Unpublished Disposition, 862 F.2d 318 (9th Cir. 1988)

MEMORANDUM^* 

A jury returned a verdict for Arthur J. Olivier and against Union Pacific for $1,239,000. Union Pacific claims the district court abused its discretion by granting Olivier's motion, made the morning of trial, to amend the prayer of his complaint and the pretrial order to increase his damage claim from $840,000 to $1,500,000, and by permitting Olivier's expert witness to testify as to the increased damage amount. We have jurisdiction under 18 U.S.C. § 1291 and we affirm.

Modification of the Pretrial Order

Under Rule 16(e) of the Federal Rules of Civil Procedure, the district court has authority to modify a pretrial order if, in the court's discretion, the modification is necessary to prevent manifest injustice. United States v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981). In the First National Bank case we stated:

For the court to have properly exercised its discretion to modify the order, it would have hade [sic] to consider such factors as (1) the degree of prejudice to the [defendant] resulting from a failure to modify; (2) the degree of prejudice to plaintiff from a modification; (3) the impact of a modification at that stage of the litigation on the orderly and efficient conduct of the case; and (4) the degree of willfulness, bad faith or inexcusable neglect on the part of the [defendant]. Where, upon consideration of factors such as those, the court determines that refusal to allow a modification might result in injustice while allowance would cause no substantial injury to the opponent and no more than slight inconvenience to the court, a modification should ordinarily be allowed.

First National Bank, 652 F.2d at 887 (footnotes omitted).

Union Pacific was not prejudiced by the amendment. Olivier's claim was substantial. Union Pacific knew four months before trial, when the pretrial order was signed in April, that Olivier would be seeking damages of $840,000. It had received the report of Olivier's expert economist, Dr. Lowell Bassett, three days before trial. That report computed damages in the range of $900,000 to $1,100,000. Increasing the prayer, and modifying the pretrial order, from $840,000 to $1,500,000 did not change any issue in the case. In addition, as both parties correctly recognize, the jury was not bound by the amount of damages specified in the pretrial order. See generally 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Secs. 2262, 2264 (1983). The amendment permitted Olivier's expert to testify to the full amount of Olivier's damages as the expert analyzed and computed those damages. The amendment did not affect the orderly and efficient conduct of the case, and while Olivier's counsel might have been more diligent in pressing his expert for his report and opinion, there is no showing that this delay, or any delay in providing Union Pacific with the substance of the report, was willful, in bad faith, or the result of inexcusable neglect. Accordingly, under our standard articulated in United States v. First National Bank of Circle, the district court did not abuse its discretion in modifying the pretrial order.

The Expert Testimony of Dr. Bassett

Under an abuse of discretion standard of review, we will uphold a district court's decision to admit or exclude expert testimony unless it is manifestly erroneous. Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1423 (9th Cir. 1986) (citation omitted).

Both Union Pacific and Olivier agree that the testimony of Dr. Bassett was critical to the plaintiff's case. Union Pacific argues that its ability to prepare for Dr. Bassett's testimony was hindered because it did not have the substance of that testimony until the Friday before the Monday trial. Olivier points out that Union Pacific knew from the pretrial order that Dr. Bassett would testify as an expert witness regarding damages as early as four months before trial. Nonetheless, Olivier violated Rule 26(e) (1) by failing to supplement his answers to interrogatories to specify the subject matter and substance of Dr. Bassett's expected testimony. See Fed. R. Civ. P. 26(e) (1). However, if Union Pacific was caught by surprise when it was confronted with Dr. Bassett's anticipated testimony, it could have sought a continuance. Instead of doing that, it attempted to limit Dr. Bassett's testimony by objecting to him testifying as to the increased amount of damages. We cannot say that the district court abused its discretion in refusing to limit Dr. Bassett's testimony. See Cunha, 804 F.2d at 1434.

AFFIRMED.