           Case: 17-10977   Date Filed: 12/04/2017   Page: 1 of 12




                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10977
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:15-cv-00202-WCO



BRANDY N. MCALISTER-JONES,

                                                            Plaintiff - Appellee,

                                  versus

DALE EUGENE FOOTE,

                                                         Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (December 4, 2017)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Brandy McAlister-Jones (“Plaintiff”) sued Dale Eugene Foote (“Defendant”)

for injuries she suffered from a car accident. Throughout pretrial proceedings,

Plaintiff indicated to Defendant that she was pursuing damages for her future lost

income on the grounds that she was unable to continue working at her old jobs

because of her injuries. But in the final pretrial order, Plaintiff’s itemized damages

included only a few hundred dollars for lost wages—a few orders of magnitude

less than the tens of thousands of dollars Plaintiff had claimed to be missing out on

annually. Accordingly, upon a motion from Plaintiff during trial, the district court

amended the pretrial order to include Plaintiff’s claim for future lost wages,

admitted evidence on the issue, and instructed the jury on it as well—all over

Defendant’s objections. The jury returned a verdict in favor of Plaintiff.

Defendant moved for a new trial, contending that the district court had erred by

admitting evidence on Plaintiff’s future lost wages and by instructing the jury on

the issue. The district court denied the motion on the ground that, after amending

the pretrial order, the evidence and jury instructions were relevant to an issue

properly before the jury.

      On appeal, Defendant contends that the district court erred by amending the

pretrial order and by improperly analyzing Defendant’s motion for a new trial.

Because the district court was well within its discretion to amend the order and


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properly addressed the issues in Defendant’s motion for a new trial, we affirm the

district court’s rulings.

I.     BACKGROUND

       In October 2013, while driving eastbound down Georgia Highway 11,

Defendant rear-ended Plaintiff and her husband while they were stopped waiting to

turn off the highway. Two years later, Plaintiff, a Tennessee resident, filed this

lawsuit against Defendant, a Georgia resident, for negligence. In her complaint,

Plaintiff claimed to have sustained serious injuries from the accident and sought

damages, including “past, present, and future lost income.” Plaintiff’s initial

disclosures, filed in December 2015, also indicated that she was seeking “Future

Lost Wages,” in addition to past lost wages and other damages. In February 2016,

Plaintiff’s answers to interrogatories identified that she was seeking lost wages but

did not specify whether it was for past or future lost income.

       In May 2016, the parties submitted to the district court a jointly-prepared

pretrial order that stipulated to Defendant’s responsibility for the accident and

limited the issues at trial to whether the accident was the proximate cause of

Plaintiff’s injuries and the amount of damages. The proposed pretrial order also

listed “each item of damage claimed.” The order expressly stated that “[i]tems of

damage not identified in this manner shall not be recoverable” and further noted


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that the order “supersedes the pleadings which are hereby amended to conform

hereto.” Plaintiff’s itemized damages listed only $492.28 for “lost wages” and did

not specify whether this was past or future lost income.

      On June 2, 2016, Defendant’s counsel deposed Plaintiff. Before the

deposition, Plaintiff’s counsel told Defendant’s counsel that Plaintiff had lost her

job. As a result of this conversation, Plaintiff’s counsel believed that it was clear

that Defendant knew Plaintiff was seeking future lost wages. During Plaintiff’s

deposition, Defendant’s counsel asked a number of questions about Plaintiff’s

income before the accident, her current income, and her expected future income to

“get an idea of the loss.” Shortly after the deposition, on June 22, the district court

held a pretrial conference and entered the pretrial order without change. That is,

the order listed only $492.28 as “lost wages.” Nevertheless, in October 2016, two

days before trial, Plaintiff submitted proposed jury instructions that requested two

separate instructions on future lost earnings.

      At trial, Defendant’s primary theory of defense was that Plaintiff’s injuries

were caused by pre-existing medical issues either unrelated or not attributable

solely to the accident. Plaintiff testified, but as she began testifying that she had

lost her job because of the accident and asserted a corresponding decrease in her

annual income, Defendant’s counsel objected that this evidence was beyond the


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scope of the pretrial order. Plaintiff’s counsel responded that the amount listed in

the pretrial order was only for past lost wages, not future lost wages, and moved to

amend the pretrial order to include damages for future lost income. The district

court overruled Defendant’s objection and allowed Plaintiff to testify to what her

anticipated future earnings had been before the accident. The district court and

both parties acknowledged that, by doing so, the district court implicitly amended

the pretrial order to include Plaintiff’s claim for future lost earnings. Plaintiff

proceeded to testify about how she now earned roughly $40,000 less per year as a

result of being unable to work at her previous jobs because of her injuries.

      By the end of trial, Plaintiff had presented evidence and argued for

approximately $2,280,000 in damages, including $960,000 in future lost earnings,

$160,000 in past and future medical expenses, and $1,160,000 for pain and

suffering. Defendant objected to the proposed jury instructions on future lost

wages, but the court overruled this objection. The jury returned a verdict in favor

of Plaintiff for $1,070,288. The jury used a general verdict form that did not

indicate how much of the award was attributable to any specific type of damages.

      Defendant moved for a new trial on the ground that the district court had

erred by improperly admitting evidence of Plaintiff’s future lost wages and

instructing the jury on the issue. Defendant’s counsel attached an affidavit to the


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motion stating that because he had relied on the pretrial order, he was not prepared

to defend against a claim for future lost wages, and he would have conducted the

trial differently had he been aware of it. The district court denied the motion

noting that because Defendant’s counsel had been made aware that Plaintiff lost

her job before her deposition, he was able to depose Plaintiff on the issue of future

lost earnings. Thus, Defendant was not prejudiced by amending the pretrial order

to include the claim. Because amendment was appropriate, the court concluded

that Plaintiff’s future lost wages were properly at issue in the trial, and the

admission of relevant evidence and instruction of the jury on the issue were

therefore correct.

      Defendant appealed to this Court under 28 U.S.C. § 1291, arguing that the

district court erred by amending the pretrial order to include Plaintiff’s claim for

future lost wages and improperly analyzing the issue when denying Defendant’s

motion for a new trial.

II.   STANDARD OF REVIEW

      We review a district court’s decision to amend a final pretrial order for abuse

of discretion. FN Herstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080 (11th Cir.

2016) (citing Morro v. City of Birmingham, 117 F.3d 508, 513, 515–16 (11th Cir.

1997)). A district court abuses its discretion when “its action could be deemed


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arbitrary,” id. (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.

1979)), or if it misapplies the law, Rodriguez v. City of Doral, 863 F.3d 1343, 1349

(11th Cir. 2017) (citing Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t

of Health and Rehab. Services, 225 F.3d 1208, 1218 (11th Cir. 2000)). In the

context of amending a final pretrial order, we have recognized that “[a] district

court has ‘broad discretion’ to construe its own pretrial orders and we afford

substantial deference to a trial court’s decision to allow (or disallow) amendments

to pretrial orders.” Transamerica Leasing, Inc. v. Inst. of London Underwriters,

430 F.3d 1326, 1334 (11th Cir. 2005) (quoting Mut. Serv. Ins. Co. v. Frit Indus.,

Inc., 358 F.3d 1312, 1323 (11th Cir. 2004)). Thus, “[t]here is a presumption that a

pretrial order will be amended in the interest of justice and sound judicial

administration provided there is no substantial injury or prejudice to the opposing

party or inconvenience to the court.” United States v. Varner, 13 F.3d 1503, 1507–

08 (11th Cir. 1994). If amendment would cause substantial injury to a party or

inconvenience to the court, then a court may amend the pretrial order only to avoid

manifest injustice. Id. at 1508; see Fed. R. Civ. P. 16(e).

      We review a district court’s denial of a motion for a new trial for abuse of

discretion as well. Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 807

(11th Cir. 2017) (citing Hercaire Int’l, Inc. v. Argentina, 821 F.2d 559, 562 (11th


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Cir. 1987)). Deference to the district court is “particularly appropriate” in

instances like this where the court denied the motion and left the jury’s verdict

“undisturbed.” McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241,

1255 (11th Cir. 2016) (quoting Rosenfield v. Wellington Leisure Prods., Inc., 827

F.2d 1493, 1498 (11th Cir. 1987)).

III.   DISCUSSION

       A.    Motion to Amend the Pretrial Order

       Defendant raises two grounds in support of his challenge to the district

court’s grant of Plaintiff’s motion to amend the pretrial order. First, Defendant

contends that he suffered substantial prejudice because he relied on the pretrial

order in crafting his trial strategy and was not prepared to defend against a claim

for future lost wages. Had he been aware of Plaintiff’s claim, Defendant’s counsel

asserts that he would have explored the claim further and would have at least

presented expert testimony on the present cash value of Plaintiff’s expected future

wages.

       The record, however, indicates that Defendant was, or at least should have

been, aware that Plaintiff intended to seek recovery for future lost wages. The

complaint specifically stated that Plaintiff sought to recover damages for her “past,




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present, and future lost income.” (Emphasis added.) And her initial disclosures

listed her damages as including “Future Lost Wages.”

      After the parties submitted the pretrial order, Plaintiff was deposed in June

2016. At that point, which was five months before trial, Plaintiff’s counsel

informed Defendant’s counsel that Plaintiff had lost her job. Plaintiff’s counsel

believed it was understood from this conversation that Plaintiff intended to assert a

claim for future lost wages. That Defendant was aware of Plaintiff’s intentions is

confirmed by the questions Defendant’s counsel asked at Plaintiff’s deposition.

Defendant’s counsel inquired about when and why Plaintiff lost her old jobs and

how much she had made, what Plaintiff was currently doing for work and what her

current salary was, what she expected to make going forward, and whether she had

applied for and expected to receive disability. Notably, in the middle of this

questioning, Defendant’s counsel stated that he was asking about Plaintiff’s current

salary specifically to “get an idea of the loss here.” It is not apparent why

Defendant’s counsel would ask about Defendant’s current and projected income

unless he was aware of Plaintiff’s claim for future lost wages.

      Regardless of whether Defendant was aware of Plaintiff’s claim for future

lost wages by the time of Plaintiff’s deposition, Defendant was on notice of this

claim shortly before trial when Plaintiff requested jury instructions that included


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two instructions on future lost earnings. At no point before trial did Defendant

object, ask for a continuance, or make any effort to clarify whether Plaintiff was

pursuing future lost wages. In addition, the district court observed during trial that

it believed that Plaintiff’s claim for future lost wages was “what this case was all

about” and was “shocked” to discover that the claim was not in the pretrial order.

      Because the record reflects that Defendant was, or at least should have been,

aware of Plaintiff’s claim for future lost wages and had the opportunity to prepare

for it, we cannot conclude that Defendant suffered substantial prejudice or injury

from the district court’s amendment of the pretrial order. Cf. Hassan v. U.S. Postal

Serv., 842 F.2d 260, 263–64 (11th Cir. 1988) (holding that a district court’s

decision to allow a party to raise a defense at trial that was not included in the

pleadings was not prejudicial because the opposing party had notice that the

defense would be raised).

      Second, Defendant contends that Plaintiff would not have been prejudiced if

the district court had denied the motion to amend. But this assertion is obviously

not correct. Had the amendment not been allowed, Plaintiff would have been

prevented from presenting a significant portion of her damages. Also, because

Defendant cannot establish substantial injury, the presumption that amendment




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will be allowed applies and we need not delve further. See Varner, 13 F.3d at

1507–08.

      Because Defendant has failed to show that the district court abused its

discretion, we affirm the district court’s decision to amend the pretrial order. See

Santiago v. Lykes Bros. S.S. Co., Inc., 986 F.2d 423, 427 (11th Cir. 1993) (noting

that a district court did not abuse its discretion by instructing the jury on a theory

not included in the pretrial order).

      B.     Motion for a New Trial

      Defendant also argues that the district court abused its discretion by denying

Defendant’s motion for a new trial, relying on essentially the same grounds

Defendant used in challenging the district court’s approval of the amendment of

the pretrial order. First, Defendant asserts that the district court erred when it

concluded that Defendant was not prejudiced by the amendment. But, as already

discussed, the record supports the district court’s conclusion that Defendant was

not unfairly prejudiced because he had been given notice of Plaintiff’s claim for

future lost wages and had the opportunity to prepare to defend that claim.

      Second, Defendant contends that the district court applied the wrong legal

standard by failing to determine whether Plaintiff would have suffered manifest

injustice if she had not been allowed to amend the pretrial order. But the district


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court did conclude that denying amendment and excluding evidence on Plaintiff’s

future lost wages “would have hindered plaintiff in presenting her case on the

merits.” And, again, because Defendant cannot show that he was substantially

injured by the amendment, the district court was allowed to exercise its discretion

and amend the pretrial order. See Varner, 13 F.3d at 1507–08.

      Altogether, the district court properly analyzed Defendant’s motion for a

new trial, and we hold that the district court did not abuse its discretion in denying

the motion.

IV.   CONCLUSION

      We find no error in the district court’s amendment of the pretrial order or its

denial of Defendant’s motion for a new trial. Accordingly, we AFFIRM.




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