United States District Court, D. Colorado
ORDER GRANTING JOINT MOTION FOR LEAVE TO FILE PROPOSED AMENDED FINAL PRETRIAL ORDER AND WITHDRAW THE EEOC’S FED. R. EVID. 702 MOTIONS TO EXCLUDE THE OPINIONS OF TWO OF DEFENDANT’S EXPERTS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This matter is before the Court on the parties’ Joint Motion for Leave to File Proposed Amended Final Pretrial Order and Withdraw the EEOC’s Fed.R.Evid. 702 Motions to Exclude the Opinions of Two of Defendant’s Experts. (Doc. # 206.) For the reasons explained below, the Court grants the instant Motion.
The Court adopted a Final Pretrial Order on May 12, 2015. (Doc. # 147.) That Order noted that “Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice.” (Id. at 44) (emphasis added). In that Order, Plaintiff Equal Employment Opportunity Commission (the EEOC) indicated that it would bring claims for: (1) disparate treatment, including failure to hire some of the aggrieved individuals, and discharge of one other; (2) failure to accommodate the religious practice of wearing hijabs; (3) failure to accommodate the religious practice of wearing long skirts; and (4) retaliation. In addition to these claims, Plaintiff-Intervenors also stated that they would ask the jury to determine whether Intervenors had been discriminated against because of sex-plus-religion. (Id. at 2-9.)
On September 29, 2015, this Court ruled on summary judgment, holding, inter alia, that it was not unduly burdensome for JetStream to allow its workers to wear hijabs as a religious accommodation if they are tucked in to a shirt and secured to the head. (Doc. # 184 at 58.) The Court ruled, however, that the question of whether the skirt accommodation was an undue hardship remained a question for the jury. (Id. at 60.) On January 21 and 22, 2016, the EEOC filed two motions pursuant to Fed.R.Evid. 702, requesting that the expert opinions of Matthew Lykins and Dr. Nancy Grugle be excluded from trial. (Doc. ## 192, 193.) These two experts were hired by Defendant to opine on safety hazards; specifically, Mr. Lykins’ testimony would relate to the safety hazards associated with loose clothing in the airport environment, while Dr. Grugle’s would relate to the potential dangers of wearing long skirts while using jetway stairs. (See id.)
The instant Motion indicates that the parties have reached a final agreement in which Plaintiffs stipulated to withdraw their skirt accommodation claims (although the hijab accommodation claims will remain for trial), and Intervenors stipulated to withdraw their sex-plus-religion discrimination claims. Additionally, Defendant stipulated that it will not call Matthew Lykins or Dr. Nancy Grugle as witnesses at trial, and Plaintiffs stipulate they will not call Jayme Scrifes or Dr. J.P. Purswell as witnesses at trial. As a result, both parties seek the Final Pretrial Order to be amended accordingly. The parties also note that this trial will be accelerated without the skirt accommodation and sex-plus-religious discrimination claims.
A. Legal Standard
The Tenth Circuit reviews a district court’s decision regarding the amendment of a final pretrial order for an abuse of discretion. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). Federal Rule of Civil Procedure 16(e) provides that final pretrial orders may be amended “only to prevent manifest injustice, ” but, as the Tenth Circuit recently explained,
Even that standard isn't meant to preclude any flexibility - trials are high human dramas; surprises always emerge; and no judge worth his [or her] salt can forget or fail to sympathize with the challenges the trial lawyer confronts. For all our extensive pretrial procedures, even the most meticulous trial plan today probably remains no more reliable a guide than the script in a high school play - provisional at best and with surprising deviations guaranteed.
Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir. 2015) (citing Sill Corp. v. United States, 343 F.2d 411, 420 (10th Cir. 1965) (pretrial orders should not be treated as “hoops of steel”)); see also Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002) (quoting Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)) (“Because the issues and defenses of the lawsuit are defined by the terms of the [final pretrial] order, ‘total inflexibility is undesirable’”); Fed.R.Civ.P. 1 (noting that the Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding”).
The Tenth Circuit considers the following factors in deciding whether the district court abused its discretion: “(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.” Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1210 (10th Cir. 2002) (quoting Koch, 203 F.3d at 1222)). It also considers the timeliness of the movant’s motion to amend the order. See Koch, 203 F.3d at 1223.
Having considered both the facts of the instant case and that the instant Motion is unopposed, the Court believes that amendment of the final pretrial order is warranted. The first, second, and fourth of the Koch factors are simply irrelevant here; specifically, there is no prejudice or surprise to either party, nor is there an indication of bad faith, as the requested modification is the result of the parties’ own agreement. Additionally, far from disrupting the orderly and efficient trial in this case, the parties’ proposed amendments would streamline and shorten the trial considerably. Finally, the parties filed ...