July 18, 2019

Tenth Circuit: No Abuse of Discretion to Deny Eve of Trial Amendment of Final Pretrial Order

The Tenth Circuit Court of Appeals issued its opinion in Monfore v. Phillips on Tuesday, February 10, 2015.

Sherman Shatwell went to the hospital complaining of neck pain, and although doctors determined he had throat cancer, he was not told until a year later, when it was too late to treat it. His surviving spouse and child brought negligence claims against the doctors and hospital. Two weeks before trial, a settlement was reached with some of the parties but not with Dr. Phillips. Dr. Phillips sought to amend the final pretrial order in order to claim contributory negligence by the settling parties but the trial court denied his motion. The jury found Dr. Phillips liable for negligence and awarded over $1 million in damages. Dr. Phillips appealed, arguing the district court’s denial of his motion to amend was reversible error.

The Tenth Circuit, in a majority opinion penned by Judge Gorsuch, conducted an abuse of discretion review and found none. The majority opinion admonished Dr. Phillips for not anticipating an eve of trial settlement by some of his co-defendants, and was unsympathetic to what it saw as Dr. Phillips’ regret for his decision to present a unified front with his co-defendants. The majority opinion also pointed out the prejudice to the plaintiff that could have come from Dr. Phillips’ eve of trial modification of the final pretrial order. Finding that even though the district court could have allowed Dr. Phillips to “rejigger his defense at the last minute,” the majority opinion concluded that outcome was far from mandatory. The Tenth Circuit affirmed the judgment of the district court.

Judge Moritz wrote a separate concurrence to point out that this was a closer call than the majority opinion implied. Judge Moritz evaluated the appeal under the four-pronged Koch analysis and found that the majority opinion focused too much on lack of surprise to Dr. Phillips rather than prejudice to the opposing party. Judge Moritz pointed out that although Dr. Phillips should not have been surprised by the settlement of some of the co-defendants, likewise the plaintiff should not have been surprised that Dr. Phillips would seek to revise his trial strategy in light of the settlement. Nevertheless, Judge Moritz found Dr. Phillips failed to satisfy his double burden of proving both manifest injustice and abuse of discretion, and concurred with the majority affirmance of the district court’s decision.

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