HUBBARD v. BOROUGH OF MANTOLOKING

DEBEVOISE, Senior District Judge

This civil rights action pursuant to 42 U.S.C. § 1983 was originally tried before the Court on July 13-24, 1999. At the conclusion of that trial, the jury was unable to reach a verdict as to the liability of two of the defendants, Jeffrey Lindquist and the Borough of Mantoloking ("the remaining defendants"). Retrial of the remaining defendants has been scheduled beginning October 26, 1999. The remaining defendants have moved upon short notice to amend the final pretrial order to add an additional witness, Dr. Jeffrey Abrams, M.D. For the reasons set forth herein, the motion is denied.

A full recitation of the substantive factual background underlying this action is not necessary in determining the procedural matter now before the Court. For purposes of this motion, the relevant facts are as follows.

Plaintiff commenced this action on September 6, 1996, naming numerous parties as defendants, including the Borough of Seaside Heights. Several of the defendants were dismissed during the course of pretrial proceedings. The trial of defendants Lindquist, Korman, Elias, and the Boroughs of Mantoloking and Seaside Heights was heard on July 13-24, 1999.

During the course of pretrial discovery, plaintiff submitted to a medical examination by an orthopedic specialist, Dr. Jeffrey S. Abrams, M.D. Dr. Abrams' services were procured by defendant Borough of Seaside Heights through its attorney, Guy P. Ryan, Esq. Following the examination and a review of plaintiff's medical records, Dr. Abrams submitted a five-page narrative report of his findings, dated December 29, 1997.

Mr. Ryan served a copy of Dr. Abrams' report, as well as his Curriculum Vitae, upon plaintiff's attorneys on or about January 12, 1998. Following the service of his report, Dr. Abrams was deposed by plaintiff's counsel on February 25, 1998.

Around this same time, the remaining defendants secured Mr. Ryan's authorization to join in using Dr. Abrams as a potential witness. On or about January 19, 1998, defendant Lindquist served plaintiff's counsel with a supplemental answer to plaintiff's interrogatories, naming Dr. Abrams as "an expert witness who may be called upon to testify . . . at the time of trial."

A final pretrial conference was conducted before Magistrate Judge John J. Hughes on May 13, 1998. Pursuant to Fed.R.Civ.P. 16(e), Magistrate Judge Hughes entered a joint final pretrial order at the conclusion of that conference. Dr. Abrams was not listed as an expert witness in the final pretrial order by any party. No amendment of the final pretrial order was made or attempted. Dr. Abrams was not called as a witness by any defendant, and he did not testify at the first trial.

On or about September 30, 1999, the remaining defendants, by letter, advised plaintiff's counsel that they "may call Dr. Abrams" as an expert witness during the retrial of this matter. The letter further states the remaining defendants' intention to take a de bene esse video deposition of Dr. Abrams prior to trial.

Plaintiff's attorneys have objected to the proposed use of Dr. Abrams as an expert witness on the grounds that he was not named as a potential witness in the joint final pretrial order. Moreover, they have refused to appear at the de bene esse deposition of Dr. Abrams unless the remaining defendants first obtain leave of Court to amend the final pretrial order. Consequently, the remaining defendants have filed the instant motion.

The Third circuit has, on several occasions, recognized the importance of preserving the sanctity of the final pretrial order. See, e.g.,Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1287 (3d Cir. 1995); Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1194 (3d Cir. 1987); Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986). After all, "one of the main purposes of the pretrial [order] is to formulate the issues to be litigated to aid the parties in preparation for trial." Fashauer, 57 F.3d at 1287. "If they can be disregarded without a specific showing of good cause, their utility will be severely impaired." Koplove, 795 F.2d at 18; see also Fashauer at 1287.

These considerations are embodied in Fed.R.Civ.P. 16(e), which states, in pertinent part, "[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice." The moving party bears the burden of showing that manifest injustice will result without amendment, and that the moving party had a compelling reason why it did not seek to amend before trial. Pharmaceutical Sales Consulting Corp. v. Delavau Co., 1999 U.S. Dist. LEXIS 12386, *8 (D.N.J. July 9, 1999).

While the decision to allow an amendment is ultimately left to the trial court's discretion, see Pharmaceutical Sales at *9; Scopia Mortgage Corp. v. Greentree Mortgage Co., 184 F.R.D. 526, 528 (D.N.J. 1998), several factors have been noted as relevant to the inquiry. The four main considerations have been identified as:

1) prejudice or surprise in fact to the nonmoving party;

2) the ability of that party to cure the prejudice;

3) the extent to which waiver of the rule would disrupt the orderly and efficient trial of the case, and;

4) bad faith or wilfulness on the part of the movant.

Scopia Mortgage, 184 F.R.D. at 528, citing Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977). In addition, courts and commentators have considered numerous other factors including:

the importance of the proffered testimony; Scopia Mortgage at 528;

whether the amendment constitutes a change in strategy or tactics; id.;

whether or not the party resisting the proposed change should have known that the moving party intended to proceed in the manner proposed; 3 Moore's Federal practice 3d at § 16.78[4][b] (1998);

whether the moving party manifested its intent to proceed in the proposed manner in earlier papers or statements, even though it failed to have that intention reflected in the pretrial order; id.;

how likely it is that the proposed change would have an effect on the outcome at trial; id.;

whether or not modifying the order as proposed would impose unjustifiable expenses or disruptions on another party; id.;

whether the parties devoted substantial pretrial resources to developing the matter omitted from the pretrial order;

The remaining defendants have made no showing that manifest injustice would result from this Court's denial of the motion to amend the pretrial order. Indeed, defendants chose not to call Dr. Abrams as a witness during the original trial, and have given no indication that they regard his testimony as essential to the defense of this action. Under ordinary circumstances denial of the motion would be justified.

Where a movant fails to demonstrate manifest injustice, however, the Court nevertheless retains the discretion to allow amendment of the pretrial order. See Pharmaceutical Sales, 1999 U.S. Dist. LEXIS 12386 at *9, citing Daily v. Hyster Co., 1990 U.S. Dist. LEXIS 17412 (D.N.J. Dec. 21, 1990); Joy Mfg. Co. v. Sola Basic Indus., 697 F.2d 104, 109 (3d Cir. 1982). "It is well established that departure from or adherence to the pretrial order is a matter peculiarly within the discretion of the trial judge." Beissel v. Pittsburgh Lake Erie Co., 801 F.2d 143, 150 (3d Cir. 1986). Under the circumstances presented in this case, however, allowing amendment of the pretrial order to allow Dr. Abrams' testimony is unwarranted.

Defendants' belated attempt to present an additional witness, less than a month before trial, would result in undue prejudice to the plaintiff. Although plaintiff was first made aware of Dr. Abrams on January 19, 1998, defendants have never given any indication of their intent to call him as a witness in the intervening year and ten months. He was omitted from the joint final pretrial order, a deficiency defendants made no attempt to rectify for almost a year and a half. Defendants went so far as to conduct an entire trial without calling Dr. Abrams as a witness or even attempting to do so. Rule 16(e) is intended to aid parties in preparing for trial by giving them some idea of what testimony to expect. Permitting amendment of the pretrial order at this stage of the litigation, less than two weeks before the retrial, would amount to nothing less than trial by ambush.

Moreover, this dilatory motion threatens to disrupt the parties' preparation for retrial of the case. Even on short notice, the motion was argued to the Court barely two weeks before trial, leaving the parties even less time to conduct and digest the proposed de bene esse deposition of Dr. Abrams. Dr. Abrams' proposed testimony may also require plaintiff's experts, whose testimony has already been videotaped, to supplement their reports and/or testimony in order to rebut Dr. Abrams' findings. And while bad faith cannot be inferred solely from the disruptive and unexpected nature of this belated motion, it surely tests the limits of good taste.

Turning to additional considerations, Dr. Abrams' testimony is apparently of such limited importance that defendants did not even bother to present him as an expert witness at the first trial. Accordingly, it seems unlikely that his testimony will have a measurable impact on the outcome of the upcoming trial. Defendants also admit, quite candidly, that the decision to call Dr. Abrams constitutes a change in strategy from the first trial. See Certification of Alan J. Baratz at 8. Finally, the proposed amendment, as well as the additional depositions or reports which could be necessary in rebuttal, presents substantial additional costs to both parties, both financial and in terms of time and resources.