If a claim or issue is omitted from the order, it is waived.” Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 123 (5th Cir. 1986) (quoting Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982)) (holding that the district court did not abuse its discretion in determining the defendant stipulated to fact that the driver was an uninsured or underinsured motorist where the pretrial order “failed to list Stoltz's UM status as either a contested issue of fact or a contested issue of law” and the defendant stipulated that “COVERAGE UNDER THE POLICY IS NOT CONTESTED; LIABILITY IS CONTESTED.”). “The claims, issues, and evidence are narrowed by the pretrial order, thereby narrowing the trial to expedite the proceeding.”

Id. at 343 (quoting Fed.R.Civ.P. 16(e)). This court reviews the trial court's interpretation of a pretrial order only for abuse of discretion. Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 122 (5th Cir. 1986). "We are not inclined to disturb the . . . [trial] court's interpretation of a stipulation agreed upon by the parties during pretrial proceedings and approved by the court."

Accordingly, this Court has encouraged trial courts to construe pretrial orders to limit the issues actually tried. Swift v. State Farm Mut. Automobile Ins. Co., 796 F.2d 120, 123 (5th Cir. 1986). "If a claim or issue is omitted from the order, it is waived."

Flannery v. Carroll, 676 F.2d 126, 131 (5th Cir. 1982). See also Valdes, 810 F.2d at 1357; Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120 (5th Cir. 1986). 2. Planned Dissolution.

Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982) (citing cases). See also Swift v. State Farm Mut. Auto Ins. Co., 796 F.2d 120, 123 (5th Cir. 1986). In this case, on the contrary, the district court itself introduced the doctrine of substantial performance in drafting its opinion months after the trial.

We have said that the district court should construe such orders narrowly because a "failure to adhere to such a rule would bring back the days of trial by ambush and discourage timely preparation by the parties for trial." Swift v. State Farm Mutual Auto Insurance Co., 796 F.2d 120 (5th Cir. 1986). Although no pretrial order was technically entered in this case, a comparable roadmap of the contested issues existed in the pleadings, interrogatory answers, and IKK's proposed pretrial order.

The burden of proving the underinsured status of the offending motorist rests with the plaintiff. LA. REV. STAT. 22:1295(6)(d); see also Swift v. State Farm Mut. Auto Ins. Co., 796 F.2d 120, 122 (5th Cir. 1986); Campbell v. American Home Assur. Co., 258 So.2d 81, 84 (La. 1972). Louisiana Revised Statute 22:1295(6) provides three methods for establishing prima facie proof of the underinsured status of the owner and driver of the offending vehicle:

In any event, having reviewed the record carefully, the undersigned believes that the evidence does not support the jury's verdict of $900,000 in mental anguish stemming from the negative PTEC reviews. Nor does the evidence support a capped award of $300,000. Considering the specific conduct the jury found was retaliatory and on which it awarded mental anguish damages, "the award was so excessive that it `clearly exceed[ed] that amount that any reasonable man could feel the claimant [was] entitled to.'" Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 124 (5th Cir. 1986) (citing Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982)). The Court believes that Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000), supports the finding that the damages award in this case is excessive. Vadie also involved a mental anguish award on a retaliation claim by a university professor, and, as in this case, the record in Vadie was devoid of any medical evidence supporting any injury, or any specific evidence supporting the plaintiff's broad assertions of emotional injury.

That claim arises under La. Rev. Stat. Ann. § 22:1406(D) and requires plaintiff to prove the underinsured status of the offending motorist and that he is "legally entitled to recover" damages from the owner or operator of the underinsured vehicle. See La. Rev. Stat. Ann. § 22:1406d(1)(d); Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 122 (5th Cir. 1986) (citing Loupe v. Tillman, 367 so.2d 1289, 1290 (La.App. 4th Cir. 1979)). In other words, plaintiff must establish (1) that the operator of the underinsured vehicle was at fault; (2) that the operator's fault caused his damages; and (3) the extent of those damages.

Second, regardless of who bears the burden of proof, defendants waived any such defense by not pleading it in their answer or urging it in the pretrial order.Compare Swift v. State Farm Mutual Automobile Insurance Co., 796 F.2d 120, 122-23 (5th Cir. 1986) (plaintiff not required to present evidence on an element of her claim, where pretrial order contained no mention of this element, as a contested issue or otherwise) and Har-Win, Inc. v. Consolidated Grain Barge Co., 794 F.2d 985, 988 (5th Cir. 1986) (upholding exclusion of evidence concerning affirmative defense not mentioned in pretrial order) with Shell Oil Co. v. M/T Gilda, 790 F.2d 1209, 1215 (5th Cir. 1986) (plaintiff not required to present evidence on an element of its claim where pretrial order included that element as an uncontested issue). See also Morris v. Homco International, Inc., 853 F.2d 337, 342-43 (5th Cir. 1988) (in a nonjury trial, district court erred in relying on an affirmative defense neither pleaded in defendant's answer nor urged in the pretrial order).