Caseflicks

Court of Appeals for the Tenth Circuit • 2015

Monfore v. Phillips

778 F.3d 849 | 90 Fed. R. Serv. 3d 1609 | 2015 U.S. App. LEXIS 2186

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Takeaway

In short, this case confirms that a party ordinarily cannot use an eve-of-trial settlement to revive a comparative-fault strategy it deliberately omitted from the final pretrial order.

Background

Sherman Shatwell went to a hospital complaining of neck pain. Testing indicated probable throat cancer that was treatable but required prompt attention. Because of a series of failures in communicating the results, however, Shatwell was discharged with antibiotics and was not told about the cancer. He learned of it about a year later, when it was too late for effective treatment.

Austin Monfore, individually and as Shatwell's surviving child, brought negligence claims against Dr. Kenneth Phillips, his employer, and other medical defendants. For roughly twenty months of discovery and motion practice, the defendants maintained a united position: they denied that any defendant had been negligent. Their proposed final pretrial order likewise did not identify a defense blaming one defendant for another's negligence, designate supporting experts or exhibits, or request comparative-fault instructions.

Two weeks before trial, some codefendants settled. Dr. Phillips did not. Days before jury selection, he moved to amend the final pretrial order so that he could assert that the settling defendants were negligent and seek to place responsibility on them. The proposed amendment included new witnesses, exhibits, and jury instructions. The district court denied the motion, limited related evidence and instructions at trial, and the jury returned a verdict against Phillips of slightly more than $1 million. Phillips appealed.

Issues

Issue #1

Whether the district court abused its discretion by refusing to amend the final pretrial order after some codefendants settled shortly before trial.

Holding

No. The district court acted within its discretion in holding Dr. Phillips to the trial strategy he had maintained throughout the litigation.

Reasoning

Rule 16(e) allows amendment of a final pretrial order only to prevent manifest injustice. Unlike earlier case-management orders, a final pretrial order is designed to establish a concrete trial plan: it narrows claims and defenses, identifies the evidence and witnesses actually to be used, and gives both the court and opposing parties fair notice of the impending trial.

Phillips's proposed comparative-fault defense was not based on newly discovered facts. For nearly two years, including in the parties' final-pretrial submissions, the defendants collectively denied negligence and did not develop or disclose a theory that particular codefendants caused Shatwell's injuries. A defendant's decision to present a united front in multiparty litigation is a strategic choice, and the possibility that a codefendant may settle before trial is foreseeable rather than a genuine surprise.

Allowing the amendment days before trial would have substantially altered the case the plaintiff reasonably expected to try. The plaintiff had prepared to prove Phillips's negligence, not to litigate new accusations among defendants supported by new experts, evidence, and instructions. The district court could permissibly avoid either prejudicing the plaintiff or delaying a long-scheduled trial.

Appellate review of a decision to modify a pretrial order is for abuse of discretion. Although the district court could have chosen to allow Phillips to change course and granted the plaintiff additional preparation time, Rule 16(e) did not require that result on these facts.

Issue #2

Whether the district court erred by barring Phillips from eliciting testimony that the settling defendants were negligent and by refusing comparative-fault instructions.

Holding

No. These requests were properly rejected because they were attempts to introduce an unpreserved defense that the final pretrial order did not include.

Reasoning

Phillips's evidentiary and instructional arguments were collateral attacks on the denial of his Rule 16(e) motion. Once the district court properly declined to permit the new comparative-negligence theory, it could also prevent Phillips from presenting evidence and instructions whose sole purpose was to advance that excluded theory.

Phillips argued that the plaintiff opened the door to questioning an expert about the settling defendants' negligence. The district court found that the plaintiff's examination had not done so, and the Tenth Circuit's review of the transcript disclosed no abuse of discretion in that determination.

Issue #3

Whether the appellate court could reduce the verdict to account for alleged negligence by the settling defendants even though their liability was never submitted to the jury.

Holding

No. Oklahoma law does not permit a settlement credit for a settling party whose liability was not determined by the jury.

Reasoning

In this diversity action, Oklahoma law governed the requested reduction. Under Oklahoma authority, a pretrial settlement cannot be used as a credit against the verdict when the settling party's tort liability was not submitted to the jury and established.

The proper mechanism for assigning liability to a settling defendant was a comparative- or contributory-negligence claim presented to the jury. Because Phillips sought to add that theory too late and the district court properly refused the amendment, there was no basis to reapportion the jury's award after the fact.

Issue #4

Whether the district court abused its discretion by excluding evidence of Shatwell's tobacco and alcohol use.

Holding

No. The evidence was properly excluded as irrelevant to liability and insufficiently supported as relevant to damages.

Reasoning

The trial concerned the failure to notify Shatwell about cancer, not the original cause of his cancer. Thus, evidence that tobacco or alcohol may have contributed to the cancer's development did not bear on the negligence issue being tried.

Such evidence might have been relevant to damages if Phillips had presented competent evidence that Shatwell's particular use affected his prognosis or life expectancy. But Phillips did not establish a material connection between the extent of Shatwell's tobacco and alcohol use and outcomes for his type of cancer.

Given that lack of evidentiary foundation, the district court could conclude under Rule 403 that inquiries into tobacco and alcohol use carried more risk of unfair prejudice than probative value. District courts have especially broad discretion in making that balance, and the court did not exceed it here.

Concurrences

Judge Moritz

Reasoning

Judge Moritz agreed that Phillips failed to carry his dual burden: he did not establish manifest injustice under Rule 16(e) or show that the district court abused its discretion on appeal. She wrote separately because, in her view, the question was a close and fact-specific one rather than the largely one-sided matter portrayed by the majority.

She emphasized the four factors from Tenth Circuit precedent: prejudice or surprise to the opposing party, the opposing party's ability to cure prejudice, likely disruption of trial, and bad faith by the party seeking amendment. Her analysis would focus primarily on surprise and prejudice to the plaintiff, rather than on whether Phillips should have anticipated the partial settlement.

The plaintiff had consistently alleged that multiple defendants caused Shatwell's injuries and possessed the expert report and deposition testimony Phillips sought to use against the settling defendants. Phillips did not seek further discovery, the trial had not yet begun, and the proposed amendment would not necessarily have significantly disrupted trial. On those facts, the plaintiff's assertion of unfair surprise was weak and any prejudice was readily curable.

Nor did Phillips's failure to cross-designate the plaintiff's expert in anticipation of settlement establish bad faith. The district court therefore could reasonably have allowed the amendment. Still, because discretionary review permits more than one reasonable result, Judge Moritz concluded that the court was not required to grant it and concurred in affirmance.