AUSTIN MONFORE, individually and as surviving child of Sherman W. Shatwell, deceased, Plaintiff-Appellee,
KENNETH EDWARD PHILLIPS, D.O.; TAHLEQUAH EMERGENCY CONSULTANTS, PLLC, Defendants-Appellants, and JUDITH WOLFSTEIN, M.D.; DIAGNOSTIC IMAGING ASSOCIATES, INC., Defendants
Appeal from the United States District Court for the Eastern District of Oklahoma. (D.C. No. 6:11-CV-00343-JHP).
Donald H. Ziegler, III, of Hudson, Potts & Bernstein, LLP, Monroe, Louisiana (Jay Adams of Hudson, Potts & Bernstein, LLP, Monroe, Louisiana, and Bob L. Latham, S. Lance Freije, and Lindsey E. Albers of Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma, with him on the briefs), for Defendants-Appellants.
Timothy A. Hootman of Houston, Texas (Glendell Nix of Nix Law Group, PLLC, Edmond, Oklahoma, with him on the brief), for Plaintiff-Appellee.
Before GORSUCH, MURPHY, and MORITZ, Circuit Judges. MORITZ, Circuit Judge, concurring.
GORSUCH, Circuit Judge.
Sherman Shatwell went to the hospital complaining of neck pain. Tests showed he probably had throat cancer. It was treatable but required immediate attention. Thanks to a variety of bureaucratic blunders the news never made it to him. Instead, Mr. Shatwell was sent home with a prescription for antibiotics. By the time he learned the truth a year later, it was too late.
Eventually, his widowed wife pursued negligence claims against the doctors and hospital. Through twenty months of motions practice and discovery and all the way through their submissions for the final pretrial order the defendants maintained a unified front, denying any negligence by anyone. Then, two weeks before trial, some of the defendants settled. Dr. Kenneth Phillips wasn't one of those. Left to stand trial and with just days before jury selection, he sought permission to amend the pretrial order so he could revamp his trial strategy. Now he wanted to pursue a defense pinning the blame on the absent settling defendants, arguing that they were indeed negligent and that they -- not he -- should be held responsible for any damages. Dr. Phillips's motion to amend the final pretrial order sought permission to introduce new jury instructions, exhibits, and witnesses aimed at advancing this new defense. But the district court denied the motion and at the trial's end the jury found him liable for damages of a little over $1 million. Dr. Phillips now asks us to overturn the judgment, contending that the district court's refusal to amend the
final pretrial order and allow his new defense amounts to reversible error.
Final pretrial orders seek to " formulate a trial plan." Fed.R.Civ.P. 16(e). In their complaints and answers lawyers and parties today often list every alternative and contradictory claim or defense known to the law; during discovery they sometimes depose every potential witness still breathing and collect every bit and byte of evidence technology, time, and money will allow. Final pretrial orders seek to tame such exuberant modern pretrial practices and focus the mind on the impending reality of trial. " The casual pleading [and discovery] indulged by the courts under the Federal Rules . . . has quite naturally led to" -- some might say required -- " more and more emphasis on pre-trial hearings and statements to define the issues" for trial. Meadow Gold Prods. Co. v. Wright, 278 F.2d 867, 868-69, 108 U.S.App.D.C. 33 (D.C. Cir. 1960). Leaving the reins so loose at the front end of the case requires some method of gathering them up as the end approaches. At trial you just can't argue every contradictory and mutually exclusive claim or defense you were able to conjure in your pleadings: juries would lose faith in your credibility. Neither can you present the millions of documents and the scores of witnesses you were able to dig up in discovery: no sensible judge would tolerate it. 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.
While pretrial orders entered earlier in the life of a case often deal with interstitial questions like discovery staging and motions practice and are relatively easy to amend as a result, a final pretrial order focused on formulating a plan for an impending trial may be amended " only to prevent manifest injustice." Fed.R.Civ.P. 16(e). Even that standard isn't meant to preclude any flexibility -- trials are high human dramas; surprises always emerge; and no judge worth his salt can forget or fail to sympathize with the challenges the trial lawyer confronts. For all our extensive pretrial procedures, even the most meticulous trial plan today probably remains no more reliable a guide than the script in a high school play -- provisional at best and with surprising deviations guaranteed. See, e.g., Sill Corp. v. United States, 343 F.2d 411, 420 (10th Cir. 1965) (pretrial orders should not be treated as " hoops of steel" ). At the same time, 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 alike of their real trial intentions. See, e.g., Case v. Abrams, 352 F.2d 193, 195 (10th Cir. 1965) (" A policy of too-easy modification not only encourages carelessness in the preparation and approval of the initial order, but unduly discounts it as the governing pattern of the trial." (quoting A. Sherman Christenson, The Pre-Trial Order, 29 F.R.D. 362, 371 (1961))). This court will review a district court's decision to amend or not to amend a pretrial order only for abuse of discretion. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000).
We see nothing like that here. Dr. Phillips says that he was surprised when his co-defendants left him to stand trial and that the court was insufficiently sympathetic to his desire to revamp his trial strategy in light of the last-minute settlement. But can a partial settlement really come as a surprise in an age when virtually all cases settle in part or in whole, many on the eve of trial? Especially in multiparty litigation, where an incentive exists to break ranks, settle relatively cheaply, and leave others on the hook before the jury? The truth is, what happened in this case was hardly unforeseeable. Like many before him in multi-defendant cases, Dr. Phillips initially saw profit in presenting a united front with his co-defendants only to regret the decision later. United front defenses often present a tempting choice at the outset of multiparty cases and through discovery. Parties can pool their resources and efforts in joint defense arrangements. Besides, no one likes to throw overboard someone else in the same boat. But the complications associated with this strategic choice often come home to roost as trial nears. An attractive partial settlement may be dangled before one defendant and not others. The settling defendant may get a good deal, replenish an opponent's litigation coffers depleted through exhausting pretrial litigation, and leave others exposed at trial for the bulk of the plaintiff's damages. Remaining defendants can be left wishing for a defense or evidence or witnesses forgone. If a remaining defendant's attorney counted on a colleague working for a settling party to do the heavy lifting at trial he may feel flat-footed when it comes to examining witnesses and arguing motions. Even if all the defendants do go to trial, failing to obtain experts and gather evidence to show contributory negligence by co-defendants can exact its toll and lead to regret. Multiparty litigation presents a variety of collective action problems and other strategic pitfalls and those Dr. Phillips encountered here are well known, not the stuff of surprise. See, e.g., Manual for Complex Litigation (Fourth) § 13.21 (2004), 2004 WL 258728, at *1 ( settling with one of many adverse parties on the eve of trial to weaken another party's position is " a common and legitimate litigation ...