplied the law on aggravation of a pre-existing condition. We review statutory interpretations or legal analyses de novo. Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986). In Colorado, this cause of action requires a plaintiff to show that a pre-existing condition was aggravated by an accident due to the negligence of another. Stephens v. Koch, 192 Colo. 531, 561 P.2d 333, 334 (1977). Although Colorado law regarding aggravation of a pre-existing condition allows a jury to place all the liability for a disability on a defendant if it can not apportion causation between an aggravating accident and a pre-existing condition, a plaintiff must still prove that the accident aggravated the pre-existing condition. See Stephens v. Koch, 561 P.2d at 334.

The plaintiffs argue that the district court essentially made two mistakes.⁸  First, they claim that because "the district court acknowledged that [David Polys] previously had psychological problems and that he suffered psychological injury as a result of the accident [,] ... it erred in denying recovery for the aggravation of Mr. Polys' pre-existing psychological conditions caused by Trans-Colorado's admitted negligence." Appellant's Brief at 13-14. With respect to the Polyses claim of aggravation of a pre-existing condition, the district court stated: "For the plaintiff to recover here, it must be said that his personality disorders became worse as a result of a minor inconveniencing incident in which he suffered no physical injury." Id. at 9. As Trans-Colorado notes, the district court

[did] not find that [David Polys'] personality disorders did become worse, but only that that specific finding would be required before any further inquiry would become appropriate. Unless the Trial Court found that some condition was "worsened" or "aggravated," which it did not, there is simply no basis for applying the doctrine of pre-existing condition.

Appellee's Brief at 14. Thus the district court correctly applied the law on aggravation of a pre-existing condition to find that David Polys' "mental and emotional disorders," his pre-existing condition, did not become worse as a result of the incident. R. Vol. I, tab 5 at 8.

The Polyses' second argument is that they are entitled to damages for emotional distress which, in Colorado negligence actions, is not dependent on either physical injury or impact. Appellant's Brief at 15. To succeed under this theory, David Polys "must have been subjected to an unreasonable risk of bodily harm because of the negligence of another" which caused emotional injury and must have so alleged or he is "preclude [d] ... from recovering such damages." Slovek v. Board of County Comm'rs, 697 P.2d 781, 783 (Colo.App.1984) aff'd, 723 P.2d 1309 (Colo.1986) (citation omitted). The Polyses are correct that this cause of action does not require a showing of physical injury or impact. The Polyses apparently construe the following district court statement as a finding of emotional injury: "Where the defendant's conduct is nothing more that negligent, as admitted, recovery for purely emotional and psychological stresses would inordinately expand tort law." (Emphasis added). On the contrary, the district court found that David Polys suffered no physical or psychological injury as a result of the airplane incident. But more important to our review is the fact that the Polyses did not plead negligent infliction of emotional distress.

In their first amended complaint, the Polyses alleged "severe injury to [David's] back and spine." R. Vol. I, tab 2 at 4. The plaintiffs complained that these injuries would "in time" affect David Polys' physical and mental condition thus setting the stage for the aggravation of a pre-existing condition claim made at trial. The plaintiffs stated:

David L. Polys suffered severe injury to his back and spine. The specific injuries and their ill effects have in turn caused Plaintiff's physical and mental condition to deteriorate generally so that the specific injuries and ill effects alleged have caused ... Plaintiff to suffer the consequences and ill effects of such deterioration.

R. Vol. I, tab 2 at 3-4 (emphasis added).

Furthermore, at trial the Polyses did not indicate an intention to add a claim for negligent infliction of emotional distress. In opening statements they said they would offer evidence to show that as a result of the airplane incident David Polys suffered chronic post-traumatic stress disorder and seizures in addition to "some problems that were physical coupled with psychological." R. Vol. II at 4. They concluded the opening statement by asking the court to find in the alternative that David Polys' alleged injuries were an aggravation of a pre-existing injury. R. Vol. II at 5. The plaintiffs' closing arguments allude to nothing in addition to the earlier alleged injuries which were post-traumatic stress disorder, organic brain damage, seizures, and aggravation of a pre-existing condition.

Finally, the Polyses' argument that their claim of emotional injury "was raised and specifically addressed at trial" because "the last inquiry the district court made to Trans-Colorado's counsel at trial concerned that law governing aggravation of a pre-existing condition" is nonsense. It is absurd to think that after closing arguments a litigant may introduce a new cause of action. Moreover, the question from the district court judge to the defendant's counsel, merely sought to determine if any recent Colorado cases varied the law on aggravation of a pre-existing condition. R. Vol. V at 89. The brief exchange had nothing whatsoever to do with a negligent infliction of emotional distress claim or the law on that cause of action. We find that the Polyses did not raise a negligent infliction of emotional distress claim either in their complaint or at trial.

In sum, the district court correctly applied the law on aggravation of pre-existing condition to deny recovery on that theory. In addition, the Polyses did not allege negligent infliction of emotional injury and now may not claim that cause of action.

In accordance with the foregoing, we AFFIRM the district court order.