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Ahnert v. Employers Ins. Co. of Wausau

United States District Court, E.D. Wisconsin

May 2, 2018

BEVERLY AHNERT, Individually and as Executrix of the Estate of Daniel Ahnert, Deceased. Plaintiffs,


          HON. PAMELA PEPPER, United States District Judge

         On 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.

         On 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.

         I. Background

         The 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.

         II. Plaintiff's Motion for Reconsideration

         The 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.

         The 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.

         A. Standards of Review: Motion for Reconsideration

         “[T]he 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.

         Fed. R. 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.

         Perhaps 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.

         Counsel 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.

         1. Motion to Alter or Amend Judgment Under Rule 59(e)

         Rule 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.

         2. Motion for Relief from a Final Order Under Rule 60(b)

         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 ...

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