TUTTLE v. EATS TREATS OPERATIONS, INC.

Full title: VICKY A. TUTTLE, Plaintiff, v. EATS AND TREATS OPERATIONS, INC., Defendant

Court: United States District Court, D. Kansas

Date published: Aug 8, 2005

Case No. 03-4139-RDR (D. Kan. Aug. 8, 2005)

Opinion

Case No. 03-4139-RDR.

August 8, 2005

MEMORANDUM AND ORDER

RICHARD ROGERS, Senior District Judge

This case is now before the court upon defendant's motion to modify the pretrial order. This is an employment discrimination action. Plaintiff alleges: that defendant retaliated against her for exercising her rights to workers' compensation; that defendant retaliated against plaintiff for making an OSHA complaint; and that defendant violated plaintiff's rights under the Family Medical Leave Act, 29 U.S.C. § 2601. Defendant denies any illegal retaliation or violation of plaintiff's rights under federal or state law and asserts that plaintiff was terminated from employment as part of an unsatisfactory management team. Plaintiff claims that she suffered damages, including emotional distress, from defendant's alleged misconduct. Defendant asserts that plaintiff is not entitled to damages for emotional distress.

The deadline for defendant to designate expert witnesses in this case was May 31, 2004. The final pretrial order in this case was filed on September 3, 2004. On page 22 of the final pretrial order, it states: "Neither party has designated any expert testimony in this case. The parties do not intend to offer opinion testimony." The court denied cross-motions for summary judgment on May 23, 2005. A few weeks later, the court set this case for trial on September 19, 2005.

Defendant filed the instant motion to modify the pretrial order on July 3, 2005. Defendant seeks to modify the pretrial order to allow Dr. Michael J. Pronko to testify as an expert witness at trial. Dr. Pronko interviewed plaintiff in 2004 in connection with a workers' compensation claim which plaintiff brought relative to an injury she incurred while working for defendant in March 2001. Plaintiff was terminated by defendant in July 2001. Dr. Pronko wrote a report regarding plaintiff dated March 29, 2004. Plaintiff and defendant in this case were aware of this report at least by July of 2004.

Defendant delayed seeking leave to exceed the deadline for designating expert witnesses and/or to amend the pretrial order for several reasons. First, although defense counsel was aware of Dr. Pronko's report, he did not actually read it until sometime after the final pretrial conference when counsel was preparing defendant's summary judgment motion. Defendant also hoped that amending the final pretrial order would be unnecessary because defendant would prevail on summary judgment. In addition, defendant knew that plaintiff was not intending to offer expert testimony on the issue of emotional distress.

Defendant did not prevail on summary judgment, however, and although plaintiff's position declining to present expert testimony has not changed, with trial on the horizon defendant has decided to seek to amend the pretrial order to add Dr. Pronko as a witness. Defendant contends that Dr. Pronko's opinion is highly probative with regard to plaintiff's claims of emotional distress and that it would be manifestly unjust to hinder defendant's ability to defend against plaintiff's claims by denying the instant motion to amend. Plaintiff claims that defendant has waited too long to bring this motion. Plaintiff further asserts that plaintiff will be required to hire her own expert at considerable expense and the court will have to delay the trial of this case. Plaintiff also highlights the point that Dr. Pronko did not examine plaintiff in connection with this case. He did not examine plaintiff to determine whether plaintiff suffered emotional distress from her termination. Instead, his task was to help determine the nature and extent of plaintiff's injuries from an accident at work.

FED.R.CIV.P. 16(e) states that: "The order following a final pretrial conference shall be modified only to prevent manifest injustice." The court does not believe defendant has demonstrated that manifest injustice would result if defendant was not permitted to amend the pretrial order to add a doctor who did not examine plaintiff in connection with the issues in this case. Normally, four factors are examined to determine whether a court has abused its discretion in allowing or disallowing an amendment to a pretrial order to allow or prohibit the testimony of a witnesses:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in court, and (4) bad faith or willfulness in failing to comply with the court's order.

Moss v. Feldmeyer, 979 F.2d 1454, 1459 (10^th Cir. 1992) quoting Smith v. Ford Motor Company, 626 F.2d 784, 797 (10^th Cir. 1980) cert. denied, 450 U.S. 918 (1981).

Examining these factors, we do not believe it would be an abuse of discretion to grant defendant's motion. Plaintiff has been aware of Dr. Pronko's report for some time and could use the time prior to trial or ask for a continuance to prepare to rebut his report, perhaps by asking for leave to add plaintiff's own expert witness. Granting defendant's motion would probably lead to the continuance of the trial, but it would not cause the same disruption or prejudice as the addition of a witness on the eve or in the middle of trial. Finally, while the court believes defense counsel should be faulted for not acting much earlier, the court does not believe defense counsel has acted in bad faith.

Nevertheless, simply because granting the motion would not be an abuse of discretion does not mean that denying the motion would be an abuse of discretion. See Wheat v. United States, 486 U.S. 153, 164 (a decision within the discretion of the trial court does not mean that it is "right" and the opposite decision is "wrong"); Kern v. TXO Production Corp., 738 F.2d 968, 971 (8^th Cir. 1984) (granting or denying a motion to dismiss without prejudice under the circumstances of the case would not be an abuse of discretion). Here, we believe defendant's motion should be denied because defendant has not demonstrated that the proposed amendment to the pretrial order is necessary to prevent "manifest injustice." The issue of the nature and extent of plaintiff's alleged emotional distress can be adequately explored without the opinion of Dr. Pronko. Furthermore, defendant could have raised this issue much earlier in this litigation without impacting the trial schedule. Such belated attempts to modify a pretrial order have been rejected by the Tenth Circuit. SeeBurnette v. Dresser Industries, Inc., 849 F.2d 1277, 1284 (10^th Cir. 1988) (affirming the denial of a motion to modify a pretrial order to raise a new claim in a products liability case); see also, Duford v. Sears, Roebuck and Co., 833 F.2d 407, 413 (1^st Cir. 1987) (magistrate's denial of plaintiff's motion to add expert witness to testify regarding emotional distress was not an abuse of discretion when motion was filed ten months after discovery was completed). The cases the court has reviewed from the Tenth Circuit where modification of a pretrial order to permit witnesses has been allowed have involved situations which are distinguishable in our opinion. SeeF.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10^th Cir. 1994) (movant's knowledge of the scope of the trial and the need for the witnesses did not occur until a few weeks prior to trial);Moss, 979 F.2d at 1458-60 (witness added as an expert witness was already listed in the pretrial order as a witness and addition as an expert witness did not threaten to disrupt or delay the trial).

In sum, the court shall deny the motion to amend the pretrial order because defendant has waited too long to seek to add Dr. Pronko as a witness, granting the motion would probably require a delay in the trial and cause additional expense, and Dr. Pronko's testimony is not necessary to avoid manifest injustice in this case.

IT IS SO ORDERED.