                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                           February 10, 2015
                                  PUBLISH                 Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 AUSTIN MONFORE, individually and
 as surviving child of Sherman W.
 Shatwell, deceased,

       Plaintiff-Appellee,

 v.

 KENNETH EDWARD PHILLIPS,
 D.O.; TAHLEQUAH EMERGENCY
 CONSULTANTS, PLLC,                                 No. 13-7075

       Defendants-Appellants,

 and

 JUDITH WOLFSTEIN, M.D.;
 DIAGNOSTIC IMAGING
 ASSOCIATES, INC.,

       Defendants.



                 Appeal from the United States District Court
                    for the Eastern District of Oklahoma
                       (D.C. No. 6:11-CV-00343-JHP)


Donald H. Ziegler, III, of Hudson, Potts & Bernstein, LLP, Monroe, Louisiana
(Jay Adams of Hudson, Potts & Bernstein, LLP, Monroe, Louisiana, and Bob L.
Latham, S. Lance Freije, and Lindsey E. Albers of Latham, Wagner, Steele &
Lehman, P.C., Tulsa, Oklahoma, with him on the briefs), for Defendants-
Appellants.
Timothy A. Hootman of Houston, Texas (Glendell Nix of Nix Law Group, PLLC,
Edmond, Oklahoma, with him on the brief), for Plaintiff-Appellee.


Before GORSUCH, MURPHY, and MORITZ, Circuit Judges.


GORSUCH, Circuit Judge.


      Sherman Shatwell 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, Mr. Shatwell was sent home with a prescription for antibiotics. By

the time he learned the truth a year later, it was too late.

      Eventually, 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. Then,

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. Now he wanted to pursue a defense pinning the blame on the absent

settling defendants, arguing that they were indeed negligent and that they — not

he — should be held responsible for any damages. Dr. Phillips’s motion to

amend the final pretrial order sought permission to introduce new jury

                                         -2-
instructions, exhibits, and witnesses aimed at advancing this new defense. But

the district court denied the motion and at the trial’s end the jury found him liable

for damages of a little over $1 million. Dr. Phillips now asks us to overturn the

judgment, contending that the district court’s refusal to amend the final pretrial

order and allow his new defense amounts to reversible error. 1

      Final pretrial orders seek to “formulate a trial plan.” Fed. R. Civ. P. 16(e).

In their complaints and answers lawyers and parties today often list every

alternative and contradictory claim or defense known to the law; during discovery

they sometimes depose every potential witness still breathing and collect every bit

and byte of evidence technology, time, and money will allow. Final pretrial

orders seek to tame such exuberant modern pretrial practices and focus the mind

on the impending reality of trial. “The casual pleading [and discovery] indulged

by the courts under the Federal Rules . . . has quite naturally led to” — some

might say required — “more and more emphasis on pre-trial hearings and

statements to define the issues” for trial. Meadow Gold Prods. Co. v. Wright, 278

F.2d 867, 868-69 (D.C. Cir. 1960). Leaving the reins so loose at the front end of

the case requires some method of gathering them up as the end approaches. At

trial you just can’t argue every contradictory and mutually exclusive claim or

defense you were able to conjure in your pleadings: juries would lose faith in

      1
        Technically, the judgment lies against Dr. Phillips and his employer,
Tahlequah Emergency Consultants, PLLC, but for simplicity’s sake we refer just
to Dr. Phillips.

                                        -3-
your credibility. Neither can you present the millions of documents and the

scores of witnesses you were able to dig up in discovery: no sensible judge

would tolerate it. Final pretrial orders encourage both sides to edit their scripts,

peel away any pleading and discovery bluster, and disclose something

approximating their real trial intentions to opposing counsel and the court.

Toward those ends, the parties are often asked — as they were in this case — to

specify the witnesses and exhibits, supply the proposed jury instructions, and

identify the claims and defenses they actually intend to introduce at trial.

      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 our 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. See, e.g.,

Sill Corp. v. United States, 343 F.2d 411, 420 (10th Cir. 1965) (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

                                         -4-
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. See, e.g., Case v. Abrams, 352 F.2d 193, 195 (10th Cir.

1965) (“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.” (quoting A. Sherman Christenson, The Pre-Trial

Order, 29 F.R.D. 362, 371 (1961))). This court will review a district court’s

decision to amend or not to amend a pretrial order only for abuse of discretion.

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000).

      We see nothing like that here. Dr. Phillips says that he was surprised when

his co-defendants left him to stand trial and that the court was insufficiently

sympathetic to his desire to revamp his trial strategy in light of the last-minute

settlement. But can a partial settlement really come as a surprise in an age when

virtually all cases settle in part or in whole, many on the eve of trial? Especially

in multiparty litigation, where an incentive exists to break ranks, settle relatively

cheaply, and leave others on the hook before the jury? The truth is, what

happened in this case was hardly unforeseeable. Like many before him in multi-

defendant cases, Dr. Phillips initially saw profit in presenting a united front with

his co-defendants only to regret the decision later. United front defenses often

present a tempting choice at the outset of multiparty cases and through discovery.

Parties can pool their resources and efforts in joint defense arrangements.

                                         -5-
Besides, no one likes to throw overboard someone else in the same boat. But the

complications associated with this strategic choice often come home to roost as

trial nears. An attractive partial settlement may be dangled before one defendant

and not others. The settling defendant may get a good deal, replenish an

opponent’s litigation coffers depleted through exhausting pretrial litigation, and

leave others exposed at trial for the bulk of the plaintiff’s damages. Remaining

defendants can be left wishing for a defense or evidence or witnesses forgone. If

a remaining defendant’s attorney counted on a colleague working for a settling

party to do the heavy lifting at trial he may feel flat-footed when it comes to

examining witnesses and arguing motions. Even if all the defendants do go to

trial, failing to obtain experts and gather evidence to show contributory

negligence by co-defendants can exact its toll and lead to regret. Multiparty

litigation presents a variety of collective action problems and other strategic

pitfalls and those Dr. Phillips encountered here are well known, not the stuff of

surprise. See, e.g., Manual for Complex Litigation (Fourth) § 13.21 (2004), 2004

WL 258728, at *1 (settling with one of many adverse parties on the eve of trial to

weaken another party’s position is “a common and legitimate litigation strategy”);

Jerome Wahlert, Contribution Between Joint Tortfeasors as Affected by Settlement

with Injured Party by One or More Tortfeasors, 17 A.L.R.6th 1 (2006) (observing

that “virtually all” multi-defendant tort cases “involve potential contribution

issues that can arise when one or more tortfeasors consider entering into

                                         -6-
settlement agreements”); Geoffrey C. Hazard, Jr., The Settlement Black Box, 75

B.U. L. Rev. 1257, 1269-70 (1995) (noting that “the interests of multiple

defendants in a specific level of settlement normally diverge”).

      It’s hard, as well, to ignore the prejudice the other side can experience in

these circumstances. Dr. Phillips effectively sought to force the plaintiff to

prepare for an entirely different trial on a few days’ notice. For the better part of

two years the defendants presented a united front. Even in their final pretrial

order submissions they didn’t designate experts to suggest one or another of the

codefendants acted unprofessionally. They didn’t submit documents to prove

such a claim. They didn’t propose jury instructions asking that someone else be

held accountable. The closest they came to suggesting contributory negligence

was to prepare boilerplate blaming unspecified others for Mr. Shatwell’s injuries.

Beyond that, through the long months of discovery and into their final Rule 16(e)

submissions, nothing. In these circumstances, the plaintiff and her lawyers had

some reasonable expectations about what trial would look like and the sort of

evidence they would — and would not — need. They knew they’d need to prove

negligence by the defendants who chose to go to trial but they wouldn’t have to

worry about finger pointing between defendants; trial would present one set of

challenges but not another.

      It may be that the district court could have allowed Dr. Phillips to rejigger

his defense at the last minute and afforded the plaintiff more time to prepare for

                                         -7-
it. But we do not see why that outcome was mandatory. A district court does not

abuse its discretion in holding a party to a long-scheduled trial and to the strategy

he articulated though pleading and discovery and in the face of such obvious

risks, especially when indulging an eleventh-hour strategic shift would mean

either imposing prejudice on the other side or inviting more delay. So beware:

when a fellow litigant settles on the eve of trial you can’t bank on the right to

claim surprise and rewrite your case from top to bottom. See, e.g., 6A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 1527.1, at 408-12 (2010) (explaining that a court may decline a

motion to amend the pretrial order “if the evidence or issue was within the

knowledge of the party seeking modification at the time of the pretrial

conference”); R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d

1306, 1308 (10th Cir. 1987) (concluding that the district court did not abuse its

discretion by holding the defendant to its prior “deliberate” choice not to pursue a

particular legal theory).

      Many of Dr. Phillips’s remaining arguments echo his Rule 16 complaint

and fail with it. For example, he challenges the court’s evidentiary ruling at trial

prohibiting him from asking one of the plaintiff’s expert witnesses questions

designed to elicit suggestions of negligence by the settling defendants. And he

argues that the court erred when it refused to instruct the jury to apportion

liability and damages between him and the settling defendants. But these

                                         -8-
evidentiary and instructional complaints are no more than collateral attacks on the

district court’s Rule 16 ruling. When the court decided to hold Dr. Phillips to his

self-declared trial plan presented only right before trial, that necessarily included

the evidence he could submit and the issues he could put to the jury. See

Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1543 (10th Cir.

1996) (“We interpret the assertion of an issue not listed in the pretrial order as the

equivalent of a formal motion to amend the order . . . .”). Dr. Phillips replies

that, however that may be, the plaintiff’s own questioning of her experts at trial

“opened the door” to questions about the settling defendants’ liability. But the

district court saw no creak in the door and, after our own review of the transcript,

we see no abuse of discretion in that assessment either. See United States v.

Burch, 153 F.3d 1140, 1144 (10th Cir. 1998).

      In places, Dr. Phillips seems to suggest that we should, on our own motion,

reduce the jury verdict against him to account for the alleged misconduct of the

settling parties. Even though the jury found him personally responsible for the

particular damages it awarded, he suggests we should relieve him of some of that

amount and (re)apportion it to those who settled before trial. But if that’s what

he seeks, we can no more oblige this request than his others. Under Oklahoma

law governing this diversity dispute, it’s not for courts to absolve defendants who

elect to go to trial from damages a jury has lawfully found them personally liable

for and attribute some of those sums to others not found liable: “a pretrial

                                         -9-
settlement cannot be used as a credit where the ghost tortfeasor’s liability was not

submitted to the jury.” Pain v. Sims, 283 P.3d 343, 345 (Okla. Civ. App. 2012)

(discussing Okla. Stat. tit. 12, § 832(H), which permits set-offs only when a

settling party is “liable” in tort for the same injury); Nichols v. Mid-Continent

Pipe Line Co., 933 P.2d 272, 280 (Okla. 1996). The proper way to handle the

question of a settling defendant’s liability is through a claim of contributory

negligence put before the jury, something (again) Dr. Phillips sought only at the

last moment when it was too late — revealing this argument to be no more than

yet another collateral attack on the court’s Rule 16 ruling.

      What’s left of this appeal at this point doesn’t warrant extended discussion.

Dr. Phillips complains about the district court’s exclusion of evidence about Mr.

Shatwell’s use of tobacco and alcohol. But at trial the cause of Mr. Shatwell’s

cancer wasn’t at issue, only the failure to warn him of its existence, so the

evidence bore no relevance to the question of liability. Of course, if Mr.

Shatwell’s tobacco and alcohol use affected his prognosis or life expectancy, it

would have become relevant to the question of damages. But, the district court

found, Dr. Phillips failed to present competent evidence suggesting a material link

between the amount of tobacco and alcohol Mr. Shatwell used and outcomes for

the sort of cancer he had. In these circumstances, the court held that most

inquiries about Mr. Shatwell’s use of tobacco and alcohol would be more

prejudicial than probative of any issue in dispute. See Fed. R. Evid. 403.

                                        - 10 -
Appellate courts review evidentiary complaints only for abuse of discretion, and

the degree of a district court’s discretion in evidentiary rulings under Rule 403 is

“particularly” wide. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384

(2008). The district court here didn’t overstep those bounds for the very reason it

gave: Dr. Phillips failed to present competent evidence indicating a connection

between Mr. Shatwell’s conduct and his prognosis. That’s not to say a link

doesn’t exist or couldn’t be suggested with enough plausibility to permit or even

require its admission in another case. Only that none of this happened in ours.

      Affirmed.




                                        - 11 -
13-7075, Monfore v. Phillips, et al.

MORITZ, Circuit Judge, concurring.

       I agree with the majority’s conclusion that Dr. Phillips has failed to demonstrate

the district court abused its discretion in denying his motion to amend the pretrial order.

But I write separately to emphasize my view that this issue presents a very close call

under the circumstances of this case.

       We have held that four primary factors should be considered in determining

whether a district court has abused its discretion in denying a motion to amend the

pretrial order. See Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000)

(listing four factors as (1) prejudice or surprise to opposing party; (2) ability of the

opposing party to cure the prejudice; (3) potential disruption of trial; and (4) any bad faith

of moving party); Moss v. Feldmeyer, 979 F.2d 1454, 1459 (10th Cir. 1992) (applying

same factors).

       Here, without separately considering these factors, the majority concludes the

district court properly exercised its discretion in refusing to permit Dr. Phillips to amend

the pretrial order. While our precedent doesn’t compel rote application of these factors in

every case, their application here reveals the outcome of this appeal isn’t as one-sided as

the majority implies.

       For good reason, the first two factors focus on the impact of the amendment on the

party opposing the motion. Yet the majority heavily focuses not on the prejudice to the

plaintiff but the lack of surprise to Dr. Phillips. I would consider the “lack of surprise”

factor as it applies to the party opposing the motion to amend, the plaintiff, in this case.
       Here, the plaintiff maintained throughout discovery and in the proposed pretrial

order that multiple defendants caused Mr. Shatwell’s injuries. But the plaintiff then chose

to enter into an “eve of trial” settlement with fewer than all defendants. As the majority

recognizes, that partial settlement likely did not come as a surprise to Dr. Phillips “in an

age when virtually all cases settle in part or in whole, many on the eve of trial.” Maj. Op.

at 5. But just as the partial settlement shouldn’t have surprised Dr. Phillips, the plaintiff

shouldn’t have been surprised when Dr. Phillips reacted to the last-minute, partial

settlement by seeking to compare the negligence of the settling defendants.

       Moreover, our case law directs us to consider “prejudice” to the opposing party

and the ability to cure that prejudice. Here, in seeking to amend the pretrial order, Dr.

Phillips primarily sought to designate the plaintiff’s lead expert witness, Dr. Huffman, as

his own witness. Specifically, Dr. Phillips intended to elicit Dr. Huffman’s opinions, as

stated in his expert report and deposition, about the negligence of two settling co-

defendants.

       Clearly, since the plaintiff planned to prove the negligence of each defendant with

Dr. Huffman’s opinion testimony, the plaintiff was fully aware of the substance of Dr.

Huffman’s report and deposition regarding the negligence of the settling defendants.

Notably, when Dr. Phillips repeatedly made these points at the hearing on the motion to

amend, the plaintiff did not suggest otherwise. Under these circumstances, the plaintiff’s

claims of prejudice ring hollow. See, e.g., Moss, 979 F.2d at 1458-59 (rejecting plaintiff’s

claim she was unfairly surprised by district court’s decision to allow defendant to add one

expert witness and expand upon testimony of another; noting both experts were

                                               2
designated as witnesses in pretrial order, plaintiff received summaries of both doctors’

reports before they testified, and plaintiff had opportunity to depose both experts before

trial).

          Likewise, the trial had not yet begun when Dr. Phillips sought to amend the

pretrial order. See Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1212 (10th Cir.

2002) (stating, “[I]f the motion to amend is made prior to trial, no disruption of an

ongoing trial is threatened.” (emphasis in original)). Most significantly, Dr. Phillips did

not seek any additional discovery and even the plaintiff does not suggest Dr. Phillips’

proposed amendments would have necessitated additional discovery. Thus, contrary to

the majority’s conclusion, amendment of the pretrial order would not have significantly

disrupted the order and efficiency of the trial. See Moss, 979 F.2d at 1459 (noting lack of

disruption when expert reports available to plaintiff before experts testified).

          Finally, although the district court did not find that Dr. Phillips acted in bad faith

in seeking amendment of the pretrial order, the majority suggests Dr. Phillips acted in bad

faith when he failed to anticipate the plaintiff’s post-pretrial order settlement and cross-

designate Dr. Huffman as a witness in the pretrial order. Admittedly, nothing prevented

Dr. Phillips from cross-designating Dr. Huffman in anticipation that other defendants

would settle. However, his failure to do so simply doesn’t constitute bad faith.

          Thus, consideration of the relevant factors demonstrates that the district court

could just as easily have exercised its discretion to permit Dr. Phillips to amend the

pretrial order. The majority appears to recognize as much, concluding, “It may be that the

district court could have allowed Dr. Phillips to rejigger his defense at the last minute and

                                                 3
afforded the plaintiff more time to prepare for it.” Maj. Op. at 8. Nevertheless, large

portions of the majority opinion imply the only reasonable course was to deny the

motion.

       Our review of a denial of a motion to amend a pretrial order requires a case-

specific, fact-specific inquiry. So while the majority warns defense counsel to “beware”

the dangers of presenting a united defense in multi-defendant litigation, Maj. Op. at 8,

litigants on both sides should also know that settling on the eve of trial could contribute

to a finding of “manifest injustice” permitting amendment of the pretrial order under Rule

16(e). Nevertheless, in light of Dr. Phillips’ double burden to demonstrate manifest

injustice below and an abuse of discretion on appeal, I agree Rule 16(e) did not mandate

that the district court grant the motion in this case. Consequently, I concur with the

majority’s conclusion that the district court did not abuse its discretion in denying the

motion to amend the pretrial order.




                                              4
