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Poore-Rando v. United States

United States District Court, W.D. Washington, Tacoma

November 17, 2017

SAMANTHA POORE-RANDO, et al., Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.


          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on the motion for reconsideration of Plaintiff Samantha Poore-Rando. Dkt. 56. Also before the Court is Plaintiff's motion to strike. Dkt. 72 at 1-2. The Court denies these motions for the reasons stated below.

         I. BACKGROUND

         Plaintiff Samantha Poore-Rando filed her complaint on February 6, 2016. Dkt. 1. Plaintiff complains of complications, particularly an anastomotic leak, arising from a medical procedure 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.

         On July 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, Plaintiff moved for reconsideration, ascribing two potential errors to the Court's previous decision. Dkt. 56. In her first argument, Plaintiff claimed that the Court erred in concluding that the Medwatch report issued on April 25, 2014, was generated as a result of Plaintiff's attorney contacting Ethicon about the allegedly defective stapler. Dkt. 56 at 2-3. On October 5, 2017, the Court denied the motion for reconsideration on this ground, noting that the evidence that Plaintiff presented to support her motion did not actually rebut the uncontroverted evidence that (1) the Medwatch report was created only after the office of Plaintiff's attorney contacted Ethicon, and (2) Dr. Sebesta did not actually file any report, notwithstanding the listing of Dr. Sebesta as the “initial reporter” on the face of the Medwatch report because of his role as the treating physician. Dkt. 64.

         Plaintiff also argued for reconsideration on the basis that the Court erred when it noted that she “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). Plaintiff pointed the Court's attention to her expert disclosure and report filed on August 4, 2017. See Dkt. 49. In light of this report, the Court concluded that it was mistaken in stating that the record lacked such a report when it entered the order granting summary judgment.

         On October 5, 2017, the Court requested a response from Ethicon on the issues of “(1) whether good cause exists under Rule 16(b) to amend the scheduling order as to permit the late filing of Plaintiff's 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.” Dkt. 64. On October 16, 2017, Ethicon filed its response. Dkt. 66. Ethicon also filed a declaration by Dr. C. Neal Ellis. Dkts. 69-71. On October 19, 2017, Plaintiff replied, simultaneously moving to strike the declaration of Dr. Ellis on the basis that it was unsigned. Dkt. 72.


         A. Motion to Strike

         Plaintiff moves to strike the Declaration of Dr. Ellis (Dkt. 69) on the basis that the first copy filed by Ethicon was unsigned and the signed version was filed a day late. Dkt. 72 at 1-2. Ironically, Plaintiff makes this request notwithstanding the fact her motion for reconsideration is predicated on an expert report that was filed nearly a month after the scheduling order's deadline, without leave, after the deadline had already lapsed for her opposition to Ethicon's summary judgment motion. Ethicon diligently filed its praecipe to attach the appropriately signed declaration the day after the unsigned (but otherwise identical) version was timely filed. Dkt. 70. None of the cases cited by Plaintiff stand for the proposition that such a praecipe should be rejected. Plaintiff's motion to strike is DENIED.

         B. Motion for Reconsideration

         Motions for reconsideration are governed by Federal Rule of Civil Procedure 60 and Local Rules W.D. Wash. LCR 7(h). LCR 7(h) provides:

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 ...

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