United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
and Angie Derrick (Plaintiffs), owners of a horse breeding
program, have brought suit against Standard Nutrition Company
(Defendant), a manufacturer of animal feed. Plaintiffs
contend that Defendant manufactured and sold them feed
contaminated with a substance (monensin) that caused injury
and death to many of their horses. On May 8, 2019, the Court
granted in part Defendant's motion for summary judgment
and dismissed several of Plaintiffs' claims due to their
failure to secure a causation expert to support their theory
that their horses were injured or died due to the alleged
monensin poisoning. (See Doc. 113.) Plaintiffs have
moved the Court to reconsider its May 8, 2019 Memorandum
Opinion and Order. (See Docs. 119 at 1-19; 120.)
also ask the Court to reconsider United States Magistrate
Judge Stephan M. Vidmar's decision in an April 12, 2019
Memorandum Opinion and Order (Doc. 104), which denied
Plaintiffs' motion for sanctions based on spoliation of
evidence. (See Docs. 119 at 19-24; 68.)
asks the Court to strike Plaintiffs' motions because they
are untimely and do not comply with local rules, they are
based on unauthenticated and inadmissible hearsay evidence,
and they are based on evidence and arguments that have been
presented to the Court previously. (See Doc. 123.)
Defendant has also filed a motion in limine seeking “an
evidentiary ruling that bars any evidence, argument, or
reference to horse deaths, horse injuries, emotional
distress, or monetary damage at trial.” (See
Doc. 115 at 2.) Plaintiffs have failed to file a response to
reasons explained below, the Court will grant Plaintiffs'
motion to supplement (Doc. 120) and will consider the
attached exhibits, deny Plaintiffs' motion to reconsider
(Doc. 119), deny Defendant's motion to strike as moot
(Doc. 123), and grant Defendant's motion in limine as
unopposed (Doc. 115).
ask the Court to reconsider its rulings pursuant to Federal
Rules of Civil Procedure 59 and 60. (Doc. 119 at 2.) These
two rules, however, apply to motions filed after judgment has
been entered and do not provide a basis for the relief
Plaintiffs seek. See Anderson Living Tr. v. WPX Energy
Prod., LLC, 312 F.R.D. 620, 642 (D.N.M. 2015)
(discussing three categories of motions to reconsider);
accord Price v. Philpot, 420 F.3d 1158, 1167 n.9
(10th Cir. 2005). Because the “Court's partial
summary judgment ruling was not a final judgment[, ]”
Plaintiffs' motion to reconsider “is considered
‘an interlocutory motion invoking the [Court's]
general discretionary authority to review and revise
interlocutory rulings prior to entry of final
judgment.'” Fye v. Okla. Corp. Comm'n,
516 F.3d 1217, 1223 n.2 (10th Cir. 2008) (quoting Wagoner
v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)).
Such authority stems from Federal Rule of Civil Procedure
54(b). See Price, 420 F.3d at 1167 n.9.
54(b) provides that a district court can freely reconsider
its prior rulings.” Med Flight Air Ambulance, Inc.
v. MGM Resorts Int'l, No. 17-CV-0246 WJ/KRS, 2018 WL
1997292, at *5 (D.N.M. Apr. 27, 2018) (citing Lujan v.
City of Santa Fe, 122 F.Supp.3d 1215, 1238 (D.N.M.
2015)). “In addition, the rule ‘puts no limit or
governing standard [on] the district court's ability to
do so, other than that it must do so before the entry of
judgment.'” Id. (quoting Lujan,
122 F.Supp. at 1238 (internal quotation marks omitted)). The
Tenth Circuit has stated that a district court
“may look to the standard used to review a
motion made pursuant to . . . Rule 59(e)[, ]”
Ankeney v. Zavaras, 524 Fed.Appx. 454, 458 (10th
Cir. 2013) (emphasis added), but it “has not cabined
district courts' discretion beyond what [R]ule 54(b)
provides[, ]” Lujan, 122 F.Supp. at 1238
(citing Been v. O.K. Indus., Inc., 495 F.3d
1217, 1225 (10th Cir. 2007)). Thus, in revisiting a previous
order in Med Flight Air Ambulance, United States
Chief District Judge William P. Johnson was “guided by
concerns of judicial economy, avoiding piecemeal litigation,
and the posture of all the parties involved.”
See 2018 WL 1997292, at *6. And in Lujan,
United States District Court Judge James O. Browning
considered (1) “how thoroughly the earlier ruling
addressed the specific findings or conclusions that the
motion to reconsider challenge[d]”; (2) “the
case's overall progress and posture, the motion for
reconsideration's timeliness relative to the ruling it
challenges, and any direct evidence the parties . . .
produce[d]”; and (3) the grounds courts use to consider
a motion to reconsider brought under Rule 59(e). 122
F.Supp.3d at 1238-39; see also Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The
Court finds that, regardless of the standard it uses,
Plaintiffs' motion to reconsider should be denied.
Plaintiffs have identified no reason sufficient for the Court
to reconsider its decision on the parties' motions for
assert that the Court should reconsider its rulings on
summary judgment because: (1) they have introduced “new
and previously unavailable scientific evidence that
irrefutably establishes causation”; (2) they submitted
evidence that was previously available, inadvertently
omitted, and creates a dispute of fact; (3) the Court erred
in restricting Dr. Box's testimony. (See Doc.
119.) Plaintiffs have failed to persuade the Court that it
should amend its rulings.
The Court will deny Plaintiffs' motion to reconsider
pursuant to the Rule 59(e) standard of review.
for granting a motion to reconsider pursuant to Rule 59(e)
include: ‘(1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest
injustice.'” Ankeney, 524 Fed.Appx. at 458
(quoting Servants of the Paraclete, 204 F.3d at
1012). As Plaintiffs have not cited an intervening change in
the controlling law, the Court will analyze their motion only
under the second and third grounds.
Plaintiffs fail to establish that any “new”
evidence was previously
contend that the lab reports submitted to the Court on June
6, 2019, constitute “new” evidence previously
unavailable and provide sufficient grounds for
reconsideration of the Court's ruling on summary
judgment. (See Doc. 119 at 1, 3, 19.) A look at the
factual and procedural history of this litigation precludes
such a finding. Plaintiffs discovered the first two deceased
horses in December 2016, and the second two deceased horses
five and seven days later, also in December 2016.
(See Doc. 58-D at 153:15-19, 162:23-163:8, 179:2-5,
180:10-15.) Dr. Box took tissue samples from the first two
horses, but the samples had broken down too much to yield
conclusive results regarding their cause of death. (Docs.
58-F at 3, 6; 73-5 at 2.) Dr. Box informed Plaintiffs that
there would “have [to] be fresh deaths in order to
learn any more'” about what had harmed the horses.
(Doc. 100 at 6.) Despite the fact that Plaintiffs filed this
lawsuit in November 2017, Plaintiffs disregarded Dr.
Box's instructions and failed to perform any testing on
the next two horses that died in December 2017. (See
Docs. 58-D at 153:14-21, 180:4-18; 100 at 3 (admitting
Defendant's Material Fact No. 14 that Plaintiffs did not
have the horses that died in December 2017 evaluated,
necropsied, or sampled).)
Vidmar entered the Scheduling Order in May 2018 and set
October 29, 2018, as the termination date for discovery.
(See Doc. 25 at 2.) On October 22, 2018, Plaintiffs
filed an untimely motion to amend the scheduling order to
extend the expert report deadline and argued that the
“Scheduling Order should be amended to allow for
completion of fact discovery and expert analysis.”
(See Doc. 65 at 7; see also Doc. 66 (Mem.
Op. & Order denying Mot. to Am.).) Plaintiffs mentioned a
need to complete the depositions of certain witnesses, but
they did not note any plans to euthanize horses to obtain lab
results. (See Id. at 6-7.)
November 16, 2018, in response to Defendant's motion for
summary judgment, Plaintiffs' counsel, Mr. Laurence
Berlin, filed a Rule 56(d) declaration and asked the Court to
“defer considering the motion” until the parties
had completed three depositions and Defendant had disclosed
certain documents. (See Doc. 67 at 1 n.1.) Again,
Plaintiffs did not mention any plans to euthanize horses.
(See id.) Plaintiffs never sought leave to file a
late substantive response to the motion for summary judgment.
Rather than granting the motion for summary judgment as
unopposed pursuant to Local Rule 7.1(b), see D.N.M.
LR-Civ. 7.1(b), the Court on March 20, 2019, ordered
Plaintiffs to respond. (Doc. 96.) After requesting an
extension (see Doc. 98), Plaintiffs responded on
April 1, 2019. (Doc. 100.) It is in this brief that
Plaintiffs first mentioned they had euthanized two horses on
March 29, 2019, and expected results from tissue samples
“shortly.” (Id. at 5.) Defendant filed a
reply to its motion for summary judgment on April 8, 2019.
April 8, 2019, the Texas A&M Veterinary Medical
Diagnostic Laboratory (TVMDL) released its report on the
analysis of one of Plaintiffs' euthanized horses.
(See Doc. 120-1 at 2.) Plaintiffs did not file a
motion seeking leave of the Court to file a supplemental
brief to introduce this new evidence.
filed a motion to exclude Plaintiffs' proposed expert,
Dr. Box, on April 22, 2019. (Doc. 106.) Plaintiffs filed two
responses to this motion. (Docs. 107; 110.) In each response,
Plaintiffs alluded to the TVMDL lab report, but they failed
to attach the report to their responses.(See
Docs. 107 at 3; 110 at 4.) Accordingly, the Court did not
consider the lab report in its ruling on the parties'
motions for summary judgment. (See Doc. 113 at 3
their motion to reconsider, Plaintiffs assert that they gave
Defendant notice that one or more of the horses would need to
be euthanized “months” before they actually
euthanized the horses. (Doc. 119 at 4.) Mr. Berlin stated to
the Court that he “informed opposing counsel of the
impending need to euthanize horses” in late January
2019. (See Doc. 107 at 3 n.2.) Thus Plaintiffs knew
as early as January 2019 that they would euthanize a horse
and would potentially have relevant evidence to introduce
regarding causation, but they did not alert the undersigned.
short, Plaintiffs declined to evaluate tissue samples from at
least one horse that died naturally in 2017. Lacking
conclusive evidence of the damage done by the alleged
monensin exposure, they delayed making the admittedly hard
decision to euthanize one of their remaining affected horses
until after discovery had closed and the dispositive motions
deadline had passed. Yet, even after they made that decision
in January 2019, they waited approximately two months to
euthanize the horse. And even more damning to their cause
now, after they received the evidence that they argue
“irrefutably establishes causation” (Doc. 119 at 1),
they waited another two months before submitting that
evidence to the Court. They had an opportunity to supplement
the evidence to support their motion for summary judgment.
They had another opportunity to supplement the
record in response to Defendant's motion to exclude Dr.
Box. But Plaintiffs chose to wait until after the Court had
ruled on their dispositive motions. Their late revelation of
the evidence does not mean that it was “previously
unavailable, ” it was simply tardy.
fail to demonstrate clear error or manifest
Tenth Circuit has defined ‘clear error' as
‘an arbitrary, capricious, whimsical, or manifestly
unreasonable judgment.'” Thymes v. Verizon
Wireless, Inc., No. CV 16-66 KG/WPL, 2016 WL 9777487, at
*2 (D.N.M. Sept. 28, 2016) (quoting Wright ex rel. Tr.
Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236
(10th Cir. 2001)). “Although the Tenth Circuit has not
specifically defined ‘manifest injustice' in the
Rule 59(e) context, other courts have defined manifest
injustice as ‘more than just a clear and certain
prejudice to the moving party, but also a result that is
fundamentally unfair in light of governing law.'”
Id. (quoting Smith v. Lynch, 115 F.Supp.3d
5, 12 (D.D.C. 2015); citing In re Green Goblin,
Inc., Bankr. No. 09-11239 ELF, 2012 WL 1971143, at *1
(Bankr. E.D. Pa. May 31, 2012) (“In order for a court
to reconsider a decision due to ‘manifest
injustice,' the record presented must be so patently
unfair and tainted that the error is manifestly clear to all
who view it.”)). Plaintiffs do not explicitly argue
that the Court's decision was arbitrary, capricious, or
fundamentally unfair. (See Doc. 119.) Instead, they
assert: (1) reconsideration is appropriate in light of their
late introduction of certain pages of an exhibit that they
inadvertently omitted from their response to Defendant's
motion for summary judgment (id. at 10-11); and (2)
the Court erred in limiting Dr. Box's testimony and in
not admitting the new evidence (id. at 16-18). The
Court will take up the matter of Dr. Box's testimony and
the new evidence first.
respect to this issue, Plaintiffs first contend that the
Court should admit the new evidence and Dr. Box's expert
testimony pursuant to Woodworker's Supply, Inc. v.
Principal Mutual Life Insurance Co., 170 F.3d
985 (10th Cir. 1999). (Id. at 15.) Second, they
argue that regardless of whether Dr. Box testifies as an
expert or as a treating veterinarian, he should be allowed to
opine about causation and diagnosis. (Id. at 16-19.)
of the Woodworker's factors supports exclusion of Dr. Box
as an expert and of the new evidence.
acknowledge that they failed to disclose Dr. Box as an expert
witness in violation of Federal Rule of Civil Procedure
26(a)(2). (See, e.g., id. at 15.)
They urge the Court to allow Dr. Box to testify as an expert
and to admit the late evidence, however, because the
violations were harmless. (See id.; see
also Doc. 107 at 7-8.) “District courts have broad
discretion to exclude untimely disclosed expert-witness
testimony.” Leon v. FedEx Ground Package Sys.,
Inc., No. CIV 13-1005 JB/SCY, 2016 WL 1158079, at *7
(D.N.M. Mar. 1, 2016) (citations omitted). “On the
other hand, a district court may ‘refuse to strike
expert reports and allow expert testimony even when the
expert report violates Rule 26(a) if the violation is
justified or harmless.'” Id. (quoting
Jacobsen v. Deseret Book Co., 287 F.3d 936, 952
(10th Cir. 2002)); see also Fed. R. Civ. P. 37(c).
[T]he Tenth Circuit has identified four factors that a
district court should consider when deciding whether to
exclude expert evidence: “[i] the prejudice or surprise
to the party against whom the testimony is offered; [ii] the
ability of the party to cure the prejudice; [iii] the extent
to which introducing such testimony would disrupt the trial;
and [iv] the moving party's bad faith or willfulness.
Leon, 2016 WL 1158079, at *7 (quoting Ellsworth
v. Tuttle, 148 Fed.Appx. 653, 665 (10th Cir. 2005)
(quoting Woodworker's Supply, Inc., 170 F.3d at
993)). The Tenth Circuit has applied these same factors where
a party failed to timely disclose evidence regarding damages.
See HCG Platinum, LLC v. Preferred Prod.
Placement Corp., 873 F.3d 1191, 1196-97 (10th Cir.
contend that there is no prejudice or surprise to Defendant,
as they have already taken Dr. Box's deposition.
(See Doc. 110 at 12.) As Defendant points out,
however, the parties took Dr. Box's deposition on January
10, 2019, “over four months past [the August 29, 2018]
expert disclosure deadline[, ] . . . over several objections
by Defense Counsel[, ]” and more than ...