F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 15 2003
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 CURTIS D. BENNETT,

           Plaintiff-Appellee,
 v.                                                            No. 02-3094
 EMERSON ELECTRIC COMPANY,                            (D.C. No. 00-CV-2335-JWL)
                                                              (D. Kansas)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before TACHA, Chief Judge, BRISCOE, Circuit Judge, and SHADUR, District
Judge.**


       Plaintiff Curtis Bennett filed suit against his former employer, defendant Emerson

Electric Company, alleging various federal and state claims, including breach of implied

contract of employment. Bennett prevailed on his breach of contract claim at trial, and

the district court subsequently denied Emerson’s post-trial motion for judgment as a

matter of law, for new trial, or for remittitur. Emerson appeals the denial of that motion.



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
            The Honorable Milton I. Shadur, Senior District Judge, Northern District of
Illinois, sitting by designation.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                            I.

       Bennett is a resident of Lawrence, Kansas. From 1988 to 1998, he worked as a

sales representative for ShopSmith, a Dayton, Ohio-based company that manufactured

and sold a high-end, multi-purpose power tool. At some point in 1998, Bennett learned

that Emerson was introducing a new line of power tools to be sold at Home Depot stores

under the brand name RIDGID. Bennett contacted Emerson about employment.

       In late October 1998, Emerson was in negotiations with Home Depot to implement

the “Trailblazer” program. The gist of the program was to promote the RIDGID line of

power tools, as well as other tools manufactured by Emerson and sold by Home Depot, by

sending specially-equipped tractor-trailer rigs to NASCAR races throughout the nation

and to grand openings of Home Depot stores. Emerson's marketing personnel were to

accompany the rigs and conduct public demonstrations of the tools to create a “carnival-

type” atmosphere. Although the program was initially conceived as a one-year agreement

between Emerson and Home Depot, it was renegotiated to three years.

       Bennett, who was fifty-six years of age, was interviewed by several Emerson

executives for a sales/marketing position in the Trailblazer program. According to

Bennett, he informed his interviewers that he was not looking for a short-term position,

but was looking for an opportunity to finish his working career. In response, interviewer

Dave Pringle, the president of Emerson’s tool division, allegedly stated “No problem.”


                                            2
Suppl. App. at 48. Interviewer Tim Ferry, an Emerson vice-president and general

manager, allegedly stated that Emerson had a tentative three-year commitment with Home

Depot to market the RIDGID line of power tools. Further, by his own admission, Ferry

informed Bennett that it was his intent to keep all Trailblazer employees on board at least

for the length of the program.

       On November 3, 1998, Emerson sent a letter to Bennett confirming an “offer of

employment . . . as National NASCAR/Events Manager reporting to Brian Sponsler, VP,

Sales & Marketing - Home Depot.” App. at 332. It is uncontroverted that the offer letter

was silent as to the intended length of his employment, i.e., whether Bennett would be an

employee at will or be hired for a specific length of time. Further, although Emerson’s

official employment application contained statements notifying applicants they could be

terminated at any time for any reason, Bennett was not asked to complete and sign such

an application. Bennett accepted the offer and began working for Emerson on or about

November 15, 1998.

       On November 20, 1998, Bennett leased a vehicle in his own name for business

use. According to Bennett, he chose a three-year lease to coincide with the three-year

planned length of the Trailblazer marketing program. He personally signed the lease and

paid the up-front expenses, with the understanding that his expenses would be

reimbursed, at least in part, by Emerson as a monthly automobile allowance.

       Within a month of beginning work, Bennett was reprimanded by Sponsler, his


                                             3
immediate supervisor. Sponsler cited misunderstandings over the allowable automobile

allowance, per diem for meals, questions regarding expenses, the hiring of support

personnel away from ShopSmith, and personal integrity. Bennett was again reprimanded

by Sponsler on January 11, 1999. At that time, Sponsler questioned Bennett’s

“commitment to [his] position and [his] judgement.” App. at 322. On February 17, 1999,

Sponsler terminated Bennett’s employment.

       Approximately three to four weeks after his employment was terminated, Bennett

contacted ShopSmith about returning to work, but ShopSmith had nothing available at

that time. Approximately four months later, ShopSmith contacted Bennett about a part-

time field representative position with no fringe benefits. Bennett accepted the offer and

worked in that capacity from August to December of 1999. In January 2000, he was

promoted to a full-time field representative position with fringe benefits.

       On July 16, 2000, Bennett was injured in the course of his employment with

ShopSmith in Houston, Texas, while he was attempting to load a 250-pound machine into

a van by himself. He sustained injuries to his knee, lower back, and hip. He

unsuccessfully tried to return to work for ShopSmith in September 2000. According to

Bennett, his injuries have medically limited him to lifting no more than twenty pounds

and driving no longer than one-half hour at a time. He has not worked since September

2000, and there is some evidence in the record that he is now considered permanently

disabled.


                                             4
       Bennett filed suit against Emerson on July 25, 2000, asserting age discrimination,

violation of the Kansas Wage Payment Act, fraudulent inducement, negligent

misrepresentation, and breach of implied contract of employment. The district court

denied Emerson's motion for summary judgment. A jury returned a verdict in favor of

Bennett on his breach of contract claim, and judgment was entered in the amount of

$236,707.49 on that claim. Emerson filed a post-trial motion for judgment as a matter of

law, for new trial, or for remittitur, which was denied in its entirety.

                                              II.

Denial of motion for judgment as a matter of law

       Emerson contends the district court erred in denying its post-trial motion for

judgment as a matter of law. Emerson argues the evidence presented at trial was legally

insufficient to support Bennett’s claim for breach of implied contract. Emerson also

argues that Bennett’s evidence of damages was legally insufficient to entitle him “to any

lost wages, car allowance or benefits.” Aplt. Br. at 25.

       We review de novo a district court’s ruling on a motion for judgment as a matter of

law. See Bangert Bros. Constr. Co. v. Kiewit Western Co., 

, 1285-86 (10th

Cir. 2002). “Judgment as a matter of law is appropriate only ‘[i]f during a trial by jury a

party has been fully heard on an issue and there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue.’” 

(quoting Fed. R.

Civ. P. 50(a)(1)). When we review the record, we “will not weigh evidence, judge


                                               5
witness credibility, or challenge the factual conclusions of the jury.” Brown v. Gray, 

, 1285 (10th Cir. 2000). Instead, we “consider the evidence, and any inferences

drawn therefrom, in favor of the non-moving party.” 

implied contract. As noted, Emerson argues the evidence presented at

trial was legally insufficient to establish the existence of an implied-in-fact contract of

employment. Emerson asserts that any statements made to Bennett during the interview

process were, at most, “general platitudes” or “vague assurances” that did not manifest an

intent on the part of Emerson to contract with Bennett. Aplt. Br. at 19. Emerson also

points to the following evidence which, in its view, demonstrates there was no contract:

(1) there was no mention in Bennett’s resume that he was seeking a guaranteed contract

of employment; (2) the written offer of employment by Emerson to Bennett did not

mention a specific term of employment; (3) no other Emerson tool division employee had

an employment contract; and (4) after his termination, Bennett wrote a letter to the

president of Emerson’s tool division stating there “was no doubt when [he] accepted th[e]

position that it was for a minimum of one year, with the strong possibility of going two

additional years without any problem.” App. at 337.

       In rejecting Emerson’s post-trial motion for judgment as a matter of law, the

district court addressed these arguments:

              According to defendant, there is no legally sufficient evidentiary
       basis for a reasonable jury to have found in favor of plaintiff on his breach
       of contract claim. In large part, defendant simply rehashes various
       arguments that it made in support of its summary judgment motion. For

                                               6
       example, defendant again emphasizes that Dave Pringle, defendant’s
       president, and Tim Ferry denied making the specific representations that
       plaintiff alleges they made during his initial interviews with defendant. The
       court rejected this argument at the summary judgment stage and does so
       again here. While Mssrs. Pringle and Ferry may have denied making any
       statements to plaintiff concerning a three-year contract or other term of
       employment, plaintiff presented evidence to the jury from which it could
       have reasonably concluded that plaintiff was promised a position with
       defendant for as long as the Trailblazer program lasted, or a minimum of
       three years. Plaintiff testified, for example, that he advised Mr. Ferry that
       he was not looking for a short-term, temporary position and that he wanted
       an opportunity to “finish out [his] working career.” According to plaintiff,
       Mr. Ferry responded that defendant was going to secure a three-year
       commitment with Home Depot, suggesting that plaintiff would have a job
       for at least the duration of the Trailblazer program. In any event, despite his
       subsequent denials, Mr. Ferry testified in his deposition (testimony that was
       presented to the jury during plaintiff’s case-in-chief) that it was his intent to
       keep all Trailblazer employees, including plaintiff, on board at least for the
       length of the program. Mr. Ferry further testified that he may have
       conveyed that intent to interviewees, including plaintiff. From this
       evidence, the jury could reasonably find the existence of a three-year
       contract.

App. at 205-06 (internal citations omitted).

       We find no basis for overturning the district court’s conclusions. It is significant

to note that Emerson has not specifically challenged the court’s conclusions, nor has it

attempted to refute the evidence relied on by the court. Instead, Emerson points to

evidence that could be construed in its favor. Obviously, that is not sufficient to establish

it is entitled to judgment as a matter of law when, as here, there is evidence in the record

that supports the court's conclusions.

       Emerson also contends the evidence presented at trial was insufficient to establish

a “meeting of the minds” between Bennett and Emerson regarding all essential terms of

                                               7
the alleged contract. Although not framed as such, this argument appears to amount to a

challenge to the district court’s jury instructions on Bennett’s breach of contract claim.

There is no indication in the record on appeal, however, that Emerson specifically

challenged the instructions on the breach of contract claim. It is true that Emerson

submitted proposed instructions, including an instruction discussing a “meeting of the

minds” concept. App. at 77-78 (“if you find that it was not the reasonable belief of both

parties that the plaintiff would be employed until his retirement, then you must find that

there was no implied-in-fact contract”). However, it is apparent from the record that the

district court chose not to use that instruction. Further, although Emerson has included in

its appendix a portion of the jury instruction conference, there is no mention therein of the

breach of contract instructions. In particular, Emerson made no mention of its proposed

instruction, nor did it object to the district court’s proposed instruction. Thus, we

conclude any challenge to the district court’s jury instructions has been waived.

       Even assuming Emerson’s argument is not a challenge to the district court’s jury

instructions, we are not persuaded it has any merit. Under Kansas law (which the parties

agree is controlling), “there must be a ‘meeting of the minds on all essential terms’ to

form a binding contract.” Nicholas v. Nicholas, 

, 937 (Kan. Ct. App. 2003);

Dougan v. Rossville Drainage Dist., 

, 352 (Kan. 2000) (same). In our view,

the evidence cited by the district court is sufficient to establish such a “meeting of the

minds.” In particular, Ferry’s comments to Bennett during the interview process


                                              8
reasonably could have been perceived by the jury as demonstrating assent to a contract of

employment for the intended three-year life of the Trailblazer program.

       Finally, Emerson contends that even if the evidence was sufficient to establish the

existence of a valid contract, termination of the contract was justified in light of Bennett’s

failure to properly perform his job duties. It is uncontroverted that Bennett’s immediate

supervisor reprimanded Bennett on December 11, 1998, and January 11, 1999. However,

a review of the trial testimony contained in Bennett’s supplemental appendix indicates

there were genuine issues of material fact concerning the legitimacy of the criticisms. For

example, there were disputed issues of fact concerning whether Bennett adequately

performed his job duties at a NASCAR race in Daytona, Florida. Further, the jury was

specifically instructed that, in order to prevail on his claim for breach of contract, Bennett

had to establish that he “performed or was willing to perform in compliance with the

contract.” App. at 126 (Instr. No. 19). In light of the jury’s verdict, it is clear that the

jury resolved this issue in Bennett’s favor, and Emerson has failed to meet its burden of

demonstrating that the evidence presented at trial was insufficient to warrant the jury’s

finding.

       Damages. Emerson contends that Bennett’s testimony regarding his earnings at

Emerson and ShopSmith was “contrary to representations made to the Social Security

Administration . . . and as set forth on plaintiff’s W-2 forms.” Aplt. Br. at 25. Thus,

Emerson argues that Bennett’s evidence “was self-contradictory, unreliable and should be


                                               9
disregarded.” 

asserts that “any evidence regarding calculation of

benefits should be excluded based upon lack of foundation and inaccurate calculations.”

contends that Bennett “offered absolutely no evidence to establish

that he is unable to work or that he is incapable of securing alternative employment.” 

Emerson contends that Bennett’s “lost wages, car allowance and benefits should be

cut-off or substantially decreased due to his failure to mitigate.” 

court rejected Emerson's argument regarding the alleged discrepancy

between Bennett’s testimony and the representations he made to the Social Security

Administration on the following grounds:

       With respect to plaintiff’s evidence of lost wages, defendant maintains only
       that plaintiff’s evidence was “contradictory” and “unreliable” in that
       plaintiff’s testimony conflicted with representations he made to the Social
       Security Administration on his application for disability benefits. While
       defendant attempted to establish at trial that plaintiff’s evidence of lost
       wages was inconsistent, plaintiff explained to the jury the alleged
       discrepancies between his testimony and his Social Security application. In
       other words, defendant has already made this argument to the jury and the
       jury rejected it. In short, there was competent and adequate evidence before
       the jury regarding plaintiff’s wages.

App. at 209-10 (internal citations omitted). There is no basis in the record on appeal to

question the court's conclusion or to overturn the jury’s verdict on this point. With

respect to the issue of lost benefits, the district court stated:

       [D]efendant complains that plaintiff “offered only his own testimony
       claiming his benefits at Emerson were a percentage of his salary without
       any foundation for this opinion.” This statement is incorrect. While the
       jury certainly heard plaintiff’s testimony regarding his benefits, it also had
       the opportunity to review Exhibit 12 – a budget prepared by Brian Sponsler

                                                10
       that set out specific wages, bonuses, cost of benefits and car allowances for
       plaintiff and every other Trailblazer employee. Exhibit 12 specifically
       states that plaintiff’s total benefits package was $28,000. During his
       testimony, plaintiff used Exhibit 12 to present the jury with his lost wages
       and benefits information. Moreover, defendant did not object to plaintiff’s
       use of Exhibit 12 nor did it present any evidence suggesting that the figures
       listed on Exhibit 12 were inaccurate. Using Exhibit 12 as a basis, then,
       plaintiff was permitted to testify that his benefits were “roughly a third” of
       his total compensation package.

App. at 210-11 (internal citations and footnote omitted). Exhibit 12 is included in the

record and appears to support the district court’s analysis. In particular, it indicates that

Emerson budgeted $28,000 in annual benefits for Bennett’s position. Further, as noted by

the court, Exhibit 12 supports Bennett’s assertion that his benefits at Emerson were

“roughly a third” of his total compensation package of $81,000. App. at 211 n.4.

       Finally, the district court rejected Emerson’s “failure to mitigate” argument on the

following grounds:

       [D]efendant contends that plaintiff’s damages should be substantially
       decreased because plaintiff failed to mitigate his damages after his
       discharge from defendant and he has failed to seek alternative employment
       since his work-related injury in July 2000. With respect to plaintiff’s efforts
       immediately following his discharge from defendant, the burden was on
       defendant to prove that he failed to mitigate his damages. Defendant
       devoted very little, if any, time to this point at trial and, ultimately, failed to
       carry its burden. Moreover, with respect to plaintiff’s efforts to find
       alternative employment after his July 2000 injury, the court – prior to trial –
       concluded that plaintiff would be entitled to recover the full amount of his
       loss without any mitigation at 

(internal citation omitted).1 The record includes portions of Bennett’s

testimony where he indicated that he was unable to perform the lifting and driving

required by his ShopSmith position following his July 2000 injury. Further, there appears

to be sufficient evidence to support the jury’s finding that Bennett’s “July 2000 injury

would not have occurred but for [Emerson’s] unlawful termination of [his] employment

(i.e., that [Bennett] would not have been injured in July 2000 had he remained employed

with [Emerson]).” App. at 153 (verdict form). Taken together, this evidence appears to

rebut Emerson’s assertion that Bennett failed to adequately mitigate his post-termination

damages.



Denial of motion for new trial

       Emerson contends the district court erred in denying its alternative motion for new

trial. In support, Emerson cites its arguments in support of its motion for judgment as a

matter of law. In addition, Emerson asserts that (a) it was improper for the jury to rely on

Exhibit 12 because it was merely a “pro forma budget,” (b) the jury’s award of lost fringe

benefits was inconsistent with Bennett’s evidence, and (c) the jury misunderstood the


       1
         With respect to Bennett’s July 2000 injury, the district court also noted it held
during the October 29, 2001 telephone conference
       that if plaintiff carried his burden of proof that the . . . injury would not
       have occurred but for defendant’s conduct, then “plaintiff would be entitled
       to recovery of the full amount of his loss without mitigation because in fact
       he through no fault of his own was unable to continue to mitigate.”
App. at 220. This legal conclusion has not been challenged on appeal.

                                             12
employment-at-will doctrine. Because the arguments previously asserted by Emerson

have no merit, they will not be revisited.

       We review for abuse of discretion a district court’s denial of a motion for new

trial. Minshall v. McGraw Hill Broadcasting Co., 

, 1283 (10th Cir. 2003).

We “will reverse the denial of a motion for a new trial only if the trial court made a clear

error of judgment or exceeded the bounds of permissible choice in the circumstances.”

omitted).

       Pro forma budget. Emerson contends that Exhibit 12 was simply a pro forma

budget, and, as such, constituted no more than an estimate or forecast of what the actual

budget might have been. Aplt. Br. at 30. Thus, Emerson contends Exhibit 12 was not

reliable evidence of the amount of fringe benefits allegedly lost by Bennett as a result of

his termination. The district court addressed and rejected this argument:

              Defendant makes much of the fact that Exhibit 12 was merely a “pro
       forma” budget. Although Mr. Ferry testified that a pro forma budget is
       simply a forecast or a rough estimate of expenses, defendant did not offer
       any evidence that Exhibit 12 was inaccurate or that the expenses actually
       incurred were somehow different than projected in Exhibit 12. Thus, the
       jury could reasonably conclude that the expenses listed in Exhibit 12,
       including plaintiff’s benefits information, were accurate.

App. at 210 n.3.

       We are unable to verify from the limited record on appeal the district court’s

statement that “defendant did not offer any evidence that Exhibit 12 was inaccurate or

that the expenses actually incurred were somehow different than projected in Exhibit 12.”


                                             13
In any event, Emerson does not dispute this statement on appeal and we conclude the

district court did not abuse its discretion in rejecting the “pro forma” argument.

       Amount of lost benefits. Emerson contends the jury’s award of lost benefits bore

no relation to Bennett’s evidence. More specifically, Emerson asserts the jury calculated

Bennett’s lost benefits as sixty-eight percent of his wages, even though Bennett's

evidence (i.e., Exhibit 12) indicated that his fringe benefits amounted to approximately

forty percent of his wages. The district court rejected this argument on the following

grounds:

       First, the court does not consider issues and arguments raised for the first
       time in a reply brief. Second, defendant’s comparison is simply not a
       proper one. The jury was not instructed to base its calculation of plaintiff’s
       lost benefits as a percentage of plaintiff’s lost wages and there would be no
       basis for doing so. During the time period reflected in [verdict] question
       7(a), for example, plaintiff’s lost wages were not as great because he was
       earning wages at ShopSmith. For that same time period, however, his lost
       benefits, by comparison, were great because the benefits he received from
       ShopSmith were not nearly as favorable as the benefits he received from
       defendant. By contrast, plaintiff’s lost wages during the time period
       reflected in [verdict] question 7(b) were greater because he was not working
       at all and was earning no other wages. This, then, explains the difference in
       the percentages calculated by defendant.

App. at 212 (internal citations omitted). We conclude the district court did not abuse its

discretion in reaching these conclusions. Emerson does not dispute the court’s analysis

(or its statement that the issue was first raised in Emerson’s reply brief in support of its

motion for new trial). Instead, Emerson restates the arguments it initially presented to the

district court.


                                              14
       Jury confusion. Emerson contends that a new trial “is warranted based upon jury

confusion as evidenced by” a question sent by the jury to the court during deliberations.

Aplt. Br. at 31. More specifically, Emerson contends the “jury question demonstrate[d]

the jury’s confusion about creation of an implied contract and the general law in Kansas

of at-will employment.” 

Emerson complains that, in responding to the jury’s

question, “[t]he district court failed to specifically direct the jury to review the instruction

on at-will employment, as requested by [its counsel].” 

issue is discussed in the context of the denial of Emerson’s motion

for new trial, we note that the issue was not raised by Emerson in its motion for new trial

(nor was it mentioned by the district court in denying Emerson’s motion for new trial).

Thus, contrary to Emerson’s assertions, the issue does not constitute a legitimate basis for

granting a new trial. In other words, Emerson has waived the issue to the extent it might

constitute a basis for granting a new trial.

       Out of an abundance of caution, we will briefly discuss the events giving rise to

the issue. During deliberations, the jury sent a note to the district court asking: “In

general is there an implied contract between an employee and the employer that the

employee is employed until something happens, e.g., retirement, termination, death,

layoff, etc.?” App. at 306. The district court noted that it was “a little hard to figure out

what [the jury] [was] asking,” 

answering: “Whether or not there is an

implied contract and what its terms may be are both questions of fact for you to decide,


                                               15
and the Court is unable to provide you any more detailed answer to your question.” 

       Emerson’s counsel requested that the jury be referred to Instruction No. 21 (which

discussed an employer’s ability to discharge an employee for cause, notwithstanding the

existence of an employment contract). Bennett's counsel disagreed, arguing that doing so

“would unduly underscore the defendant’s position in this case.” 

The court

agreed with Bennett’s counsel and overruled defense counsel’s objection/suggestion:

               I agree. It’s not my practice really to, in the face of a question like
       this one, that it is not clear what really the thrust of their question may be – I
       mean, for me to intelligently answer it any more than the answer that I’m
       proposing would require me to know what they really were driving at here
       and whether they mean, if you assume there is an implied contract, then
       what are the terms? And I think that’s really what they are talking about,
       that in the event there were such an implied contract, is there some legal set
       of terms? I think that – but I’m guessing. And I think that the appropriate
       thing to do is simply to tell them that they should – that we can’t decide
       that. Perhaps I should tell them both are questions of fact for you to decide
       under all of the Court’s instructions. That at least points them back to the
       instructions in general – Mr. Hauber points out there are a lot of instructions
       about contracts here – and the Court’s not able to provide you any more
       detailed answer to your question. That at least gives them that frame of
       reference to deal with.

       Contrary to Emerson’s assertion, the jury’s question does not necessarily indicate it

was confused about the law that applied to Bennett’s breach of contract claim. Indeed, as

noted by the district court, it is unclear precisely what the jury was asking. Considered in

context, the court acted well within its discretion in responding to the jury’s question. See


                                              

. Minnstar, Inc., 

, 1370 (10th Cir. 1996) (“A district court's actions in

responding to questions from the jury, as well as supplemental instructions given to the

jury, are reviewed for abuse of discretion.”).



Denial of motion for remittitur

       Emerson contends the district court erred in denying its alternative motion for

remittitur. Emerson asserts the damages awarded by the jury for lost wages, benefits, and

car allowance were not supported by the evidence. In addition, Emerson asserts the court

failed to reduce the amount of lost wages, benefits, and car allowance “by interim

earnings or because of plaintiff’s failure to mitigate.” Aplt. Br. at 32.

       We review a district court’s ruling on a motion for remittitur for abuse of

discretion. O’Neal v. Ferguson Constr. Co., 

, 1257 (10th Cir. 2001). To

establish an abuse of discretion in this context, the appellant “carries the heavy burden of

demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the

weight of the evidence.” Campbell v. Bartlett, 

, 1577 (10th Cir. 1992).

Further, “absent an award so excessive or inadequate as to shock the judicial conscience

and to raise an irresistible inference that passion, prejudice, corruption or other improper

cause invaded the trial, the jury’s determination of the facts is considered inviolate.” 

that Emerson’s arguments in support of its request for remittitur are,

as noted by the district court, simply a restatement of the arguments it made in support of


                                              17
its motion for judgment as a matter of law and/or new trial. Having rejected those

arguments, we also conclude there was no basis for granting remittitur.



Amendment of pretrial order

       In discussing the district court’s ruling on its motion for remittitur, Emerson

contends that Bennett’s damages should have been limited to the amounts listed in the

pretrial order entered on June 7, 2001, totaling $137,185.00. In support of this

contention, Emerson complains the district court permitted Bennett to amend the pretrial

order the day before trial to seek lost wages and benefits totaling $679,667.00. In other

words, Emerson is effectively asserting that the court erred in allowing this amendment to

the pretrial order.

       We review for abuse of discretion a district court’s ruling on a motion to amend a

pretrial order. Koch v. Koch Indus., Inc., 

, 1222 (10th Cir. 2000). “A

pretrial order, which measures the dimensions of the lawsuit, both in the trial court and on

appeal, may be modified ‘only to prevent manifest injustice.’” Davey v. Lockheed Martin

Corp., 

, 1208 (10th Cir. 2002) (quoting Fed. R. Civ. P. 16(e)). “The party

moving to amend the order bears the burden to prove the manifest injustice that would

otherwise occur.” 

issues and defenses of the lawsuit are defined by the

terms of the order, total inflexibility is undesirable.” 

proceedings in the district court, Bennett alleged two alternative


                                               18
damage scenarios: one that included damages arising from his July 2000 injury (while

working for ShopSmith), and one that did not. As a result of an apparent oversight on the

part of Bennett’s counsel, the pretrial order included only the latter damage figure (i.e., it

did not include damages related to the July 2000 injury). Bennett sought to amend the

pretrial order to increase the total amount of alleged damages from $137,185.00 (the

amount associated with the lower damage scenario) to $679,667.00 (the amount

associated with the higher damage scenario). In doing so, Bennett argued that the higher

damage figure was alleged in his expert's report and addressed in the expert's deposition.

       The district court granted Bennett’s motion to amend the pretrial order, stating:

               I started my analysis by looking at the report of the plaintiff’s expert
       that was dated February 13, 2001, and I found in there that, in fact, the
       plaintiff’s expert did make two separate calculations, one which arrived at
       the $137,000-plus figure, which was premised on a netting out, taking into
       account the earnings that hypothetically could have been earned at the
       alternative employment, and the $679,667 recovery, which was a figure that
       didn’t offset any wages that might have been earned from alternative
       employment based upon the fact of the accident that occurred.
               So the defendant certainly was on notice as of the receipt of the
       defendant’s expert report that the plaintiff’s claim for damages depended
       upon two separate alternative theories there as to what it might happen to
       be.
               At the time of the deposition counsel for the defendant asked
       questions about Exhibit 5 of the report, at page 27, for example, of the
       deposition, and it was explained to him by the expert exactly what [was] the
       function of that particular report. So, again, I think defendant was on
       notice. It appears to me that the final pretrial order in this case was, pure
       and simple, a mistake in limiting the damage claim to $137,000, and I also
       further conclude that there is no unfair prejudice to the defendant. The
       concerns that I expressed this morning about ability to cure any unfair
       prejudice have been alleviated in my mind by finding that going back to last
       February this information about the $679,000-plus recovery was part of the

                                              19
       discovery that had been exchanged in this case. So I think there was plenty
       of opportunity for the defendant to deal with that, to depose intelligently
       about it, to come up with other evidence that the defendant might have
       wanted to rebut it; and I think the fact that the defendant has continued to
       process the potential of other witnesses and/or documents to deal with
       whether or not the plaintiff remains disabled and so forth is indicative of the
       fact that the defendant did, in fact, recognize to a certain extent at least what
       the lay of the land was.
               So I am going to permit amendment of the final pretrial order to
       prevent manifest injustice here, and the claim involving the $679,667
       recovery will be inserted in the pretrial order in that respect.

App. at 253-55. We conclude the district court did not abuse its discretion in allowing the

amendment. As the court noted, Emerson was well aware of the $679,667.00 damage

figure, and amendment of the pretrial order to include that figure was necessary to

prevent manifest injustice to Bennett.

       AFFIRMED.

                                                   Entered by the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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