Plaintiff, Ms. Barbara Coletti, appeals a jury verdict and judgment denying her retaliatory discharge, public policy tort claim against her former employer, Cudd Pressure Control (“Cudd”). Ms. Coletti alleges Cudd fired her for filing a workers’ compensation claim. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Ms. Coletti raises several issues on appeal. First, she contends the trial court’s jury instructions improperly defined the Wyoming Workers’ Compensation public policy tort claim for retaliatory discharge, and included an improper “presumption” of regularity in the employer’s business conduct. Second, she alleges the trial court improperly denied her the opportunity to introduce deposition testimony as substantive evidence because the deponents were present at trial and available to testify. Third, Ms. Coletti claims the trial court improperly dismissed her claims of fraudulent creation of evidence and intentional infliction of emotional distress. Fourth, she asserts the trial court erred by refusing to allow her to present testimony purporting to show Cudd’s pattern of retaliatory conduct toward employees who made workers’ compensation claims. Finally, Ms. Coletti contends the trial court should have imposed sanctions for Cudd’s alleged failure to timely and adequately comply with the court’s discovery orders.
BACKGROUND
Ms. Coletti was formerly an at-will employee working as an administrator for Cudd, an oil and gas well control and specialty services company, in its Rock Springs, Wyoming, office. She also supplemented her income by working as an independent contractor performing janitorial services for the company. On the evening of January 26, 1995, Ms. Coletti injured her back while attempting to close the front gate' to Cudd’s premises. Ms. Coletti mentioned her back pain to Cudd’s district manager, Ralph Stud-dard, the following morning and later tolS the safety director, Gene Holt, about her injury; however, she did not seek medical attention or file a workers’ compensation claim at that time. Three months later, while receiving medical treatment for an insect bite, Ms. Coletti asked the doctor to examine her back. Even after the visit to the doctor, she still did not apply for workers’ compensation benefits.
In the Spring of 1995, Cudd supervisors visited the Rock Springs office in an attempt to cure certain problems the company was having with operations there, particularly with regard to certain aspects of Ms. Collet-ti’s job performance. According to Ms. Star-la Bradley, an administrative supervisor with Cudd, she traveled to the company’s Rock Springs office to evaluate the state of affairs, observe Ms. Coletti, and help her improve her job performance. After her visit and review of the situation, Ms. Bradley informed Ms. Coletti she was placing her on a “30-day job improvement period.” This meant Ms. Coletti had thirty days to make positive changes in her job performance or be fired. However, during this probationary period, Ms. Coletti’s troubles at work continued. Her supervisors repeatedly disciplined her for leaving the office and forwarding phone calls over the lunch hour, and reprimanded her for unexcused absences from work.
Following these events, on May 5, 1995, the district manager, Don Rode, decided to *771 terminate Ms. Coletti’s employment. -Mr. Rode cited poor job performance and unexcused absences as the basis for her discharge. Coincidentally, on the day she was terminated, Ms. Coletti completed a workers’ compensation report for the injury she suffered January 26, 1995. However, Mr. Rode claimed he did not know Ms. Coletti had filed the workers’ compensation claim at the time he fired her.
Following her termination, Ms. Coletti filed suit against Cudd alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., retaliatory discharge under Wyoming law, and breach of the implied covenant of good faith and fair dealing. The trial court granted Cudd’s initial motion for summary judgment and dismissed Ms. Coletti’s Americans with Disabilities Act and covenant of good faith and fair dealing claims. However, the court subsequently allowed Ms. Coletti to amend her complaint to include allegations of “tortious creation of documents” and intentional infliction of emotional distress. The district court granted Cudd’s motion to dismiss the tortious creation of documents claim because the cause of action was not recognized under Wyoming law, but refused to dismiss Ms. Coletti’s intentional infliction of emotional distress claim. After trial, however, the district court found insufficient evidence to instruct, the jury on intentional infliction of emotional distress, and dismissed the claim. Following deliberation, the jury returned' a verdict in favor of Cudd on the sole remaining issue of retaliatory discharge.
DISCUSSION
1. Contested Jury Instructions
Ms. Coletti contends the court gave two improper jury instructions. She argues the first instruction created an impermissible presumption of business regularity, and the second instruction misstated the law pertaining to her Wyoming Workers’ Compensation retaliatory discharge claim. We disagree with her allegations and conclude neither instruction misled or confused the jury, improperly stated the applicable law, or resulted in prejudice.
It is well settled the admission or exclusion of a particular jury instruction is left to the sound discretion of the trial court.
Harris Mkt. Research v. Marshall Mktg. & Communications, Inc.,
In the first disputed instruction, the district court advised the jury:
Unless and until outweighed by evidence in the case to the contrary, you may find that official duty has been regularly performed; that private transactions have been fair and regular; that the ordinary course of business or employment has been followed; that things have happened according to the ordinary course of nature and the ordinary habits of life; and that the law has been obeyed.
Ms. Coletti argues this instruction created an impermissible presumption not supported by Wyoming law, and was tantamount to a directed verdict on the issue of the regularity of Cudd’s business practice.
*772 We disagree with Ms. Coletti’s argument. The instruction permits, but does not require the jury to make certain reasonable inferences about the regularity of business practice. Certainly, as Ms. Coletti asserts, the instruction does burden the plaintiff with providing “affirmative disproof’ to overcome the initial inference. However, we fail to see how this constitutes reversible error or results in any prejudice, considering the fact the plaintiff has the ultimate burden of persuasion as a matter of law in a retaliatory discharge action anyway — with or without the instruction. At worst, the quoted instruction is an example of over-instructing a jury, but it was not prejudicial error. The instruction did nothing to affect Ms. Coletti’s existing evidentiary burden.
We also find Ms. Coletti’s arguments regarding whether the instruction creates a “presumption” or an “inference” immaterial, and merely an exercise in semantics. What is truly important is whether the instruction improperly guided the jury or prejudiced a party. In this case, the instruction does not override or imply superiority to established facts, and it makes ample provision for nullifying the initial inference through countervailing evidence. Since, under the facts of this case, the instruction does not constrain the jury nor create an improper irrebuttable presumption not supported in the law, we find no error.
The second disputed instruction reads:
In order for the Plaintiff, Barbara Coletti, to prevail on her claim against the Defendant, Cudd Pressure Control, she must prove by a preponderance of the evidence that her decision to file a Workers’ Compensation claim was the determining factor in the Defendant’s decision to discharge her. Plaintiff need not prove that her decision to file a Workers’ Compensation claim was the sole or exclusive motivation for defendant’s discharge decision. Her decision to file a Worker’s Compensation claim is a determining factor if Plaintiff would not have been discharged except for that decision. 1
Ms. Coletti claims this instruction fails to include the proper burden shifting analysis as established in
Cardwell v. American Linen Supply,
Admittedly, the instruction given does not precisely mirror the framework established in
Cardwell,
and some question exists about whether the trial court should have included the entire burden-shifting litany. What is clear, however, is the instruction covers the critical issues presented for the jury, and
does not
misstate the law of the jurisdiction.
United States v. Scott,
Accordingly, we hold the district court did not abuse its discretion in giving the disputed jury instructions. Neither instruction improperly guided the jury in its deliberations, nor resulted in prejudicial error.
See Mason v. Oklahoma Turnpike Auth.,
*773 2. Refusal to Allow the Introduction of Deposition Testimony as Substantive Evidence
Before the trial, Ms. Coletti designated certain segments of deposition testimony of Cudd employees which she proposed to introduce in her case in chief as “managing agents’ ” statements against interest. However, the district court decided not to allow the introduction of the deposition segments because the deponents were ready and available at trial for Ms. Coletti to call and examine as adverse witnesses.
We review the trial court’s decision to disallow the deposition testimony for abuse of discretion.
Angelo v. Armstrong World Indus., Inc.,
The trial judge reasoned:
If there’s a live witness available, ... you [plaintiffs counsel] can call that witness as an adverse witness in your case in chief. And if you have a deposition of that individual, [and] you want to impeach him with a prior inconsistent statement, I’ll give you plenty of latitude to do that. But out-of-court statements, although they can be used for any purpose^] if they’re depositions in which all parties have had an opportunity to be present, should never be used in lieu of live testimony unless, of course, [opposing counsel] waived it.
Ms. Coletti contends the trial court improperly imposed its preference for live witness testimony and failed to properly apply provisions of the Federal Rules of Civil Procedure which allow the introduction of adverse party deposition testimony as substantive evidence, even when the party is available to testify. Fed.R.Civ.P. 32.
Rule 32 of the Federal Rules of Civil Procedure governs use of depositions in a court proceeding. In order for a party to use a deposition at trial, the court must find the deposition admissible under the rules of evidence and may only admit it against a party who was present or represented at the deposition. Fed.R.Civ.P. 32(a). Under Rule 32, a “deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence.” Fed.R.Civ.P. 32(a)(1). The Rule also permits an adverse party to use “[t]he deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party” for any purpose. Fed.R.Civ.P. 32(a)(2). 3
We agree with Ms. Coletti’s argument that Rule 32 allows a party to introduce “as a part of his substantive proof, the deposition of his adversary, and it is quite immaterial that the adversary is available to testify at the trial or has testified there.”
King & King Enters. v. Champlin Petroleum Co.,
*774
Although the trial judge’s comments appear to ignore Rule 32 provisions allowing the introduction of managing agents’ deposition testimony, the record does not show any evidence that the court abused its discretion in limiting the use of depositions as substantive evidence, or that Ms. Coletti suffered any prejudice.
4
The trial court expressly stated it would permit her to use the depositions for impeachment purposes, yet she never attempted that strategy. Because Ms. Coletti could have called and questioned each of the witnesses she designated, and then used their depositions to impeach any possible inconsistent testimony, we cannot say the trial court’s refusal to allow Ms. Coletti to read the depositions into evidence affected any of her substantive rights.
See King & King,
Ms. Coletti explains her decision not to use the designated depositions for any purpose at trial by claiming the court’s decision thwarted her entire case strategy because it gave the live witnesses an opportunity to give different answers at trial and prove a “new theory of the case.” We find this rationale unpersuasive. If, as Ms. Coletti claims, the witnesses would have changed or fabricated their testimony at trial, plaintiffs counsel could easily have used their recorded deposition testimony to effectively impeach their responses. We see no reason to reverse the jury verdict merely because Ms. Coletti insists the trial court should have allowed her to utilize her own method of getting her point across, “when another, at least equally effective method of getting that same point across was easily available.”
King & King,
3. Dismissal of Claims for Fraudulent Creation of Evidence and Intentional Infliction of Emotional Distress
Ms. Coletti contends the trial court erred when it dismissed her claim of fraudulent creation of evidence before trial and declined to instruct the jury on her related claim of intentional infliction of emotional distress. 6 The trial court dismissed the fraudulent creation of evidence claim because it found no precedent for such a claim under Wyoming *775 law. The intentional infliction of emotional distress claim was dismissed after the trial found insufficient evidence of extreme and outrageous conduct to support the claim, and because of the potential for a double recovery with the mental distress factor already considered as part of the retaliatory discharge claim. We consider these issues in turn.
A. Dismissal of Fraudulent Creation of Evidence Claim
With regard to the alleged fraudulent creation of evidence, Ms. Coletti argues the trial court had a duty to apply the law of the jurisdiction, and in the event the state law question was unsettled, it should have either predicted what the state’s highest court would decide or certify the question to the state’s highest court. On this point, she is correct. Since the case before the trial court was a diversity action, Wyoming law governs the issues. Accordingly, the trial court had an obligation to apply Wyoming law or, if Wyoming law is silent, rule as it believed the Wyoming Supreme Court would rule.
Fields v. Farmers Ins. Co.,
The trial court stated as justification for dismissing Ms. Coletti’s fraudulent creation of evidence claim against Cudd:
It is not the business of a federal judge to establish the law or precedent of a jurisdiction. ...
Having found no case law, no statute in this jurisdiction that would recognize a tor-tious creation of fraudulent documents claim, the Court declines to allow one in this ease and will dismiss this claim.
Although the court made an unfortunate choice of words that insufficiently articulated its duty to predict state law in unsettled areas, we nevertheless find a fair reading of the trial court’s ruling, within the context of the entire record, reveals a careful consideration of Wyoming law and an implied determination that the Wyoming Supreme Court has not, and would not, recognize a previously nonexistent fraudulent creation of evidence cause of action.
Our own independent examination of Wyoming law also reveals no legal basis to support either a spoliation of evidence claim or Ms. Coletti’s creative new claim for fraudulent creation of evidence. Rather than recognize an independent tort claim for fraudulent creation of evidence (or spoliation of evidence), Wyoming law allows courts to draw an adverse inference against a party responsible for losing or destroying evidence.
See Kieffer v. Weston Land, Inc.,
B. Intentional Infliction of Emotional Distress
Ms. Coletti also argues the court misapplied
Leithead v. American Colloid Co.,
We are uripersuaded by Ms. Coletti’s argument. Even though her claim of intentional infliction of emotional distress may have had an independent basis arising separate from her retaliatory discharge claim, that still does not negate the fact the trial court found no evidence to support the claim. When a court rules as a matter of law that a party introduced insufficient evidence to warrant the jury’s consideration of a claim, it is perfectly within the court’s discretion to decline to instruct the jury on the matter.
See Aves v. Shah,
4. Exclusion of Former Employee and Untimely Designated Witness Testimony
Ms. Coletti contends the trial court improperly excluded the testimony of Mr. Ronald Orr and Mr. James Bresnahan regarding the circumstances of their discharge from employment as inadmissible evidence to show either a pattern or practice of retaliatory discharge or Cudd’s improper motive or intent for firing her. The court prohibited Mr. Orr from testifying upon Cudd’s objection that the evidence was either irrelevant or unfairly prejudicial. Mr. Bresnahan, on the other hand, was never permitted to take the stand, because his designation as a newly discovered witness was untimely under the provisions of the pre-trial order. For purposes of our discussion, we need not address the timeliness of Mr Bresnahan’s designation, because we assume the court would have declined to allow Mr. Bresnahan’s testimony' — even if he had been timely designated — for substantially the same reasons as it articulated in refusing to allow Mr. Orr to testify.
We review the district court’s decision not to admit the testimony for abuse of discretion.
United States v. Wacker,
Fed.R.Evid. 404(b) generally excludes evidence of other acts for the purpose of proving a person acted similarly on other occasions. This rule applies to both civil and criminal proceedings,
Carson v. Polley,
The record indicates the trial court expressly considered whether the testimonial evidence was admissible to show Cudd’s intent or a pattern and practice of retaliatory discharge. The court was disturbed, as are we, that Mr. Orr’s proposed testimony relates to events that occurred after Ms. Colet-ti was discharged. Testimony about later events is even less relevant and of less probative value than evidence of prior bad acts generally, because the logical relationship between the circumstances of the character testimony and the employer’s decision to terminate is attenuated. The trial court found the evidence of later events unreliable, and excluded it as overly prejudicial. We defer “to the trial court’s judgment because of its firsthand ability to view the witness or evidence and assess credibility and probative value,”
McEwen,
5. Sanctions for Failure to Comply with Discovery Orders
As a final matter, Ms. Coletti seeks a reversal of the trial court’s decision denying sanctions for Cudd’s alleged violation of discovery orders. Ms. Coletti argues a “deliberate, continuous, repetitive, intentional, and willful violation of explicit [ejourt [orders occurred regarding discovery,” and requests sanctions in the form of attorneys’ fees for the cost of procuring compliance with the discovery orders. Ms. Coletti alleges Cudd intentionally withheld critical documents and answers to interrogatories throughout the discovery process, and failed to produce a critical original handwritten memorandum.
As a general rule, “[t]he imposition of sanctions for abuse of discovery under Fed.R.Civ.P. 37 is a matter within the discretion of the trial court.”
Orjias v. Stevenson,
CONCLUSION
Having found no reversible error, we AFFIRM the decision of the district court in all respects.
Notes
. The actual instruction is mysteriously absent from the record on appeal, so we quote from Appellee's Brief at 1.
. There is some dispute over whether Ms. Coletti properly preserved this issue for appeal. She did not attempt to introduce the depositions at trial or make an offer of proof when arguing to admit the deposition testimony during pre-trial proceedings. However, because it does not affect our holding, we need not reach these issues. For the purpose of our discussion on this point, wc assume without deciding a proper offer was made, and the issue was preserved for appeal.
See Angelo,
. We assume without deciding Ms. Coletti’s designated deponents qualify as managing agents under Fed.R.Civ.P. 32(a)(2).
. Perhaps the reason the trial court ignored Fed. R.Civ.P. 32 is that Ms. Coletti failed to present the rule as justification for introducing the managing agents’ testimony. Instead, Plaintiff’s counsel repeatedly argued the depositions are admissible as statements against interest by defendant's employees. While the statements by the defendant's employees may qualify for admission as an exception to the hearsay rule under Fed.R.Evid. 804(b)(3), that does not mean the depositions are then automatically available for the Plaintiff to read into evidence in lieu of live testimony.
. Ms. Coletti attempts to distinguish King & King, arguing the court refused to admit the depositions in that case to avoid needless, repetitious testimony from witnesses who had already been on the stand. However, we find the principles from King & King regarding the court's control over deposition testimony every bit as applicable to the present case because the excluded depositions would have been similarly repetitive and unnecessary if Ms. Coletti exercised her power to call the available deponents to the stand.
.Ms. Coletti analogizes her "fraudulent creation of evidence” claim to a "spoilation of evidence” theory (also referred to as "spoliation,” see Black's Law Dictionary 1401 (6th ed.1990)). Spoliation of evidence encompasses a third party's intentional or negligent destruction or loss of tangible evidence, which impairs a person's ability to prove or defend a prospective civil action. Ms. Coletti does not argue evidence was destroyed, but that Cudd fraudulently created evidence for its advantage, and that the Wyoming Supreme Court would recognize her proposed cause of action.
. When confronted with an unsettled question of state law, the law does not require the trial court to certify the question to the state supreme court. The decision whether to certify a question of state law to the state supreme court is left to the discretion of the district court.
Lehman Brothers
v.
Schein,