## Facts

- Sherman W. Shatwell went to a hospital with neck pain; testing indicated probable throat cancer that was treatable with prompt action.
- Due to administrative errors, the diagnostic information was not communicated to Shatwell; he was discharged with antibiotics.
- About a year later, Shatwell learned of the cancer when it was no longer treatable; he later died.
- The decedent’s widow and surviving child sued multiple medical providers for negligence and wrongful death based on the failure to inform Shatwell of the likely cancer diagnosis.
- For roughly twenty months of litigation through discovery and the final pretrial order, the defendants proceeded on a unified theory denying negligence by anyone.
- Two weeks before trial, some co-defendants settled and were no longer going to appear at trial.
- Shortly before jury selection, Dr. Kenneth Edward Phillips and his entity moved to amend the final pretrial order to assert a new comparative-fault theory blaming the settling, absent providers and to add related witnesses, exhibits, and jury instructions.
- The district court denied the motion as untimely; a jury later returned a plaintiff’s verdict of a little over $1 million against Phillips and his entity.

## Issues

1. Whether the district court abused its discretion under Federal Rule of Civil Procedure 16(e) by denying an eve-of-trial motion to amend the final pretrial order to add a new comparative-fault theory and supporting evidence targeting settling, absent co-defendants.

## Decision

- The court of appeals affirmed.
- Rule 16(e) allows modification of a final pretrial order only to prevent manifest injustice.
- The district court acted within its discretion in refusing a last-minute shift from a unified “no negligence” position to an affirmative blame-shifting defense against absent settling parties.
- The defendants’ claim of “surprise” from co-defendants’ settlement did not establish manifest injustice.
- The proposed amendment risked prejudice and disruption by injecting new theories, witnesses, exhibits, and instructions immediately before trial.

## Legal Principles

- A final pretrial order controls the course of trial and is modified under Rule 16(e) only to prevent manifest injustice.
- Motions to amend a final pretrial order are reviewed for abuse of discretion, with substantial deference to trial-court case management.
- A party’s late strategic change—especially one that would materially expand issues and evidence on the eve of trial—ordinarily does not satisfy the manifest-injustice standard.
- Settlement by co-defendants, even close to trial, is a foreseeable litigation event and does not, without more, justify rewriting the trial plan set by the final pretrial order.

## Conclusion

The Tenth Circuit upheld the verdict and affirmed the denial of an eve-of-trial request to amend the final pretrial order, holding that Rule 16(e)’s “manifest injustice” standard did not require permitting a late comparative-fault defense against settling, absent co-defendants.


Monfore v. Phillips, 778 F.3d 849 (10th Cir. 2015)