United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion to Alter
or Amend Judgment [Doc. 83], filed on July 17, 2017.
Plaintiff responded on July 25, 2017. [Doc. 85]. Defendant
replied on August 8, 2017. [Doc. 87]. Additionally before the
Court is Plaintiff's Motion for Leave to File Surreply
[Docs. 89, 89-1], filed August 10, 2017. Defendant responded
on August 24, 2017. [Doc. 91]. Having considered the
briefing, record, and relevant law, and being otherwise fully
advised in the premises, the Court will GRANT Plaintiff's
Motion for Leave to File Surreply and GRANT IN PART and DENY
IN PART Defendant's Motion to Alter or Amend Judgment.
a three-day bench trial, the Court entered detailed Findings
of Fact and Conclusions of Law in this case. [Doc. 80]. The
Court found that the collision at issue was caused solely by
Defendant's negligence and that there was no comparative
negligence on the part of any other person or entity.
Id. at 26-28. The Court then found that some, but
not all, of Plaintiff's injuries were attributable to the
accident. Id. at 28-33. Considering all the
evidence, the Court was “not convinced the accident
happened the way Plaintiff remembers it”-i.e., that the
collision caused the train to decelerate suddenly and to such
a degree that Plaintiff was thrown about the cabin.
Id. at 28-29. Instead, the Court was convinced by a
preponderance of the evidence that, after moving from his
seat and bracing for impact, Plaintiff reacted to the
impending collision. Id. at 29. It was this reaction
that “caus[ed] his body to strike the interior of the
cabin.” Id. The Court found that Plaintiff
struck the cabin with sufficient force to cause his lower
back injuries (or, more specifically, to aggravate a
pre-existing disc herniation) and to cause a cervical strain.
Id. at 29-31. The Court was not convinced by a
preponderance of the evidence that the accident caused the
balance of his alleged neck injuries or the claimed injuries
to his shoulders and knees. Id. at 31-33. The Court
therefore awarded a portion of Plaintiff's requested past
and future medical expenses. Id. at 34-36. It also
awarded damages for past wage loss, loss of future earning
capacity, and pain and suffering. Id. at 36.
Finally, the Court awarded costs pursuant to Fed.R.Civ.P. 54
and post-judgment interest pursuant to 28 U.S.C. § 1961.
Id. The Court entered a Final Judgment concurrently
with its Findings of Fact and Conclusions of Law. [Doc. 81].
It entered an Amended Final Judgment on June 22,
filed the instant motion to alter or amend the final judgment
pursuant to Fed.R.Civ.P. 59(e). Defendant contends judgment
should be amended in its favor on two grounds. First, it
argues that the record contained no evidence on which the
Court could base its finding that Plaintiff's own
reaction to the collision caused his injuries. Defendant
contends that, while Dr. Freeman testified that Plaintiff
could have sustained his injuries through his own
volitional movement during the accident, he was offering a
hypothetical for which there was no factual basis. [Doc. 83]
at 6-8. Defendant argues that there are no underlying facts
in the record to support this alternative factual scenario
and that, in fact, Plaintiff's own testimony (that he was
thrown about the cabin as a result of the collision) directly
contravened it. Therefore, Defendant concludes, Dr.
Freeman's testimony on this matter constitutes
unsupported speculation not founded on sufficient facts, out
of line with the dictates of Fed.R.Evid. 702 and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Defendant also argues that Dr. Wellborn's
concession that Plaintiff suffered “at most” a
neck and back strain as a result of the accident did not
provide any basis for the Court to make its finding. [Doc.
83] at 5-6.
Defendant argues that the factual scenario the Court
ultimately adopted was a new theory of recovery never before
raised by Plaintiff. Defendant contends the theory was not
tried by consent in accordance with Fed.R.Civ.P. 15(b) and
that it was “deprived . . . of a fair opportunity to
defend” against the theory. Id. at 13
(internal quotation marks omitted). Namely, Defendant
contends it was deprived of the opportunity to put forth a
defense that Plaintiff's reaction constituted an
“independent intervening cause” that disrupted
the chain of causation. Id. at 12-13; [Doc. 87] at
7-9. Defendant argues it is entitled to judgment in its favor
because the Court “rejected Plaintiff's only claim
of injury.” Id. In the alternative, Defendant
requests that the Court amend its award of post-judgment
interest in accordance with 31 U.S.C. § 1304.
Id. at 13-14.
response, Plaintiff contends that the record contained
sufficient evidence on which the Court could find that
Plaintiff's injuries were caused by his reaction to the
collision. He argues that the Court could-and did-accept
certain portions of Plaintiff's testimony and reject
other portions, as was its prerogative as the trier of fact.
[Doc. 85] at 2-3. That testimony, together with the testimony
of Fermin Acosta and the reasonable inferences drawn from the
parties' experts, as well as the exhibits introduced at
trial, provided sufficient factual grounds on which the Court
could make its findings.
Defendant's second argument, Plaintiff points to the
liberal pleading requirements of Fed.R.Civ.P. 8(a)(2) and
contends that the theory of events on which the Court relied
fell within the scope of the existing pleading, such that the
Court need not consider whether there was “trial [of
the new issue] by consent.” Id. at 4-5.
Further, even if Rule 15(b) does apply, Plaintiff argues, the
Court did not abuse its discretion in determining that the
alternative theory of recovery was tried by consent.
Id. at 5-8. Plaintiff argues that he brought out
evidence of the theory at trial through the testimony of Dr.
Freeman. And, when Dr. Freeman testified, Defendant did not
object or claim surprise. Instead, it cross-examined him on
the issue and later cross-examined Plaintiff himself
regarding his reaction to the collision. Id. at 6-7.
Plaintiff also argues, in his surreply, that Defendant had
notice of the “reaction” theory before trial.
[Doc. 89-1]. Defendant had access to Fermin Acosta's
post-accident interview, during which he stated that
Plaintiff had “jumped” at the time of the
collision. In addition, in his affidavit in support of
Plaintiff's motion to exclude the testimony of Dr.
Wiechel, Defendant's expert, Dr. Freeman stated that Dr.
Wiechel “guessed” about, among other things,
“Mr. Acosta's muscular preparation and the manner
in which he braced himself, his balance, and his
reaction to the first and potentially second collision
force.” [Doc. 89-1] at 4. Plaintiff contends that
Defendant has no colorable argument that Plaintiff's
reaction constituted an “independent intervening
cause.” [Doc. 85] at 8-9. It does not matter, Plaintiff
concludes, whether he was thrown by the forces of the
collision or whether he reacted to the collision itself.
Id.; [Doc. 89-1] at 1-3.
does not contest Defendant's alternative request that the
final judgment be amended with respect to the award of
post-judgment interest. [Doc. 85] at 9.
district court may alter or amend a judgment on a motion
filed no later than 28 days after entry of the judgment.
Fed.R.Civ.P. 59(e). The court may reconsider a final decision
if the moving party shows “(1) an intervening change in
the controlling law, (2) new evidence previously unavailable,
[or] (3) the need to correct clear error or prevent manifest
injustice.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). The court “is
vested with considerable discretion” in determining
whether to grant or deny such a motion. Brown v.
Presbyterian Healthcare Servs., 101 F.3d 1324, 1332
(10th Cir. 1996). A Rule 59(e) motion is not intended to
“allow a losing party to rehash arguments previously
addressed or to present new legal theories or facts that
could have been raised earlier.” ACE USA v. Union
Pac. R.R. Co., 2011 WL 6097138, at *1 (D. Kan. Dec. 7,
2011) (unpublished). “A party's failure to present
its strongest case in the first instance does not entitle it
to a second chance in the form of a motion to
a motion to alter or amend is an “extraordinary
remedy” to be used “sparingly, ” in
recognition of the interests in finality and the conservation
of judicial resources. Torre v. Federated Mut. Ins.
Co., 906 F.Supp. 616, 619 (D. Colo. 1995); cf.
Allender v. Raytheon Aircraft Co., 439 F.3d
1236, 1242 (10th Cir. 2006) (discussing related standard
under Rule 60(b)).
may file a surreply.
to D.N.M.LR-Civ. 7.4(b), the filing of a surreply requires
leave of the Court. Surreplies are often granted “when
a party raises a new argument or new evidence in a reply
brief.” Navajo Health Found.-Sage Mem. Hosp., Inc.
v. Burwell, 110 F.Supp.3d 1140, 1183 (D.N.M. 2015). A
surreply “gives the nonmovant a chance to respond to
the new information.” Id. Defendant's
brief in chief raised two arguments: first, that the
Court's findings were not supported by sufficient
evidence, and second, that Defendant was entitled to judgment
in its favor because the Court rejected (what Defendant
characterized as) Plaintiff's only theory of recovery.
See [Doc. 83]. Plaintiff responded to the first
argument by suggesting, inter alia, that it was an
untimely Daubert argument that should have been
raised before trial. See [Doc. 85] at 3 n.2. In its
reply, Defendant countered this argument by contending that
“trial was the first time any party raised the
possibility of Plaintiff's reaction to the collision,
rather than the collision itself, as the mechanism of injury.
Dr. Freeman's expert report, disclosed during discovery,
contained no such theory.” [Doc. 87] at 2. Defendant
attached Dr. Freeman's report as an exhibit to the reply.
[Doc. 87-1]. The point of attaching the report as an exhibit
was to show that it did not place Defendant on notice of an
alternative theory of causation, i.e., that Plaintiff's
reaction to the collision caused his body to strike the
interior of the cabin. Dr. Freeman's report was not
introduced at trial, nor was it made part of the record in
connection with any pretrial motion. Thus, in that sense, it
was “new” evidence, although, obviously, the
existence of the report came as no surprise to Plaintiff.
Plaintiff seeks leave to file a surreply in order to add
context to the report, that is, to point out that Defendant
was aware (or should have been aware) of this alternative
theory of causation before trial. The Court finds that the
motion is well-taken and should be granted. The Court will
grant Plaintiff's Motion for Leave to File Surreply to
allow Plaintiff to address the arguments and evidence in
Defendant's reply pertaining to the expert report of Dr.
Freeman. The Court notes, however, that it would reach the
same result on Defendant's Motion to Alter or Amend
Judgment regardless of its consideration of the arguments in
Court's findings on causation were supported by ...