Monfore v. Phillips, 778 F.3d 849

Background

Sherman Shatwell went to hospital with neck pain; tests suggested treatable throat cancer but he was not informed and was sent home; diagnosis learned a year later, too late.
Mrs. Shatwell sued multiple defendants for negligence; defendants initially presented a unified defense through discovery and in the parties’ final pretrial submissions.
Two weeks before trial several co-defendants settled; Dr. Kenneth Phillips remained as a defendant and sought, days before jury selection, to amend the final pretrial order to assert a new defense blaming the settling defendants.
The district court denied Dr. Phillips’s motion to amend the final pretrial order (which would have added jury instructions, exhibits, and witnesses to pursue comparatory fault/contributory negligence against the settled parties).
The jury found Dr. Phillips liable for over $1 million; he appealed, arguing the denial of the Rule 16(e) amendment and related evidentiary and instructional rulings were reversible error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by denying a motion to amend the final pretrial order under Rule 16(e) to add a new defense after co-defendants settled	The denial was erroneous because the late partial settlement produced manifest injustice; amendment was necessary to present comparative-fault evidence	Denial proper because defendants had long presented a united defense, did not designate evidence/witnesses on co-defendants’ negligence in the pretrial order, and late change would unfairly prejudice plaintiff and disrupt trial	Affirmed: no abuse of discretion; Rule 16(e) standard not met and amendment could prejudice plaintiff or delay trial
Whether trial court erred by excluding questions to plaintiff’s expert suggesting negligence by settled defendants	Plaintiff contends the expert testimony opened the door to such questions; exclusion hindered Phillips’ ability to compare fault	Exclusion was proper because the Rule 16(e) ruling limited issues and the court found no opening; questions were collateral to the designated trial plan	No abuse of discretion; exclusion upheld as part of enforcing the pretrial order
Whether the court erred by refusing an instruction to apportion liability/damages to settling defendants	Plaintiff argues jury should apportion fault among all tortfeasors	Defendant argues apportionment required putting settling defendants’ liability before the jury, which he failed to timely do	Denial affirmed: under Oklahoma law a settlement by a party not submitted to the jury cannot be used to credit or reallocate liability absent jury findings against the settlor
Whether exclusion of evidence about decedent’s tobacco/alcohol use was erroneous	Plaintiff said such evidence was irrelevant to liability but potentially relevant to damages; defendant wanted it to challenge causation/prognosis	Defendant argued tobacco/alcohol evidence impacted causation/prognosis and thus should be admitted	Affirmed: court did not abuse its wide discretion under Rule 403; no competent proof linked substance use to outcome for that cancer in this trial, so evidence would be more prejudicial than probative

Key Cases Cited

Meadow Gold Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir. 1960) (discussing emphasis on pretrial hearings and statements to define trial issues)
Sill Corp. v. United States, 343 F.2d 411 (10th Cir. 1965) (pretrial orders should not be treated as inflexible hoops of steel)
Case v. Abrams, 352 F.2d 193 (10th Cir. 1965) (policy reasons against easy modification of pretrial orders)
Koch v. Koch Indus., Inc., 203 F.3d 1202 (10th Cir. 2000) (abuse-of-discretion review and factors for amending pretrial order)
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523 (10th Cir. 1996) (issue not listed in pretrial order treated as motion to amend)
Moss v. Feldmeyer, 979 F.2d 1454 (10th Cir. 1992) (factors for allowing late amendment and prejudice analysis)
R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306 (10th Cir. 1987) (affirming holding party to a deliberate choice not to pursue a theory)
Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002) (motions to amend made prior to trial generally less disruptive)
United States v. Burch, 153 F.3d 1140 (10th Cir. 1998) (standard for reviewing discretionary evidentiary rulings)
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008) (district courts have particularly wide discretion under Rule 403)
Pain v. Sims, 283 P.3d 343 (Okla. Civ. App. 2012) (under Oklahoma law, a pretrial settlement not submitted to the jury cannot be used as a credit against verdict)