839 F.2d 1404 (10th Cir. 1988), 85-1800, Marino v. Otis Engineering Corp.

Docket Nº:85-1800, 85-1957.
Citation:839 F.2d 1404
Party Name:John L. MARINO, d/b/a Wishbone Oil & Gas, Plaintiff-Appellant, Cross-Appellee v. OTIS ENGINEERING CORPORATION, Defendant-Appellee, Cross-Appellant.
Case Date:February 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1404

839 F.2d 1404 (10th Cir. 1988)

John L. MARINO, d/b/a Wishbone Oil & Gas,

Plaintiff-Appellant, Cross-Appellee


OTIS ENGINEERING CORPORATION, Defendant-Appellee, Cross-Appellant.

Nos. 85-1800, 85-1957.

United States Court of Appeals, Tenth Circuit

February 23, 1988

Page 1405

Robert D. Edinger (William R. Burkett and James W. Morris, III, with him on the briefs), of Linn & Helms, Oklahoma City, Okl., for plaintiff-appellant, cross-appellee.

Rodney J. Heggy of Cheek, Cheek & Cheek, Oklahoma City, Okl., for defendant-appellee, cross-appellant.

Before ANDERSON, TACHA and TIMBERS [*], Circuit Judges.


John L. Marino d/b/a Wishbone Oil and Gas ("Marino") sued Otis Engineering Corp. ("Otis") in federal court, based on diversity of citizenship, alleging negligence in the manufacture and installation of a device known as a packer, which is installed in oil and gas wells to assist in the extraction of oil and gas. Marino sought damages of $1,985,146.00 resulting from the alleged failure of a packer installed by Otis in one of Marino's wells. Oklahoma law governs.

Following a jury verdict in favor of Otis, Marino's motion for a new trial was denied. Marino appeals that denial, essentially relying on two arguments: First, that the trial court erred by admitting evidence of contributory negligence by Marino when Otis had not pleaded that defense, and the district court had previously granted a motion

Page 1406

in limine prohibiting evidence on a contributory negligence defense. Second, Marino asserts that the court erred when, after an initial ruling allegedly restricting such testimony, the court permitted one of Otis's expert witnesses to testify about tests performed after his deposition and about which, therefore, Marino allegedly had no knowledge until the eve of trial, making effective trial preparation, and preparation of rebuttal evidence, impossible. Marino asserts it was surprised and prejudiced by this testimony, that the combined effect of these errors unfairly changed the course of the trial, affecting the outcome, and constituted "trial by ambush."

Otis cross-appeals. It contends that the district court erred in not awarding attorneys fees to Otis, as the prevailing party, pursuant to Okla. Stat. tit. 12 Sec. 940(A). It also seeks attorneys fees for its efforts on appeal.

Before a trial court's decision to deny a motion for a new trial will be reversed, it must have committed a clear abuse of discretion. See Ryder v. City of Topeka, 814 F.2d 1412, 1424 (10th Cir.1987); United States v. Latimer, 780 F.2d 868, 870 (10th Cir.1985). Because we find no such abuse here, we affirm the district court with the sole exception of its ruling denying attorneys fees to Otis. As to that issue, we are persuaded that the applicable Oklahoma statute requires an award in this case.


The controversy in this case concerns an Otis manufactured and installed packer which became stuck in Marino's well located in Oklahoma. Because it became stuck, Marino had to mill it out. He claims that this operation destroyed the productivity of the well. Marino alleged that Otis was negligent in two respects, first, in installing the packer in the well with too many shear pins in it, so as to make it irretrievable, and second, in failing to clean sand from the top part of the packer assembly known as the tubing seal divider mandrel. Marino alleged that this sand caused the overshot tool, when it was sent to free the packer, to become stuck to the packer, making the whole assembly irretrievable. 1

On the other hand, Otis introduced evidence at trial showing that Marino modified the overshot tool by cutting triangular notches in the skirt of the overshot. Otis suggested as one of its theories of defense that these notches were responsible for the binding of the packer to the overshot.

Nonetheless, in its answer to Marino's complaint which commenced this suit, Otis failed to assert any affirmative defenses. Although in discovery Otis stated that it would amend its answer to assert the defense of contributory negligence in the notching of the overshot component of the packer assembly, it failed to do so. Nor did either party prepare a pretrial order outlining the witnesses to be called and the issues to be tried. 2 Thus, Otis did not assert any affirmative defenses by way of pretrial order. Accordingly, at the commencement of trial, Marino made a motion in limine to prevent Otis from introducing any evidence related to Marino's contributory negligence, since contributory negligence must be pleaded according to Fed.R.Civ.P. 8(c). 3

In granting the motion the court noted:

"I think it's a good motion in that the defendant has alleged or pled no affirmative defense whatever, just a general denial. So we'll just have to wait and see if any evidence is tendered on behalf of the

Page 1407

defendant or attempted to [be] tendered by way of an affirmative defense. I'm not going to allow it because you didn't plead any. The burden is still on the plaintiff to prove his case."

R.Vol. VI at 119-20.

At trial, the court refused to permit Otis to enter into evidence Defendant's Exhibit Number Seven because it related to the modification by Marino of the overshot portion of the packer assembly. The court also refused to allow Otis's counsel to ask Marino's chief man at the rig, Bill Hicks, about his modifications to the overshot. R.Vol. VI at 142-50.

During later testimony, however, Otis introduced photographs taken by one of Marino's witnesses which showed the modification to the overshot. Over Marino's objections the exhibits were admitted by the court because since the pictures were taken by Marino's witness the court found "there could be no surprise." 4 Again, Marino objected when Otis introduced Defendant's Exhibits 61 and 62 which were also photographs of the overshot. The judge nonetheless admitted the exhibits for a limited purpose noting:

"The jury will be told again that the defendant herein has raised no defense. They have not pled any affirmative defense but they deny the plaintiff's claim, so they are entitled to try and disprove anything that the plaintiff has attempted to establish; and if it does tend to rebut or disprove any of the evidence that the plaintiff has offered, it will be received for that purpose; for no other."

R.Vol. VI at 259.

Later in the trial, Otis attempted to amend its answer and provide the court with a pretrial order, so that it could raise the notching issue as contributory negligence. In denying this request the court stated:

"Now, I'm not going to allow the evidence on the notching for any purpose other than it may tend to disprove your claim that the negligence of the defendant proximally (sic) caused the whole thing; and as far as I'm concerned, you can get in almost as much evidence, the defendant can, as he could otherwise, except you're not going to be given any instructions on any affirmative defenses because you didn't plead any; but any evidence that might tend to show that it was not the defendant's negligence that caused this, is going to be received in evidence."

R.Vol. VI at 395-96. After this clarification both sides referred to the notching of the overshot throughout the remainder of the trial.

The court's decision to permit evidence of Marino's modification to the overshot for purposes of disproving causation only, supports Marino's contention that the broad sweep of the ruling on the motion in limine was altered during trial. However, the court's decision to admit the contested evidence was not error unless the admission constituted a clear abuse of discretion. See Robinson v. Audi NSU Auto Union Aktiengesellschaft, 739 F.2d 1481, 1483 (10th Cir.1984); May v. Interstate Moving & Storage Co., 739 F.2d 521, 524 (10th Cir.1984). "A ruling on the threshold of trial does not preclude the court changing its ruling based on other developments during trial." Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987) (quoting Zehner v. Post Oak Oil Co., 640 P.2d 991, 995 (Okla.Ct.App.1981)).

Marino argues that the court did abuse its discretion because according to Fed.R.Civ.P. 8(c) Otis's failure to plead Marino's negligence as an affirmative defense waives that defense and bars evidence on the point as a matter of law. Radio Corp. of Am. v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir.1970); see also Int'l Bhd. of Elec. Workers Locals 12, 111, 113 & 969 v. Professional Hole Drilling, Inc., 574 F.2d 497, 500 (10th Cir.1978); State Farm Mut. Auto Ins. Co. v. Mid-Continent Cas. Co., 518 F.2d 292, 296 (10th Cir.1975); C. Wright & A. Miller, Federal

Page 1408

Practice and Procedure: Civil Sec. 1278 (1969). However, a distinction may be drawn--and was drawn by the court below--between the introduction of evidence in support of an affirmative defense and the introduction of the same evidence to refute the plaintiff's allegations of causation raised in the complaint and denied in the answer. Here, the court refused to permit the evidence in question to be considered for any purpose other than the refutation of the plaintiff's prima facie case. It refused to give an instruction to the jury regarding contributory negligence, thus guaranteeing that the evidence would not be used other than to disprove the plaintiff's case. See Radio Corp., 424 F.2d at 17. Thus, to the extent that Marino's notching of the overshot is relevant to the question of causation, the evidence of notching in the context accepted by the district court "merely negates an element of the plaintiff's prima facie case ... it is not truly an affirmative defense and need not be pleaded despite rule 8(c)." Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55, 57 (8th Cir.1983) (quoting...

To continue reading