United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR RECONSIDERATION
BENJAMIN H. SETTLE United States District Judge.
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.
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.
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.
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.
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.
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.
Motion to Strike
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.
Motion for Reconsideration
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 ...