Scotto v. Gorilla Ladder Company et al

Filing 96

ORDER denying 93 Motion for New Trial. Signed by Senior Judge David G Campbell on 4/18/2019.(DGC, nvo)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Allen F. Scotto,
Plaintiff,

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No. CV17-2838 PHX DGC
ORDER

v.
Gorilla Ladder Company, a Minnesota
corporation also known as Gorilla Ladders,
et al.,
Defendants.

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Plaintiff has filed a motion for a new trial pursuant to Rule 59(a), Defendants have

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responded, and Plaintiff has not replied. Docs. 93, 95. Oral argument is not necessary as

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these issues have been addressed before. See also Fed. R. Civ. P. 78(b); L.R. Civ 7.2(f).

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The Court will deny Plaintiff’s motion.

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During trial, the Court allowed each side to call an expert on ladder design and

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testing. Plaintiff argues that the Court erred in not allowing him to call an additional

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rebuttal expert on this subject. Doc. 93.

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This issue was addressed thoroughly in a five-page order entered by the Court on

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November 6, 2018. See Doc. 62. The Court will not repeat that order here, but this

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paragraph from the order summarizes the situation presented by the parties’ actions:

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Defendants ignored the Court’s April 25, 2018 expert disclosure deadline
and the Court’s August 10, 2018 summary judgment deadline. Plaintiff
ignored the Court’s [July] 27, 2018 deadline for rebuttal expert disclosures,
and disregarded the Court’s admonition that full and complete disclosures

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are required. Plaintiff also disclosed a second ladder expert, even though
the Case Management Order states that “[e]ach side shall be limited to one
retained or specifically employed expert witness per issue.” Doc. 19 at 3.
The parties have blatantly disregarded repeated orders.

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Id. at 3.

This situation arose after the Court had twice extended the deadline for

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Plaintiff’s expert disclosures. Id. at 2. The Court also found that Plaintiff had ample

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opportunity to conduct destructive testing of the ladder but failed to do so. Id. at 1-4.

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To remedy the situation presented by the parties’ mutual recalcitrance, the Court

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stated during an on-the-record conference call on November 6, 2018, that it was inclined

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to deny Defendants’ summary judgment motion summarily and preclude Plaintiff’s

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untimely and incomplete rebuttal expert from testifying. Further, in response to the

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Court’s inquiry, Defendants represented that they would not argue at trial that Plaintiff’s

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expert should have engaged in destructive testing of the ladder. Id. at 4 n. 1. When the

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Court suggested this resolution, Plaintiff’s counsel said: “I think the Court’s ruling

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makes sense and puts us with one expert per side. I think that’s fair. As long as they’re

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not allowed to make the argument that you needed to [do] destructive testing on this

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ladder in order to submit admissible opinions.” Court’s Livenote Transcript, 11/6/18

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at 51. Thus, Plaintiff’s counsel expressly agreed on the record that preclusion of his

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rebuttal expert, combined with a prompt denial of Defendants’ summary judgment

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motion, was a fair resolution of the situation created by the parties’ repeated disregard of

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the Court’s orders. Plaintiff now argues that such preclusion was error sufficient to

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warrant a new trial. Doc. 93.

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Because “Rule 59 does not specify the grounds on which a motion for a new trial

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may be granted,” the Court is bound by historically recognized grounds. Zhang v. Am.

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Gem. Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). These include verdicts against

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the weight of the evidence, damages that are excessive, and trials that were not fair to the

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moving party. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007); see also

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Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir.

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2000). The only potentially applicable ground in this case – that the trial was not fair to
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Plaintiff – does not exist. Plaintiff’s rebuttal expert was precluded because her report was

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untimely, incomplete, and violated the case management order’s limitation of one expert

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per issue per side. And this preclusion was balanced by the Court’s summary denial of

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Defendants’ motion for summary judgment and by the limitation placed on arguments

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Defendants could make at trial. Plaintiff’s counsel agreed on the record that this action

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was fair, and the Court continues to hold that view today. Plaintiff was allowed to

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present a retained ladder expert at trial, and the jury considered the opinions of that expert

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in reaching a defense verdict.

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IT IS ORDERED that Plaintiff’s motion for a new trial (Doc. 93) is denied.
Dated this 18th day of April, 2019.

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