United States District Court, W.D. Washington, Seattle
JOANNE K. LIPSON, Plaintiff,
ON MARINE SERVICES CO. LLC, Defendant.
ORDER DENYING MOTION FOR RECONSIDERATION
JAMES L. ROBART, District Judge.
This matter comes before the court on Plaintiff's motion for reconsideration of the court's ruling (12/4/13 Order (Dkt. # 260)) excluding expert testimony based on an industry study by C. Washbourne titled "Silicosis and Abestos Hazards Associated with the Manufacture and Use of Profax" (the "Washbourne Report"). ( See Mot. (Dkt. # 315).) Having considered the submissions of the parties, the balance of the record, and the relevant law, the court DENIES Plaintiff's motion for reconsideration.
This is an asbestos case. Plaintiff alleges that her husband's exposure to asbestos while working at a steel mill was a substantial factor in his development of mesothelioma. ( See generally 2d Am. Compl. (Dkt. # 302).) Defendant's products, called "hot tops, " were used at the mill to insulate ingot molds into which molten steel was poured. (Mot. at 2.) One of the issues in this case is the extent to which, if any, quantities of asbestos in Defendant's hot tops survived the heating associated with steelmaking. Defendant maintains that the asbestos degraded and detoxified when exposed to the heat from the molten steel. ( Id .) Plaintiff's expert Susan Raterman relies in part on the Washbourne Report to support her opinion that "significant quantities of asbestos" in Defendant's products survived the steelmaking process. ( See, e.g. , Raterman Decl. (Dkt. # 166-1) ¶ 14.)
The Washbourne Report states:
In laboratory experiments conducted at Foseco International Ltd. it was found that 1 lb. (454 gm.) of Profax ash contained a total of 0.142 gm. of respirable matter, of which 0.058 gr. was asbestos.... Assuming that the asbestos particles average 30 microns in length × 1 micron in diameter, this means that 1 lb. of Profax can give rise to 756 million particles of asbestos.
(Udo Decl. (Dkt. # 351-1) Ex. 2 at 21.) The court previously excluded expert testimony based on this report for two reasons: (1) the Washbourne Report does not provide any details about the referenced experiments, including whether the measurements were taken after the hot tops were heated and, if so, at what temperature and for how long, and (2) the products tested in the study contained crocidolite (blue asbestos), whereas Defendant's hot tops contained amosite (brown asbestos), and there was no "thorough comparison showing substantial similarity" between the two products. (12/4/13 Order at 2.)
The first trial between the parties ended in a mistrial. ( See Dkt. # 293.) A second trial will begin in a few weeks. ( See Dkt. # 304.) Plaintiff now moves for reconsideration of the court's order excluding the report and expert testimony based on this report. ( See generally Mot.) Plaintiff argues that new evidence eliminates the two foundational deficiencies identified by the court in its prior ruling. ( Id. )
1. Motions for Reconsideration
Pursuant to the Local Rules of the Western District of Washington, motions for reconsideration are disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the prior ruling, or (b) new facts or legal authority which could not have been brought to the attention of the court earlier with reasonable diligence. See Local Rules W.D. Wash. LCR 7(h)(1). A motion for reconsideration must be filed within fourteen days after the order to which it relates is filed. Id. at 7(h)(2).
Additionally, under Federal Rule of Civil Procedure 60(b), a court may relieve a party from an ...