United States District Court, E.D. Wisconsin
BEVERLY AHNERT, Individually and as Executrix of the Estate of Daniel Ahnert, Deceased. Plaintiffs,
EMPLOYERS INS. CO. OF WAUSAU, SPRINKMANN SONS CORP., WISCONSIN ELECTRIC POWER CO., PABST BREWING CO., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION OF DAUBERT RULINGS (DKT. NO. 151)
PAMELA PEPPER, United States District Judge
January 4, 2018, in a hearing that lasted over four hours,
the court considered and ruled on the parties' motions to
exclude experts under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), as well as
the majority of their motions in limine, ahead of
the trial scheduled for June 4, 2018. Dkt. No. 147. As part
of that ruling, the court granted defendant Pabst Brewing
Company's motion to bar, under Daubert, the
reports, opinions and testimony of Kenneth Garza, dkt. no.
118, and granted the Daubert motion of defendants
Sprinkmann, Employers Insurance Company and WEPCO to exclude
Garza's testimony, dkt. no. 122.
February 20, 2018, the plaintiffs filed a thirty-six page
motion, asking the court to reconsider its orders barring
them from using Garza as an expert. Dkt. No. 151. They
attached to that motion thirty-seven exhibits-almost 2, 000
pages of documents. Dkt. Nos. 151-1 through 151-37. In spite
of the volume of the filing, the plaintiffs have not met
their burden to demonstrate that the court should reconsider
its January 4, 2018 rulings.
parties filed eleven Daubert motions and motions
in limine; three of the motions in limine
contained fifty-four separate sub-motions. Dkt. Nos. 125,
126, 127, 129. At the January 4, 2018 hearing, after oral
argument, the court granted the defendants' motions to
exclude Kenneth Garza's reports, opinions and testimony
as an expert. Dkt. Nos. 118, 122. In analyzing Garza's
reports under the Daubert standard, the court found
that his training and background gave him the knowledge and
expertise to qualify as an expert in the area of industrial
hygiene. The court concluded, however, that the plaintiffs
had not demonstrated that Garza's methods-particularly in
relation to the facts of this case-were reliable. The court
initially expressed concern that Garza's
“general” report contained nothing “that in
any way, shape, or form ha[d] any specific connection to this
case, ” dkt. no. 146 at 76; later, it acknowledged that
Garza's “specific” report mentioned the WEPCO
plant and deposition testimony of some of plaintiff Daniel
Ahnert's co-workers, id. at 81. Despite that
detail, the court concluded that Garza's proffered
opinions lacked sufficient facts or data, and that he had not
explained his methodology. Id.
Plaintiff's Motion for Reconsideration
plaintiffs ask only that the court reconsider its orders
granting the defendants' motions to bar Garza's
reports, opinions and testimony. The plaintiffs “do[ ]
not seek reconsideration of other rulings made by the court
on the record of the argument held on January 4, 2018.”
Dkt. No. 151 at 2.
plaintiffs base their motion on (1) “the
Daubert factors”; (2) Garza's facts, data,
and assumptions; (3) Garza's new declaration attached as
Exhibit 1 to the motion for reconsideration; (4) 296 pages of
testimony from a Daubert hearing (involving Garza)
in an unrelated Milwaukee County Circuit Court case; and (5)
“the absence of a Daubert challenge in the
defense motions to certain opinions or report statements of
Garza.” Id. at 3. Noticeably absent from the
plaintiffs' prolix motion is any reference to a rule
authorizing the motion to reconsider, or to the standard for
reviewing such motions.
Standards of Review: Motion for Reconsideration
Federal Rules of Civil Procedure do not expressly recognize a
‘motion to reconsider.'” United States v.
Roth, 2010 WL 1541343 at *2 (E.D. Wis., April 10, 2010).
There are several rules and standards that allow a court to
reconsider a prior order or judgment; which of those rules or
standards applies appears to depend on the stage of the case,
and the finality of the order or judgment.
Civ. P. 54(b) allows a court to revise, at any time, an
“order or other decision . . . that adjudicates fewer
than all the . . . rights and liabilities of fewer than all
the parties” but “does not end the action as to
any of the claims or parties.” Fed.R.Civ.P. 59(e)
allows a party to ask a court to alter or amend a judgment.
Under Fed.R.Civ.P. 60(b), a party may ask a court for relief
from a “final judgment, order, or proceeding”
under six specific circumstances. Finally, although the
“law of the case” doctrine holds that “a
court generally should not reopen issues decided in earlier
stages of the same litigation, ” United States v.
Harris, 531 F.3d 507, 513 (7th Cir. 2008) (citing
Agostini v. Felton, 521 U.S. 203, 206 (1997)), that
doctrine does authorize reconsideration of a previous ruling
in the same litigation under certain circumstances.
the plaintiffs failed to cite any of the above rules or
doctrines because they construed a comment that the court
made to one of the plaintiffs' lawyers as an invitation
to take a second bite of the apple. In issuing its oral
ruling at the January 4, 2018 hearing, the court stated that
there was “just simply no link, meaning that
there's no discussion either of any of the premises,
there's no discussion of any of the specific products,
there's no discussion of anything really that
particularly directly relates to this case” in
Garza's reports. Dkt. No. 146 at 76, lines 16-20. Counsel
for the plaintiffs asked to respond to that conclusion,
clarifying that “Mr. Garza does cite in his report the
testimony about the WEPCO's Oak Creek Powerhouse.”
Id. at 79, lines 10-11. The court acknowledged that
correction, and apologized for the misstatement. Id.
at 79, lines 12, 20; 80, lines 20-22, 25; 81, lines 1-3. The
court determined, however, that while it had been overbroad
in stating that Garza had made no mention of any of the
premises, “that still doesn't address the reliable
methodology issue.” Id. at 81, lines 15-23.
Counsel for the plaintiffs began to argue in response,
stating, “Well, I would again-, ” but the court-
having made its decision, and being ready to move on-cut him
off, stating, “Mr. McCoy, if you want to file a motion
to reconsider, I'd be happy to entertain it.”
Id. at 81, line 25; 82, line 1.
for the plaintiffs appears to have taken this statement as an
invitation to take a second kick at the cat-a second
opportunity to make the arguments that the plaintiffs had
made (unsuccessfully) in their written responses to the
Daubert and in their oral presentation at the
January 4, 2018 hearing. That was not the intent of the
court's statement that if counsel wanted to file a motion
to reconsider, the court would be happy to entertain it. The
court made the statement, in part, to signal that it would
hear no further argument on the question of Garza's
testimony. It assumed that, if the plaintiffs elected to file
a motion to reconsider, they would present it under one of
the applicable rules or doctrines governing motions to
“reconsider.” Because they did not, the court
considers each possible option.
Motion to Alter or Amend Judgment Under Rule 59(e)
59(e) allows a party to file a motion asking the court to
alter or amend a judgment, as long as the party files that
motion “no later than 28 days after the entry of the
judgment.” The court did not enter a judgment on
January 4, 2018, so there is no judgment for the court to
alter or amend. Rule 59(e) does not apply.
Motion for Relief from a Final Order Under Rule
60(b) allows a party to seek relief from an
“order” for any of six reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly-discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...