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Monfore v. Phillips

Citation. 778 F.3d 849 (10th Cir. 2015)
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Brief Fact Summary.

Plaintiff pursued negligence claims against Defendants after they failed to inform her deceased husband of his cancer when it was still treatable. Through twenty months of motions, discovery, and all the way through their submissions for the final pretrial order, Defendants denied any negligence. Two weeks before trial, some of the Defendants settled. Just days before jury selection, Defendant Phillips sought permission to amend the pretrial order. The district court denied the motion. At the trial’s end, the jury found him liable for damages of a little over $1 million. Defendant Phillips appealed to the United States Court of Appeals for the Tenth Circuit.

Synopsis of Rule of Law.

Under FRCP Rule 16(e), final pretrial orders may only be amended to prevent manifest injustice.


Sherman Shatwell was treated at a hospital for complaints of neck pain. The hospital performed tests that showed that Shatwell likely had throat cancer which was treatable at the time. Shatwell never received the test results and went home with a prescription for antibiotics. Shatwell learned about the diagnosis a year later, at which time the cancer was no longer treatable. After Shatwell passed away, Plaintiff sued Defendants. For almost two years of pretrial litigation, Defendants denied negligence. Defendants continued these assertions in their submissions for the final pretrial order. Two weeks before trial, some of Defendants settled. Defendant Phillips subsequently moved to amend the pretrial order to allow the presentation of a new theory that the settling defendants were negligent. The trial court denied the motion, and the jury found against Defendant Phillips. The jury awarded Plaintiff approximately $1 million. Defendant Phillips appealed the denial of leave to amend the pretrial order to the United States Court of Appeals for the Tenth Circuit.


Under FRCP Rule 16(e), may final pretrial orders be amended to prevent manifest injustice?


Yes. The court held that the district court’s judgment was proper because Defendant Phillips’ argument that he was surprised when his co-defendants left him to stand trial was without merit.


Under FRCP Rule 16(e), final pretrial orders may only be amended to prevent manifest injustice. A final pretrial order is to formulate a trial plan, and helps focus the actual trial on the issues that need to be adjudicated. During discovery and pleadings, parties may assert all imaginable claims and defenses and seek every piece of evidence available. Final pretrial orders disclose the essence of the theories and evidence that will be presented at trial. For this reason, final pretrial orders can only be amended to prevent manifest injustice. Trial courts may decide whether to permit an amendment of the final pretrial order. A court of appeals reviews these decisions for abuse of discretion.

Here, Defendant Phillips claimed that he was surprised by the other Defendants settling. However, it is common for defendants to settle on the eve of trial, especially in cases that involve multiple defendants. Defendant Phillips decided to continue with the united-front defense (which had well-known risks) through the litigation. Moreover, allowing a party to completely change strategies and theories a few days before trial would greatly prejudice the other side. Plaintiff spent almost two years preparing for a trial based on a strategy of proving the negligence of Defendants without any anticipation of Defendant Phillips’ new defense of shifting blame. Although the trial court had the discretion to allow an amendment of the final pretrial order, it was not required to allow any amendment. Accordingly, the judgment of the trial court is affirmed.

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