In a federal appellate court decision filed on February 10, 2015, the United States Court of Appeals for the Tenth Circuit upheld the district court’s refusal to allow a medical malpractice defendant to amend a final pretrial order after the other medical malpractice defendants settled the claims against them shortly before trial.
The Appellate Court held, “A district court does not abuse its discretion in holding a party to a long-scheduled trial and to the strategy he articulated though pleading and discovery and in the face of such obvious risks, especially when indulging an eleventh-hour strategic shift would mean either imposing prejudice on the other side or inviting more delay. So beware: when a fellow litigant settles on the eve of trial you can’t bank on the right to claim surprise and rewrite your case from top to bottom.”
The Underlying Facts
A man went to an Oklahoma hospital complaining of neck pain, where testing indicated that he probably had throat cancer that was treatable but required immediate attention. The man was never told about his condition but instead was sent home with a prescription for antibiotics. By the time the man learned the truth one year later, it was too late.
The man’s widow filed a medical negligence case against the hospital and the doctors. All of the medical malpractice defendants maintained a unified front, denying that any of them had been negligent, during the entire twenty months when motions were filed and during the discovery process, including at the time when the defendants filed their submissions for the final pretrial order.
Two weeks before the scheduled trial, some of the defendants settled with the plaintiff. One of the remaining defendants then sought permission from the trial court just days before the trial to amend the pretrial order so that he could change his trial strategy by arguing that the settling defendants were medically negligent and that they should be held responsible for the plaintiff’s damages.
The non-settling defendant filed his motion to amend the final pretrial order to be allowed to introduce new jury instructions, exhibits, and witnesses in support of his new trial strategy, which the district court judge denied. At the conclusion of the medical malpractice trial, the federal medical malpractice jury found in favor of the plaintiff and against the non-settling defendant, awarding just over $1 million in damages. The non-settling defendant appealed, arguing that the trial court’s refusal to amend the final pretrial order to allow his new defense was reversible error.
The Appellate Court stated that final pretrial orders seek to formulate a trial plan, to tame exuberant modern pretrial practices, and to focus the mind on the impending reality of trial. Fed. R. Civ. P. 16(e). The Appellate Court further stated that final pretrial orders “encourage both sides to edit their scripts, peel away any pleading and discovery bluster, and disclose something approximating their real trial intentions to opposing counsel and the court. Toward those ends, the parties are often asked — as they were in this case — to specify the witnesses and exhibits, supply the proposed jury instructions, and identify the claims and defenses they actually intend to introduce at trial.”
Noting that a final pretrial order may be amended “only to prevent manifest injustice,” the Appellate Court stated that the standard for modifying a final pretrial order is as high as it is to ensure everyone involved has sufficient incentive to fulfill the order’s dual purposes of encouraging self-editing and providing reasonably fair disclosure to the court and opposing parties of their real trial intentions, and that the Appellate Court will review a district court’s decision to amend or not to amend a pretrial order only for abuse of discretion.
In the present case, the Appellate court determined that “[l]ike many before him in multidefendant cases, [the non-settling defendant] initially saw profit in presenting a united front with his co-defendants only to regret the decision later,” but it should not have come as a surprise that other defendants may settle close to trial. Furthermore, the plaintiff would have been prejudiced by forcing the plaintiff to prepare for an entirely different trial on a few days’ notice: “the plaintiff and her lawyers had some reasonable expectations about what trial would look like and the sort of evidence they would — and would not — need. They knew they’d need to prove negligence by the defendants who chose to go to trial but they wouldn’t have to worry about finger pointing between defendants; trial would present one set of challenges but not another.”
The Appellate Court affirmed the medical malpractice jury’s verdict.
Source Monfore v. Phillips, No. 13-7075.
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