Hardin v. Manitowoc-Forsythe Corp.

Brief Fact Summary.

Plaintiff filed a product liability action against two Defendants. At the close of trial, the trial judge proposed instructing the jury to include various additional “phantom parties” as Defendants in allocating comparative fault. Plaintiff objected; the trial court overruled the objection. The trial court concluded that the issue of fault of the phantom parties had been tried by consent. The jury allocated fault among Plaintiff, named Defendants and the “phantom parties.”

Synopsis of Rule of Law.

A post-judgment amendment of a pretrial order to conform to the evidence is permitted if an issue was tried with the express or implied consent of the parties, and not over objection.

Facts.

Plaintiff filed a product liability action against two Defendants – (1) an entity that ordered crane involved in an accident from its parent corporation and (2) the maker of a jack. At the close of trial, the trial judge proposed instructing the jury to include various phantom parties in allocating fault. Plaintiff’s objection was overruled; the trial court concluded that the issue of fault of the phantom parties had been tried by consent and would be treated as if it had been raised by the pleadings under Federal Rule of Civil Procedure 15(b). The jury allocated fault among plaintiffs, defendants and several “phantom parties” who were not named as parties to the lawsuit.

Issue.

Did the trial court abuse its discretion in determining that the issue of fault of the phantom parties was tried by consent so that it would be treated as if it had been raised by the pleadings under Federal Rule of Civil Procedure 15(b)?

Held.

Yes and no. As to one of the phantom parties, there was no abuse of discretion in finding that the issue of its fault was tried by consent. As to another phantom party, Plaintiff had inadequate notice that the fault of that party was at issue — the court abused its discretion in ruling that Plaintiff consented to trial of the issue of that party’s fault.

Discussion.

Plaintiff consented to trial of the issue of the fault of one phantom party, thereby impliedly amending the pretrial order; plaintiff was put on notice that the party’s fault was in issue based on discovery conducted more than a year before trial, as well as the proceedings at trial. Plaintiff had inadequate notice that the fault of another phantom party was at issue; ruling that Plaintiff consented to trial of the issue of this party’s fault was an abuse of discretion.