United States District Court, W.D. Washington, Tacoma
ORDER DENYING IN PART PLAINTIFFS' MOTION FOR
RECONSIDERATION, RESERVING RULING IN PART, AND REQUESTING A
BENJAMIN H. SETTLE, United States District Judge
matter comes before the Court on the motion for
reconsideration of Plaintiffs Samantha Poore-Rando and
Matthew Rando (“Plaintiffs”). Dkt. 56. The Court
denies the motion in part for the reasons stated below.
Samantha Poore-Rando filed her complaint on February 6, 2016.
Dkt. 1. Plaintiffs complain of complications, particularly an
anastomotic leak, arising from a medical procedure for Ms.
Poore-Rando which included the use of a surgical stapler
manufactured by Defendant Ethicon Endo-Surgery, Inc.
(“Ethicon”). Id. She brings claims
against Ethicon asserting (1) products liability pursuant to
the Washington Products Liability Act (“WPLA”),
and (2) a tortious violation of her right to privacy. Since
the filing of the complaint, all defendants except for
Ethicon have been dismissed. Dkts. 34, 43.
13, 2017, Ethicon moved for summary judgment. Dkt. 44. On
September 7, 2017, the Court entered an order granting and
denying in part the motion. Dkt. 55. On September 20, 2017,
Plaintiffs moved for reconsideration. Dkt. 56.
for reconsideration are governed by Federal Rule of Civil
Procedure 60 and Local Rules W.D. Wash. LCR 7(h). LCR 7(h)
Motions for reconsideration are disfavored. The court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
Ninth Circuit has described reconsideration as an
“extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12
James Wm. Moore et al., Moore's Federal Practice
§ 59.30 (3d ed. 2000)). “[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Id. (quoting 389 Orange Street Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
ascribe two potential errors to the Court's previous
decision. First, they argue that the Court erred in
concluding that the Medwatch report issued on April 25, 2014,
was generated as a result of Plaintiffs' attorney
contacting Ethicon about the allegedly defective stapler.
Dkt. 56 at 2-3. Specifically, they supplement the record with
emails indicating that their attorney's office contacted
Ethicon by email on May 29, 2014 (Dkt. 57 at 9-10), but the
initial Medwatch report was issued as early as April 25, 2014
(Dkt. 57 at 6).
providing these emails, Plaintiffs seem to suggest that the
first contact Plaintiffs' attorney's office had with
Ethicon did not occur until May 29, 2014, and that the
declaration of Kristi Geier relied upon in the Court's
previous order was therefore inaccurate or false. However,
the email provided with Plaintiffs' reconsideration
motion indicates that their attorney's office actually
contacted Ethicon prior to May 29, 2014, as the
paralegal's email states: “Thank you for responding
to my call to follow-up on the Poore-Rando claim.” Dkt.
57 at 9. This statement in the May 29 email establishes that
Plaintiff's attorney's office had already contacted
Ethicon by telephone and further suggests that Plaintiffs had
already submitted some sort of “claim” to
Ethicon. Accordingly, Plaintiffs have failed to rebut Kristi
Geier's affidavit explaining that the Medwatch report was
generated in response to notice from a paralegal for
Plaintiffs' counsel regarding a claim of an allegedly
defective stapler, and the Court declines to reconsider its
conclusion that the proffered hearsay statement of Dr.
Sebesta lacks circumstantial guarantees of trustworthiness.
Plaintiffs argue that the Court erred in concluding that
Plaintiff “failed to submit any expert testimony to
support a theory regarding how the design or construction of
the stapler could have resulted in a misfire or improper
staple formation . . . .” Dkt. 56 at 3 (quoting Dkt. 55
at 8). They draw the Court's attention to their expert
disclosure and report that were filed on August 4, 2017, the
same day as Ethicon's reply on summary judgment, nearly a
month after the deadline established in the Court's Rule
16 scheduling order. See Dkt. 49. In light of this
report, the Court was mistaken in concluding that the record
lacked such a report when it entered its order granting
summary judgment. The expert report opines that Ms.
Poore-Rando's anastomotic leak was the result of either
an improper use of the stapler by Dr. Sebesta or a
manufacturing defect in the stapler. Dkt. 50 at 10. Notably,
Plaintiffs' expert witness also reported that, while the
absence of the stapler itself prevented him from
“render[ing] a specific reason for the anastomotic leak
found after Ms. Poore-Rando's surgery, . . . [e]ither of
these opinions will explain the unfortunate outcome . . .
.” Id. at 10. Although Plaintiffs failed to
reference or rely upon their expert witness's report when
opposing summary judgment and the report was filed after the
scheduled deadline, the Court is nonetheless inclined to
conclude that, absent substantial prejudice to Ethicon, good
cause exists to modify the scheduling order as necessary to
receive and consider the expert report. See Dkt. 58
response to a motion for reconsideration shall be filed
unless requested by the court. No motion for reconsideration
will be granted without such a request.” W.D. Wash.
Local Rules LCR 7(h). In light of the expert report submitted
on August 4, 2017, the Court requests that Ethicon submit a
response on the following issues: (1) whether good cause
exists under Rule 16(b) to amend the scheduling order as to
permit the late filing of Plaintiffs' expert disclosure
and report, and (2) whether the testimony included in the
expert report creates a genuine dispute of material fact over
the existence of a defect.
on the foregoing, Plaintiff's motion (Dkt. 56) is
DENIED in part to the extent that it seeks
reconsideration on the issue of whether the proffered hearsay
statement of Dr. Sebesta is supported by circumstantial
guarantees of trustworthiness and should be admitted under
the residual exception of Fed.R.Evid. 807. The Court also
RESERVES ruling in part and requests that
Ethicon respond to the motion for reconsideration to the
extent that Plaintiffs seek reconsideration on the basis that
their late-filed expert report creates a genuine dispute over
the alleged existence of a defect.
may submit their response to the motion for reconsideration,
not to exceed 20 pages, no later than October 16, 2017.
Plaintiffs may submit a reply, not to exceed 10 pages, no
later than October 20, 2017, on which date the motion will be