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Acosta v. United States

United States District Court, D. New Mexico

August 24, 2017

JOSE ACOSTA, Jr., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         Background

         Following 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, 2017.[1][Doc. 82].

         Defendant 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.

         Second, 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.

         In 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.

         As to 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.

         Plaintiff 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.

         Legal Standard

         A 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 reconsider.” Id.

         Granting 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)).

         Analysis

         Plaintiff may file a surreply.

         Pursuant 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 Plaintiff's surreply.

         The Court's findings on causation were supported by ...


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