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9. What is the best way for the manufacturer's attorney to seek relief from the court's ruling on the pretrial statement?
The manufacturer's attorney is concerned that trying many of the facts and issues listed in the pretrial order would reveal litigation strategies important in other actions pending against the manufacturer.
A pharmaceutical retailer sued a drug manufacturer in federal court for antitrust and unfair-competition violations under federal and state law. After the parties completed discovery, the retailer submitted a pretrial narrative statement designating a broad set of facts and issues to be tried. The manufacturer disputed the statement and submitted a much narrower one. At the final pretrial conference, the court entered its final order, ruling in favor of the retailer's broader statement as the one the court would read to the jury during voir dire and would use to define the facts and issues to be tried.
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A is incorrect. Appeal from the final pretrial order is not possible because there is no final judgment in the action. Further, if the manufacturer's attorney does not seek to modify the final pretrial order at the trial-court level, the issue will not be preserved for appeal. The attorney should move to modify the order by demonstrating that manifest injustice would result if it is not modified. Fed. R. Civ. P. 16(e). If the court rejects that motion, then the attorney may be able to challenge the court's ruling on appeal, where it will be reviewed for an abuse of discretion. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1236 (10th Cir. 2000).
B is incorrect. Appeal from any adverse ruling on the objection is not possible because there is no final judgment in the action. Further, merely objecting at the trial-court level will not suffice to preserve the issue for appeal.
C is incorrect. Objecting at the trial-court level will not suffice to preserve the issue for appeal. Additionally, a motion to delay the trial does not advance the manufacturer's attorney's goal of modifying the final pretrial order.