Manuela Espinosa
TOPIC: Effect of the Pretrial Order
CASE NAME:
Davey v. Lockheed Martin Corp.
ISSUE:
Does Rule 16 of the Federal Rules of Civil Procedure permit amendment
of a final pretrial order, but only to prevent manifest injustice?
HOLDING:
Yes. Amendment of a final pretrial order may be granted if the party
seeking amendment can show that manifest injustice would result
otherwise.
RULE:
Rule 16 of the Federal Rules of Civil Procedure permits amendment of a
final pretrial order, but only to prevent manifest injustice.
FACTS:
Susan Davey (plaintiff) sued Lockheed Martin Corp. (LMC) (defendant)
for employment discrimination and retaliation under Title VII of the
Civil Rights Act of 1964. The original pretrial order was filed a year and
a half before trial. The parties agreed to make several amendments and
filed a new pretrial order on August 20, 1999, the Friday before trial was
set to begin. LMC had moved to amend the order to include a new
affirmative defense of good faith compliance with Title VII based on the
ruling in Kolstad v. American Dental Assoc., 527 U.S. 526 (1999), which
was handed down by the Supreme Court of the United States two months
before. If successful, the defense would have barred a punitive damage
award against LMC. Davey objected, and the district court refused to
allow LMC to present evidence related to the defense on the ground that
allowing LMC to raise the issue would be “fundamentally unfair” to
Davey. The court reasoned that permitting the defense would be
prejudicial to Davey, who had not had an opportunity to conduct
discovery on the issue. The jury found in favor of Davey on one of the
retaliation claims. In addition to compensatory damages and damages for
lost wages and attorneys fees, Davey was awarded $200,000 in punitive
damages. LMC appealed to the United States Court of Appeals for the
Tenth Circuit, asserting that the district court erred in refusing to permit
LMC to present its Kolstad defense.
Manuela Espinosa
REASONING:
The pretrial order outlines the scope of the case for the trial and appellate
courts. FRCP Rule 16. The policy behind issuing such orders is guaranteeing
that cases proceed efficiently to a final verdict “without chance or surprise.” See
Hull v. Chevron U.S.A., Inc., 812 F.2d 584 (10th Cir. 1987). Thus, the final
pretrial order will only be amended “to prevent manifest injustice.” FRCP Rule
16(e). The burden is on the party seeking amendment to make the required
showing. Koch v. Koch Indus. Inc., 203 F.3d 1202 (10th Cir. 2000). Still, given
the significance of the pretrial order, “total inflexibility is undesirable.” Id. A
denial of a requested amendment to the pretrial order is reviewed for abuse of
discretion. Kiowa Indian Tribe v. Hoover, 150 F.3d 1163 (10th Cir. 1998). In
addition to the timeliness of the motion, the appellate court may consider: “(1)
prejudice or surprise to the party opposing trial of the issue; (2) the ability of
that party to cure any prejudice; (3) disruption by inclusion of the new issue;
and (4) bad faith by the party seeking to modify the order.” Koch. Here, Davey
argued that one weekend was inadequate time to prepare to rebut LMC’s
affirmative defense, but LMC contended that a continuance would have cured
any prejudice. The first issue is whether LMC’s request was timely. In Moss v.
Feldmeyer, 979 F.2d 1454 (10th Cir. 1992), the court properly permitted
amendment of a pretrial order to name and describe the testimony of two expert
witnesses. Both witnesses were listed in the amended order and available for
discovery, one witness was designated an expert two weeks before trial, and the
plaintiff deposed the other. The amendment did not cause unfair surprise or
prejudice. Similarly, in Summers v. Missouri Pacific R.R. System, 132 F.3d 599
(10th Cir. 1997), the appellate court overturned the denial of a requested
amendment to the pretrial order, because the motion was made before trial
began. In Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980), however, a
witness was permitted to give expert opinion testimony during trial, and the
opposing counsel was only given ten minutes to prep for cross-examination. On
appeal, the amendment was determined to be prejudicial. Here, LMC requested
the amendment before trial and granting it would not have disrupted the trial
itself. Yet, the amendment was not timely, because Kolstad was handed down
more than two months before LMC made its request. Amendment may still be
allowed if the opposing party can cure the prejudice. In Smith, the opposing
party could not cure the prejudice in a ten-minute recess, but the two weeks
given in Moss was sufficient. Davey argued that a continuance would have
pushed the trial to more than three years from her original filing and created the
risk that witnesses might become unavailable. A continuance might have been
needed, but this would have caused very little disruption in the trial process
since LMC’s motion was made before trial began. Lastly, there is no evidence
that LMC acted in bad faith. The factors, when considered together, weigh in
favor of allowing amendment. Therefore, the district court’s denial of LMC’s
proposed amendment to the pretrial order was an abuse of discretion. The
punitive damage award is vacated, and the case is remanded for a retrial on that
question.