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Porter v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

January 10, 2016

DANIEL L. PORTER, Plaintiff,
AMERICAN FAMILY INSURANCE COMPANY, a Wisconsin corporation, Defendant.


Kathleen M. Tafoya, Magistrate Judge

This matter is before the court on “Plaintiffs Second Motion to Amend Pre-Trial Order and Exhibit List of Plaintiff” (“Mot.”) [Doc. No. 119], filed December 10, 2015. The defendant’s response (“Resp.”) [Doc. No. 122] was filed on December 21, 2015. Plaintiff requests he be allowed to amend the plaintiffs exhibit list to add five exhibits and to withdraw eight exhibits and to supplement updated charts to his expert’s report. Defendant does not object to the withdrawal of exhibits so the court will allow the plaintiffs exhibit list to be amended to withdraw formerly identified exhibits 19, 32, 48, 49, 57, 58, 59 and 60. Further, the Defendant does not object to the inclusion of the supplemental update to expert James Evenson’s report (Mot., Ex. 3) but preserves all other objections to Mr. Everson’s testimony, including lack of foundation and disclosure, issues which will be decided by Senior District Judge Wiley Daniel.


The Final Pretrial Order serves the purpose of “insur[ing] the economical and efficient trial of every case on its merits without chance or surprise.” Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir.1987). A final pre-trial order may be modified only to prevent manifest injustice. F.R.C.P. 16(e). “The party moving to amend the order bears the burden to prove the manifest injustice that would otherwise occur.” Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002) (citing Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000)). A decision to allow amendments to the final pretrial order is within the sound discretion of the trial court. Roberts v. Roadway Express, 149 F.3d 1098, 1107 (10th Cir. 1998). In exercising its discretion, a trial court is guided by the following factors:

(1) prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to cure any prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new issue; and (4) bad faith by the party seeking to modify the order.

Koch v. Koch Indus., Inc., 203 F.3d at 1222 n. 10. However, when considering these factors, the primary concern “must be to assure ‘the full and fair litigation of claims.’ ” Canales v. Principi, 220 F.R.D. 627, 628 (D. Colo. Mar. 31, 2004) (quoting Joseph Manf’g Co., Inc. v. Olympic Fire Corp., 986 F.2d 416, 420 (10th Cir.1993)). Amending the final pretrial order “should be allowed ‘when the danger of surprise is small and a failure to amend might result in an injustice to the moving party.’” Id. (quoting Bridge Publications, Inc. v. F.A.C.T.Net, Inc., 183 F.R .D. 254, 258-59 (D. Colo. 1998)).


Proposed Exhibit 64, Statement of Dan Porter made on December 28, 2012.

Plaintiff asserts he only recently learned that two days after the collision at issue in this case, [1] Plaintiff's wife made a statement to the insurance company that her husband, the Plaintiff, was not injured in the subject automobile collision. (Mot. at 4.) Mr. Porter’s statement was taken by Defendant on December 28, 2012, four days after the collision, wherein he stated that he was injured. Plaintiff contends it needs Plaintiff’s out of court statement to rebut Defendant’s claim that there were no injuries to Plaintiff, apparently based, at least in part, on the statement of Mrs. Porter two days previous. (Id.) Defendant asserts that both Mr. and Mrs. Porter’s statements were part of the claim notes which were produced on April 1, 2014 with Defendant’s Disclosures. (Resp. at 3.) Plaintiff’s counsel, therefore, has known or should have known for approximately 20 months that at or near the time of the accident, Mrs. Porter told the insurance company that Mr. Porter was not injured in the accident and within two days Mr. Porter told the insurance company that he was injured.

To the extent the Defendant wishes to introduce Mrs. Porter’s statement of December 26, 2012, that Mr. Porter was not injured in the accident, Plaintiff would suffer manifest injustice if the statement of Mr. Porter to the contrary, provided to the insurance company two days later, were also not allowed into evidence for jury consideration. Both sides to this controversy should have known since at least April 1, 2014, that within a two day period immediately subsequent to the subject accident, husband and wife had given contradictory statements to Defendant. This information was part of the claim file. While Plaintiff may have missed this information in the claim file, the Defendant did not, and cannot claim surprise that Mr. Porter’s statement contradicted that of his wife’s. Therefore, no prejudice to the Defendant will result in allowing Mr. Porter’s statement to be listed as one of the exhibits within the Final Pretrial Order. It is fair that, to the extent either statement is deemed admissible at trial, the jury have the ability to weigh and consider what, if anything, the contradictory statements mean. It would be unfair to allow the defendant to capitalize on the mistake of counsel in apparently overlooking Mrs. Porter’s statement memorialized in the claim notes and, therefore, failing to recognize and list Mr. Porter’s contrary statement as a potential exhibit in the case.

Therefore, the Motion will be granted with respect to Dan Porter’s December 28, 2012 statement.

B. Itemized billing of St. Mary’s Hospital.

Plaintiff attaches to his motion, copies of billings related to an emergency room admission to the St. Mary’s Hospital on September 14, 2014, an EKG/ECG on March 5, 2013, an outpatient visit to the hospital on January 21, 2013 where Plaintiff received an MRI and pharmacy products, and a CT Scan - Head Scan which occurred on October 6, 2014. It is completely unknown how these late disclosed documents relate to this case. (Mot., Ex. 1.)

Defendant asserts that these billings reference “undisclosed medical treatment.” (Resp. at 2.) The Defendant has had no opportunity to conduct discovery on these billings or on the underlying medical treatment described to verify ...

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