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Derrick v. Standard Nutrition Co.

United States District Court, D. New Mexico

June 28, 2019

RONNY DERRICK and ANGIE DERRICK, a married couple, Plaintiffs,
STANDARD NUTRITION COMPANY, a Nebraska Corporation, dba A-C Nutrition, LP, a Texas limited partnership; JOHN DOES 1-5; and XYZ Corporate or Business Entities 1-5, Defendants.



         Ronny 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.)

         Plaintiffs 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.)

         Defendant 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 this motion.

         For the 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).

         I. Legal Standard

         Plaintiffs 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.

         “Rule 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.

         II. Plaintiffs have identified no reason sufficient for the Court to reconsider its decision on the parties' motions for summary judgment.

         Plaintiffs 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.

         A. The Court will deny Plaintiffs' motion to reconsider pursuant to the Rule 59(e) standard of review.

         “Grounds 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.

         1. Plaintiffs fail to establish that any “new” evidence was previously unavailable.

         Plaintiffs 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).)

         Judge 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.)

         On 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. (Doc. 102.)

         Also on 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.

         Defendant 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.[1](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 n.2.)

         In 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.

         In 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”[2] (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.

         2.Plaintiffs fail to demonstrate clear error or manifest injustice.

         “The 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.

         With 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.)

         Consideration of the Woodworker's factors supports exclusion of Dr. Box as an expert and of the new evidence.

         Plaintiffs 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. 2017).

         Plaintiffs 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 ...

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