United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR RECONSIDERATION
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is Plaintiffs Alan Barrowman and Jessica
Robertson's (collectively, "Plaintiffs") motion
for reconsideration of the court's September 19, 2017,
order. (Mot. (Dkt. # 44).) The court has considered the
motion, the relevant portions of the record, and the
applicable law. Being fully advised, the court DENIES the motion
for the reasons set forth below.
court extensively detailed the factual background of this
case in its earlier order. (See 9/19/17 Order (Dkt.
# 82) at 2-9.) Accordingly, the court limits its discussion
here to those facts relevant to the issues Plaintiffs now
January 23, 2012, Dr. Solomon Wu performed multiple
outpatient surgical procedures on Ms. Robertson's right
foot, and on February 13, 2012, he performed the same
procedures on Mr. Barrowman's right foot. (Compl. (Dkt. #
1-1) ¶¶ 3.2, 3.4.) During the operations, Dr. Wu
implanted a Cancello-Pure 10x50 millimeter Wedge,
manufactured by Defendant RTI Surgical, Inc.
("RTI") and distributed by Defendant Wright Medical
Technology, Inc. ("Wright"). (Id.
¶¶ 3.3, 3.5; 1st Bigby Decl. ¶ 1.) A different
surgeon, Dr. Rodney Graves, removed the Wedge from Ms.
Robertson's foot on March 1, 2013, and from Mr.
Barrowman's foot on February 24, 2014. (Id.
¶¶ 3.7, 3.9.)
January 23, 2015, Plaintiffs filed suit against Wright and
RTI (collectively, "Defendants") in King County
Superior Court, asserting product liability claims and
violations of Washington's Consumer Protection Act
("CPA"), RCW 19.86. (Id. ¶¶
6.1-6.3.) On May 7, 2015, Defendants removed the action on
the basis of diversity jurisdiction. (Not. of Rem. (Dkt. # 1));
see also 28 U.S.C. § 1332.
in 2013-before Plaintiffs brought this suit-Plaintiffs'
counsel investigated Dr. Wu's potential liability for
medical malpractice. (1st Bigby Decl. ¶ 3; 2d Bigby
Decl. (Dkt. # 41) ¶¶ 2-7.) In May 14, 2015, RTI
asserted an affirmative defense in its answer, alleging that
Dr. Wu caused or contributed to Plaintiffs' injuries.
(RTI Answer (Dkt. # 6) at 6.). Dr. Aprajita Nakra,
Plaintiffs' expert witness, reviewed Plaintiffs'
medical files and opined that "[t]here is no evidence
that Dr. Solomon Wu's surgical technique in either of the
plaintiff's surgeries was a contributing factor to the
graft nonunion, and "[t]he treatment received by both
the plaintiffs has been appropriate, medically necessary[, ]
and meets [the] standard of care." (1st Bigby Decl.
¶¶ 5, 11, Ex. 3 ("Nakra Rep.").) On May
3, 2017, Defendants produced a report from their expert, Dr.
Jeffrey C. Christensen, in which Dr. Christensen concluded
that Dr. Wu improperly performed the Wedge implantation
procedure. (1st Bigby Decl. ¶ 6; Christensen Rep. at
receiving Dr. Christensen's reports, Plaintiffs sought
relief from the court's scheduling order to amend their
pleadings to add a claim of medical malpractice against Dr.
Wu. (MTA (Dkt. # 34) at 1; Prop. Am. Compl. (Dkt. # 34-1)
¶¶ 7.1-7.6; 4/22/16 Order (Dkt. # 20) at 1 (setting
the deadline for joining additional parties as October 30,
2015); 2/10/17 Order (Dkt. # 24) at 4 (setting the deadline
for amending pleadings as May 3, 2017).) Plaintiffs contended
that they could not have amended their complaint earlier
because they did not know about any alleged medical
malpractice on Dr. Wu's part until receiving Dr.
Christensen's report on May 3, 2017. (MTA at 1.) Because
adding Dr. Wu-a Washington domiciliary-would deprive the
court of subject matter jurisdiction by destroying complete
diversity, Plaintiffs also sought remand to state court if
the court granted their motion to amend. (MTR (Dkt. # 36) at
September 19, 2017, the court denied Plaintiffs' motion
to amend. (See 9/19/17 Order.) The
court concluded that Plaintiffs failed to show good cause for
not seeking to amend earlier and that even if they had, leave
to amend would be futile. (Id. at 11-12, 14, 17.)
The court also denied as moot Plaintiffs' motion to
remand because without Dr. Wu's joinder, complete
diversity remained intact. (Id. at 18.)
seek reconsideration of the court's order. (See
Mot.) They argue that the court erred in finding no good
cause to seek leave to amend and in denying leave to amend as
futile. (Id. at 3-5.) If the court reconsiders and
permits amendment, Plaintiffs also move to remand to state
court. (Id. at 2.) The court now addresses the
for reconsideration are disfavored, " and 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 [the court's] attention earlier with
reasonable diligence." Local Rules W.D. Wash. LCR
7(h)(1). The court finds that Plaintiffs fail to make the
required showing of manifest error for the following reasons.