Brandy McAlister-Jones v. Dale Foote

Filing

Opinion issued by court as to Appellant Dale Eugene Foote. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 12/04/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10977
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-00202-WCO

BRANDY N. MCALISTER-JONES,
Plaintiff - Appellee,
versus
DALE EUGENE FOOTE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 4, 2017)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Brandy McAlister-Jones (“Plaintiff”) sued Dale Eugene Foote (“Defendant”)
for injuries she suffered from a car accident. Throughout pretrial proceedings,
Plaintiff indicated to Defendant that she was pursuing damages for her future lost
income on the grounds that she was unable to continue working at her old jobs
because of her injuries. But in the final pretrial order, Plaintiff’s itemized damages
included only a few hundred dollars for lost wages—a few orders of magnitude
less than the tens of thousands of dollars Plaintiff had claimed to be missing out on
annually. Accordingly, upon a motion from Plaintiff during trial, the district court
amended the pretrial order to include Plaintiff’s claim for future lost wages,
admitted evidence on the issue, and instructed the jury on it as well—all over
Defendant’s objections. The jury returned a verdict in favor of Plaintiff.
Defendant moved for a new trial, contending that the district court had erred by
admitting evidence on Plaintiff’s future lost wages and by instructing the jury on
the issue. The district court denied the motion on the ground that, after amending
the pretrial order, the evidence and jury instructions were relevant to an issue
properly before the jury.
On appeal, Defendant contends that the district court erred by amending the
pretrial order and by improperly analyzing Defendant’s motion for a new trial.
Because the district court was well within its discretion to amend the order and

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properly addressed the issues in Defendant’s motion for a new trial, we affirm the
district court’s rulings.
I.

BACKGROUND
In October 2013, while driving eastbound down Georgia Highway 11,

Defendant rear-ended Plaintiff and her husband while they were stopped waiting to
turn off the highway. Two years later, Plaintiff, a Tennessee resident, filed this
lawsuit against Defendant, a Georgia resident, for negligence. In her complaint,
Plaintiff claimed to have sustained serious injuries from the accident and sought
damages, including “past, present, and future lost income.” Plaintiff’s initial
disclosures, filed in December 2015, also indicated that she was seeking “Future
Lost Wages,” in addition to past lost wages and other damages. In February 2016,
Plaintiff’s answers to interrogatories identified that she was seeking lost wages but
did not specify whether it was for past or future lost income.
In May 2016, the parties submitted to the district court a jointly-prepared
pretrial order that stipulated to Defendant’s responsibility for the accident and
limited the issues at trial to whether the accident was the proximate cause of
Plaintiff’s injuries and the amount of damages. The proposed pretrial order also
listed “each item of damage claimed.” The order expressly stated that “[i]tems of
damage not identified in this manner shall not be recoverable” and further noted

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that the order “supersedes the pleadings which are hereby amended to conform
hereto.” Plaintiff’s itemized damages listed only $492.28 for “lost wages” and did
not specify whether this was past or future lost income.
On June 2, 2016, Defendant’s counsel deposed Plaintiff. Before the
deposition, Plaintiff’s counsel told Defendant’s counsel that Plaintiff had lost her
job. As a result of this conversation, Plaintiff’s counsel believed that it was clear
that Defendant knew Plaintiff was seeking future lost wages. During Plaintiff’s
deposition, Defendant’s counsel asked a number of questions about Plaintiff’s
income before the accident, her current income, and her expected future income to
“get an idea of the loss.” Shortly after the deposition, on June 22, the district court
held a pretrial conference and entered the pretrial order without change. That is,
the order listed only $492.28 as “lost wages.” Nevertheless, in October 2016, two
days before trial, Plaintiff submitted proposed jury instructions that requested two
separate instructions on future lost earnings.
At trial, Defendant’s primary theory of defense was that Plaintiff’s injuries
were caused by pre-existing medical issues either unrelated or not attributable
solely to the accident. Plaintiff testified, but as she began testifying that she had
lost her job because of the accident and asserted a corresponding decrease in her
annual income, Defendant’s counsel objected that this evidence was beyond the

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scope of the pretrial order. Plaintiff’s counsel responded that the amount listed in
the pretrial order was only for past lost wages, not future lost wages, and moved to
amend the pretrial order to include damages for future lost income. The district
court overruled Defendant’s objection and allowed Plaintiff to testify to what her
anticipated future earnings had been before the accident. The district court and
both parties acknowledged that, by doing so, the district court implicitly amended
the pretrial order to include Plaintiff’s claim for future lost earnings. Plaintiff
proceeded to testify about how she now earned roughly $40,000 less per year as a
result of being unable to work at her previous jobs because of her injuries.
By the end of trial, Plaintiff had presented evidence and argued for
approximately $2,280,000 in damages, including $960,000 in future lost earnings,
$160,000 in past and future medical expenses, and $1,160,000 for pain and
suffering. Defendant objected to the proposed jury instructions on future lost
wages, but the court overruled this objection. The jury returned a verdict in favor
of Plaintiff for $1,070,288. The jury used a general verdict form that did not
indicate how much of the award was attributable to any specific type of damages.
Defendant moved for a new trial on the ground that the district court had
erred by improperly admitting evidence of Plaintiff’s future lost wages and
instructing the jury on the issue. Defendant’s counsel attached an affidavit to the

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motion stating that because he had relied on the pretrial order, he was not prepared
to defend against a claim for future lost wages, and he would have conducted the
trial differently had he been aware of it. The district court denied the motion
noting that because Defendant’s counsel had been made aware that Plaintiff lost
her job before her deposition, he was able to depose Plaintiff on the issue of future
lost earnings. Thus, Defendant was not prejudiced by amending the pretrial order
to include the claim. Because amendment was appropriate, the court concluded
that Plaintiff’s future lost wages were properly at issue in the trial, and the
admission of relevant evidence and instruction of the jury on the issue were
therefore correct.
Defendant appealed to this Court under 28 U.S.C. § 1291, arguing that the
district court erred by amending the pretrial order to include Plaintiff’s claim for
future lost wages and improperly analyzing the issue when denying Defendant’s
motion for a new trial.
II.

STANDARD OF REVIEW
We review a district court’s decision to amend a final pretrial order for abuse

of discretion. FN Herstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080 (11th Cir.
2016) (citing Morro v. City of Birmingham, 117 F.3d 508, 513, 515–16 (11th Cir.
1997)). A district court abuses its discretion when “its action could be deemed

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arbitrary,” id. (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.
1979)), or if it misapplies the law, Rodriguez v. City of Doral, 863 F.3d 1343, 1349
(11th Cir. 2017) (citing Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t
of Health and Rehab. Services, 225 F.3d 1208, 1218 (11th Cir. 2000)). In the
context of amending a final pretrial order, we have recognized that “[a] district
court has ‘broad discretion’ to construe its own pretrial orders and we afford
substantial deference to a trial court’s decision to allow (or disallow) amendments
to pretrial orders.” Transamerica Leasing, Inc. v. Inst. of London Underwriters,
430 F.3d 1326, 1334 (11th Cir. 2005) (quoting Mut. Serv. Ins. Co. v. Frit Indus.,
Inc., 358 F.3d 1312, 1323 (11th Cir. 2004)). Thus, “[t]here is a presumption that a
pretrial order will be amended in the interest of justice and sound judicial
administration provided there is no substantial injury or prejudice to the opposing
party or inconvenience to the court.” United States v. Varner, 13 F.3d 1503, 1507–
08 (11th Cir. 1994). If amendment would cause substantial injury to a party or
inconvenience to the court, then a court may amend the pretrial order only to avoid
manifest injustice. Id. at 1508; see Fed. R. Civ. P. 16(e).
We review a district court’s denial of a motion for a new trial for abuse of
discretion as well. Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 807
(11th Cir. 2017) (citing Hercaire Int’l, Inc. v. Argentina, 821 F.2d 559, 562 (11th

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Cir. 1987)). Deference to the district court is “particularly appropriate” in
instances like this where the court denied the motion and left the jury’s verdict
“undisturbed.” McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241,
1255 (11th Cir. 2016) (quoting Rosenfield v. Wellington Leisure Prods., Inc., 827
F.2d 1493, 1498 (11th Cir. 1987)).
III.

DISCUSSION
A.

Motion to Amend the Pretrial Order

Defendant raises two grounds in support of his challenge to the district
court’s grant of Plaintiff’s motion to amend the pretrial order. First, Defendant
contends that he suffered substantial prejudice because he relied on the pretrial
order in crafting his trial strategy and was not prepared to defend against a claim
for future lost wages. Had he been aware of Plaintiff’s claim, Defendant’s counsel
asserts that he would have explored the claim further and would have at least
presented expert testimony on the present cash value of Plaintiff’s expected future
wages.
The record, however, indicates that Defendant was, or at least should have
been, aware that Plaintiff intended to seek recovery for future lost wages. The
complaint specifically stated that Plaintiff sought to recover damages for her “past,

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present, and future lost income.” (Emphasis added.) And her initial disclosures
listed her damages as including “Future Lost Wages.”
After the parties submitted the pretrial order, Plaintiff was deposed in June
2016. At that point, which was five months before trial, Plaintiff’s counsel
informed Defendant’s counsel that Plaintiff had lost her job. Plaintiff’s counsel
believed it was understood from this conversation that Plaintiff intended to assert a
claim for future lost wages. That Defendant was aware of Plaintiff’s intentions is
confirmed by the questions Defendant’s counsel asked at Plaintiff’s deposition.
Defendant’s counsel inquired about when and why Plaintiff lost her old jobs and
how much she had made, what Plaintiff was currently doing for work and what her
current salary was, what she expected to make going forward, and whether she had
applied for and expected to receive disability. Notably, in the middle of this
questioning, Defendant’s counsel stated that he was asking about Plaintiff’s current
salary specifically to “get an idea of the loss here.” It is not apparent why
Defendant’s counsel would ask about Defendant’s current and projected income
unless he was aware of Plaintiff’s claim for future lost wages.
Regardless of whether Defendant was aware of Plaintiff’s claim for future
lost wages by the time of Plaintiff’s deposition, Defendant was on notice of this
claim shortly before trial when Plaintiff requested jury instructions that included

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two instructions on future lost earnings. At no point before trial did Defendant
object, ask for a continuance, or make any effort to clarify whether Plaintiff was
pursuing future lost wages. In addition, the district court observed during trial that
it believed that Plaintiff’s claim for future lost wages was “what this case was all
about” and was “shocked” to discover that the claim was not in the pretrial order.
Because the record reflects that Defendant was, or at least should have been,
aware of Plaintiff’s claim for future lost wages and had the opportunity to prepare
for it, we cannot conclude that Defendant suffered substantial prejudice or injury
from the district court’s amendment of the pretrial order. Cf. Hassan v. U.S. Postal
Serv., 842 F.2d 260, 263–64 (11th Cir. 1988) (holding that a district court’s
decision to allow a party to raise a defense at trial that was not included in the
pleadings was not prejudicial because the opposing party had notice that the
defense would be raised).
Second, Defendant contends that Plaintiff would not have been prejudiced if
the district court had denied the motion to amend. But this assertion is obviously
not correct. Had the amendment not been allowed, Plaintiff would have been
prevented from presenting a significant portion of her damages. Also, because
Defendant cannot establish substantial injury, the presumption that amendment

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will be allowed applies and we need not delve further. See Varner, 13 F.3d at
1507–08.
Because Defendant has failed to show that the district court abused its
discretion, we affirm the district court’s decision to amend the pretrial order. See
Santiago v. Lykes Bros. S.S. Co., Inc., 986 F.2d 423, 427 (11th Cir. 1993) (noting
that a district court did not abuse its discretion by instructing the jury on a theory
not included in the pretrial order).
B.

Motion for a New Trial

Defendant also argues that the district court abused its discretion by denying
Defendant’s motion for a new trial, relying on essentially the same grounds
Defendant used in challenging the district court’s approval of the amendment of
the pretrial order. First, Defendant asserts that the district court erred when it
concluded that Defendant was not prejudiced by the amendment. But, as already
discussed, the record supports the district court’s conclusion that Defendant was
not unfairly prejudiced because he had been given notice of Plaintiff’s claim for
future lost wages and had the opportunity to prepare to defend that claim.
Second, Defendant contends that the district court applied the wrong legal
standard by failing to determine whether Plaintiff would have suffered manifest
injustice if she had not been allowed to amend the pretrial order. But the district

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court did conclude that denying amendment and excluding evidence on Plaintiff’s
future lost wages “would have hindered plaintiff in presenting her case on the
merits.” And, again, because Defendant cannot show that he was substantially
injured by the amendment, the district court was allowed to exercise its discretion
and amend the pretrial order. See Varner, 13 F.3d at 1507–08.
Altogether, the district court properly analyzed Defendant’s motion for a
new trial, and we hold that the district court did not abuse its discretion in denying
the motion.
IV.

CONCLUSION
We find no error in the district court’s amendment of the pretrial order or its

denial of Defendant’s motion for a new trial. Accordingly, we AFFIRM.

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