Protect Yourself from the Delayed Comparative Fault Defense
posted on September 17th, 2008 in Comparative Fault by clintIn Pittman v. Franklin, 2008 WL 2521222 (6th Cir.(Tenn.)), Pittman filed a medical malpractice complaint in the U.S. District Court for the Western District of Tennessee. Pittman alleged negligent placement and monitoring of an IV in her arm, which was amputated due to extravasation (the passing of liquid medications out of a vessel and into the tissues). None of the defendants asserted comparative fault. The district court entered a scheduling order with deadlines.
After proceeding with initial discovery, Defendants Vandeven, Akbik and Wessels filed motions for summary judgment. Pittman filed a notice of no opposition to Defendant Akbik’s motion for summary judgment. As part of this notice, Pittman requested that the order granting summary judgment preclude the remaining Defendants from asserting comparative fault against Akbik.
Pittman filed an amended complaint. All defendants filed answers to Pittman’s amended complaint which did not include affirmative defenses of comparative fault. Pittman filed disclosures of her expert witnesses, including an expert opinion alleging that Wessels and Franklin acted below the standard of care in their treatment of Pittman. Wessels moved for summary judgment. Pittman filed a motion of no opposition and sought to estop the remaining defendants from asserting comparative fault with respect to Wessels. After the expiration of the deadline to amend pleadings, Franklin filed a motion to amend her answer to Pittman’s second amended complaint to add an affirmative defense of comparative fault against other defendants. Pittman opposed the motion. The district court denied Franklin’s motion to amend “untimely.” Franklin appealed.
In determining whether to grant a motion to amend under Rule 15(a), the Sixth Circuit has held that a number of factors should be considered, including “undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment….” See Wade v. Knoxville Utilities Bd., 259 F.3d 452, 458-59 (6th Cir.2001). However, “delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.” Wade, 259 F.3d at 458- 59. “When amendment is sought at a late stage in the litigation, there is an increased burden to show justification for failing to move earlier.” Id.
Franklin waited more than seventeen months after the initiation of the malpractice suit before filing a motion to amend her answer and six months after the deadline to amend pleadings. Franklin was on notice regarding Pittman’s theory of negligence with respect to all defendants and yet Franklin did not allege an affirmative defense of comparative fault despite having two opportunities to do so. Thus, Franklin repeatedly failed “to cure deficiencies by previous amendments” two times prior to her belated motion to amend her answer. Moreover, Franklin failed to meet the heightened burden placed on her motion to amend because it was sought at a late stage in the litigation. Franklin offered no justification for her failure to amend her answer to include a comparative fault defense at earlier stages in the litigation. Lastly, Franklin’s motion to amend her answer to include a comparative fault defense, if granted, would have prejudiced Pittman. To allow Franklin to assert a comparative fault defense at this stage in the litigation would limit Pittman’s ability to establish the full liability of Franklin and the remaining Defendants. Therefore, the Sixth Circuit affirmed the district court’s denial of the proposed comparative fault amendment.
The lesson here is simple: have a scheduling order that contains a hard deadline for amendment of pleadings and the assertion of comparative fault. This keeps the defendant from dumping comparative fault late in the proceedings, or worse yet, after the statute of repose when a nonparty would be immune from suit.