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 of the 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. 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. 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.
A man 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, he was sent home with a prescription for antibiotics. By the time he learned the truth a year later, it was too late. 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. 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. The district court denied the motion. At the trial's end, the jury found him liable for damages of a little over $1 million. Dr. Phillips now appeals to the United States Court of Appeals for the Tenth Circuit.
Was it proper for the court to deny the motion to amendment the pre-trial order?
In a negligence action, the Court held that the district court's refusal to amend the final pretrial order and allow the doctor his new defense was proper because his argument that he was surprised when his co-defendants left him to stand trial was without merit. The court also noted that it was further hard to ignore the prejudice to the other side since the doctor effectively sought to force the spouse to prepare for an entirely different trial on a few days' notice.