Frustrated Court Denies Plaintiffs’ Motion to Reconsider Exclusion of Kenneth Garza Due to Lack of Authority U.S. District Court for the Eastern District of Wisconsin, May 2, 2018

WISCONSIN — In this case set for trial on June 4, 2018, the plaintiffs filed eleven motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and various motions in limine. After hearing and argument, the court granted defendant Pabst Brewing Company’s motion to bar, under Daubert, Kenneth Garza’s reports, opinions, and testimony, and granted the Daubert motion of defendants Sprinkmann, Employers Insurance Company and WEPCO’s to exclude Garza’s testimony. The court found that although Garza’s training and background gave him the knowledge and expertise to qualify as an expert in the area of industrial hygiene, the plaintiffs had not demonstrated that his methods were reliable, especially since his general report contained nothing specific to the facts of this case. The plaintiffs filed a motion to reconsider, which the court denied.

The plaintiffs based their motion to reconsider on: (1) the Daubert factors; (2) Garza’s facts, data, and assumptions; (3) Garza’s new declaration attached as Exhibit 1 to the motion for reconsideration; (4) 296 pages of testimony from a Daubert hearing (involving Garza) in an unrelated Milwaukee County Circuit Court case; and (5) the absence of a Daubert challenge in the defense motions to certain opinions or report statements of Garza. The court noted: “Noticeably absent from the plaintiffs’ motion is any reference to a rule authorizing the motion to reconsider, or to the standard for reviewing such motions.”

While the Federal Rules of Civil Procedure did not expressly recognize a motion to reconsider, the court discussed various other federal rules and case law in seeking authority allowing for this motion. Specifically, Rule 54(b) allowed a court to review non-final orders, but as noted by several courts, motions to reconsider “‘are viewed with disfavor…'”. Motions to reconsider may address newly discovered evidence. However, the plaintiffs did not argue that any of the 37 exhibits attached to their motion or any of the three exhibits filed as supplemental authority constituted newly discovered evidence. “Rather, after over eight years of litigation and a scant four months before trial, the plaintiffs have filed a bevy of exhibits that are newly created or newly produced, but decidedly are not newly discovered.” The court summarized the lengthy steps taken in litigation. In filing these documents after the hearing, “…the plaintiffs have followed a disturbing pattern that has emerged over the course of the litigation in the consolidated cases—a practice of filing, amending or supplementing pleadings or documents after deadlines have expired, one that has contributed to the procedural quagmire of this litigation.”

The plaintiffs did not argue that the district court’s decision to bar Garza’s testimony constituted a wholesale disregard of controlling precedent. While the plaintiffs argued that the court’s conclusion that Garza’s methodology was unreliable, nothing in the plaintiffs’ hundreds of pages of reconsideration material demonstrated a manifest error of fact or law. In contrast, neither Garza’s reports nor his deposition testimony provided any basis for the court or the defendants to assess his methodology for reliability.

The district court also analyzed the plaintiffs’ motion for reconsideration under the “law of the case” exception, which authorized reconsideration if there was a compelling reason, such as a change in the law, that makes clear that the earlier ruling was erroneous. Here there was no change or clarification in the law, and the plaintiffs did not argue that the court’s decisions were clearly erroneous. The court also rejected the plaintiffs’ arguments that they should be allowed to present certain of the conclusions/opinions Garza stated in an “amended” report on the sole basis that the defendants did not specifically challenge those opinions/conclusions.

Read the full decision here.

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