UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY E. CRESSLER,

Plaintiff-Appellant,

v.

JOHN RAPP NEUENSCHWANDER, M.D., JOHN RAND NEUENSCHWANDER, M.D.,

Defendants-Appellees,

ROSS E. STADALMAN, M.D.,

Defendant.

No. 98-3173

(D.C. No. 95-CIV-1034)

(District of Kansas)

ORDER AND JUDGMENT*

Before BALDOCK, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ANDERSON, Senior Circuit Judge.

Larry Cressler ("Cressler") brought suit in the United States District Court for the District of Kansas against Dr. John Rapp Neuenschwander, his son, Dr. John Rand Neuenschwander (hereinafter referred to as "the Defendants"), and Dr. Ross E. Stadalman for medical malpractice based on an alleged failure to properly diagnose and treat malignant melanoma on the bottom of Cressler's right foot. By amended complaint, Dr. Stadalman was not named as a defendant. Trial by jury resulted in a defense verdict for the Defendants.1 Judgment to that effect was duly entered. Thereafter, Cressler filed a timely motion for new trial. After hearing, that motion was denied. Cressler appeals.

On appeal, Cressler raises two grounds for reversal: (1) the district court erred in allowing two of the Defendants' expert witnesses (Dr. Jewell and Dr. Reed2) to testify "beyond" their respective reports which had previously been given his counsel and filed with the district court; and (2) the district court further erred in refusing to allow Cressler's attorney to point out to the jury, in closing argument, that the Defendants had the same liability insurance carrier as two of their other expert witnesses, namely a Dr. Schwindle and a Dr. Sweet. Both of these matters were urged by Cressler in his post- trial motion for a new trial. In denying that motion, the district court was of the view that neither Dr. Jewell nor Dr. Reed in their trial testimony had gone beyond their previously filed reports and that it had not erred in refusing to allow Cressler's attorney to argue insurance coverage to the jury.

Prior to trial, Cressler filed a so-called motion to strike any expert testimony of Drs. Jewell and Reed. The motion was apparently based on a mistaken belief that counsel for the Defendants had not designated Drs. Jewell and Reed as their expert witnesses. A magistrate judge denied that motion and in so doing stated as follows: "However, the opinion of those two experts are limited to those opinions already provided to the plaintiff. In addition, plaintiff will be permitted to depose these two experts." Counsel for Cressler did not depose either Dr. Jewell nor Dr. Reed. However, shortly prior to trial, defense counsel took a video deposition of Dr. Reed in Houston, Texas, it appearing that Dr. Reed because of a physical ailment would not be able to travel to Kansas for the trial. Counsel for Cressler participated in that video deposition.

In his motion for a new trial, Cressler claimed that the trial judge, in effect, "overruled" the magistrate judge and allowed Drs. Jewell and Reed to testify "beyond the scope" of their respective reports. In denying the motion for a new trial, the district court observed that this particular matter had been "addressed at trial, and the court found that neither witness transcended the bounds of the pre-trial order." In other words, the district court was of the view that the testimony of Drs. Jewell and Reed was within the scope of their respective reports previously filed with the court and furnished opposing counsel. We review a district court's inclusion or exclusion of evidence for an abuse of discretion, and our study of the record indicates that there was no abuse of discretion by the district court in allowing Drs. Jewell and Reed to testify as they did. Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995).3

At trial it was somehow brought out that the Defendants and two of their expert witnesses, a Dr. Schwindle and a Dr. Sweet, were insured for medical malpractice by the same liability insurance carrier. Shortly prior to closing argument, Cressler's counsel advised the court that he proposed to make comment to the jury in his closing argument that the Defendants and the two expert witnesses were insured by the same "mutual" insurance company, and that any award given Cressler by the jury would affect future premiums paid by the Defendants and their expert witnesses. Such, according to counsel, would be indicative of possible bias on the part of the two expert witnesses. The district court sustained Defendants' objection thereto and ordered Cressler's counsel not to make such argument, since there was no evidence that the insurance carrier in question was a mutual company or that a verdict for Cressler would increase premiums of the Defendants and their expert witnesses. We find no error in the district court's handling of this matter. On appeal, counsel appears to argue that all he wanted to comment on in his argument to the jury was that the Defendants and "two of the Defendants' expert witnesses were covered by the same liability insurer." That is not the way it was presented at trial. The district court did not err in refusing to allow counsel to point out to the jury that the Defendants and two of their expert witnesses were insured for malpractice by the same insurance company, which was a "mutual" company, and that a verdict for Cressler would result in higher premiums for the Defendants and their expert witnesses.4

Judgment affirmed.

Entered for the Court

Robert H. McWilliams

Senior Circuit Judge