Date: 07-30-2001

Case Style: David M. Veile v. Gordon D. Martinson, et al.

Case Number: 00-8005

Judge: Brorby

Court: United States Court of Appeals for the Tenth Circuit

Plaintiff's Attorney: William G. Hibbler and Marty B. Guthrie, Cheyenne, Wyoming

Defendant's Attorney: Terry L. Armitage, Cheyenne, Wyoming

Description: Plaintiffs David M. Veile and Veile Mortuary, Inc. appeal the district court's conclusion they did not possess a protected property interest in a rotation policy established by defendant Gordon D. Martinson, the Coroner of Washakie County, Wyoming, and the court's decision to strike an expert witness designation on the property interest issue. Further, they challenge the district court's refusal to give a particular jury instruction in the trial on defendants Michael L. Bryant's and Bryant Funeral Home, Inc.'s counterclaim alleging antitrust violations, defamation, and stalking. Finally, Mr. Veile challenges the sufficiency of the evidence supporting the jury verdict in Mr. Bryant's favor on the stalking claim. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. Background

Mr. Veile is the owner/operator of Veile Mortuary in Worland, Wyoming. In 1995, Mr. Bryant opened Bryant Funeral Home in direct competition with Veile Mortuary. Around this time, Mr. Bryant also joined the Washakie County Ambulance Service as a volunteer emergency medical technician, and became a deputy coroner at Coroner Martinson's invitation. In an effort "to treat both [funeral homes] equally," Coroner Martinson established a policy requiring the referral of "coroner cases"

to Veile Mortuary and Bryant Funeral Home on an odd- and even-month rotating basis when (1) a funeral home preference had not been expressed by the deceased person or his family, or (2) a body is unclaimed or unidentified (hereinafter "rotation policy"). Mr. Veile and Veile Mortuary sued Mr. Martinson, Mr. Bryant, two other deputy coroners, the Board of County Commissioners, and Bryant Funeral Home under 42 U.S.C. §§ 1983 and 1985(3) claiming a constitutionally protected property interest in the rotation policy, and defendants' failure to follow the policy with certain coroner cases over a three-year period.

In support of this claim, plaintiffs designated Ronnie W. Flud, the Coroner of Clark County, Nevada, as an expert witness to testify about the operation of coroner rotation systems.

Defendants filed a motion to strike the designation of Mr. Flud as an expert witness due to the alleged unreliability and irrelevance of his proposed testimony. Adopting the magistrate judge's report and recommendation, the district court granted defendants' motion to strike. Specifically, the district court held plaintiffs "failed ... to provide some indication of the reliability of the designated testimony" as required by Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), in that "Mr. Flud asks us only to rely on his long experience to support his conclusion that the [rotation] policy was violated. This is not enough."

Defendants also filed a motion for summary judgment arguing plaintiffs did not have a constitutionally protected property interest and defendants are protected by qualified immunity. After reviewing the deposition testimony, exhibit, and case law plaintiffs presented in opposition to the summary judgment motion, the district court concluded the rotation policy: (1) did not constitute an agency or administrative regulation under Wyoming law; (2) was not required or supported by any Wyoming statute, regulation, or administrative rule; (3) had not been declared a constitutionally protected property interest by the Wyoming Supreme Court; and (4) was "laden with ambiguity" in that it was neither mandatory nor binding for any specific period of time. The district court characterized the rotation policy as "an informal system or informative policy adopted by Coroner Martinson to provide guidance in the performance of the duties of the coroner's office with respect to coroner's cases." Accordingly, the district court held "plaintiffs' complaint fails to allege that the defendants deprived them of a protected interest, and thus, the plaintiffs' claims against all defendants based upon federal law fail." Finally, the district court held defendants were entitled to qualified immunity based on plaintiffs' failure to meet its summary judgment burden of showing defendants' actions violated a constitutional right that was clearly established at the time of the conduct at issue.

Mr. Bryant and Bryant Funeral Home counterclaimed pursuant to federal antitrust law and state law claims of stalking and defamation. The district court denied plaintiffs' motion for summary judgment on defendants' counterclaim, and the counterclaim proceeded to trial. At the close of Mr. Bryant's and Bryant Funeral Home's case-in-chief, Mr. Veile moved for judgment as a matter of law in his favor on all three causes of action. The district court granted the motion on the antitrust and defamation claims, but allowed the stalking claim to continue. At the close of evidence, Mr. Veile renewed his motion for judgment as a matter of law on the stalking claim; The district court denied the motion. The jury found Mr. Veile guilty of stalking and awarded Mr. Bryant $90,000 in compensatory damages and $86,000 in punitive damages. Mr. Veile filed a motion for a new trial and renewed his motion for judgment as a matter of law, both of which the district court denied.

There are four issues on appeal. Mr. Veile and Veile Mortuary claim the district court erred by concluding the rotation policy did not create a constitutionally protected property interest under § 1983, striking the designation of Mr. Flud as an expert witness, and refusing to instruct the jury on the directed verdicts in their favor on the antitrust and defamation counterclaims. Mr. Veile claims insufficient evidence existed to support the jury verdict in Mr. Bryant's favor on the stalking counterclaim.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan