Henry et al v. United States of America, et al
Filing
150
MEMORANDUM Opinion and Order. Signed by the Honorable Gabriel A. Fuentes on 1/5/2022. Mailed notice.(jj, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHERINE J. HENRY, as Plenary
Guardian of the estate of Wesley Jordan,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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No. 18 C 2230
Magistrate Judge Gabriel A. Fuentes
MEMORANDUM OPINION AND ORDER
In this matter before the magistrate judge on consent (D.E. 64), Plaintiff Wesley Jordan
(“Plaintiff”), through his estate administrator Katherine Henry, sued the United States of America
(“Defendant”) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, based on an
agency theory for medical negligence. Plaintiff prevailed at a bench trial, obtaining an award of
$6,194,109 in total damages. (D.E. 132, 142.) Three days after the Court entered judgment on
October 22, 2021, Plaintiff died. Defendant has moved under Federal Rule of Civil Procedure 59
to for a new trial or for an amendment in the judgment to reduce the award to $3,654,524.31,
arguing that Plaintiff’s death “clearly establishes” that instead of living for 11 years (as the parties
had expected) after his injury from a cardiac bypass surgery that went awry, Plaintiff lived only
about 6.5 years. Motion to Amend Judgment or for New Trial. (“Mot.”; D.E. 145) ⁋⁋ 4-8.
BACKGROUND
The bench trial in this matter occurred from January 25 through 29, 2021. (D.E. 107-111.)
After the evidence concluded, the Court took briefing on certain complex proximate causation
issues under Illinois law, with the briefing having concluded on February 23, 2021. (D.E. 129,
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130.) Upon consideration of that briefing, the Court issued its findings of fact and conclusions of
law on April 28, 2021, finding for Plaintiff on liability. (D.E. 132.) Unlike a jury, the Court is
not permitted to return a liability verdict, followed by a damages award, with no explanation;
rather, the Court must connect its findings to the trial evidence and consider damage awards in
comparable cases. See Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008); Jutzi-Johnson v.
United States, 263 F.3d 753, 758-59 (7th Cir. 2001). The Court took further damages briefing that
concluded on May 24, 2021. (D.E. 137, 138.) The Court entered its order on damages on October
22, 2021, awarding Plaintiff $6,194,109.00 in total damages, including $6 million in non-economic
damages for his past and future pain and suffering over his projected 11-year life expectancy.
(D.E. 141.) The 11-year life expectancy as of the time of trial and judgment was not disputed. See
United States’ Post-Trial Brief on Damages (D.E. 135) at 1 (“The United States likewise does not
contest that Jordan would be expected to live for about an additional 11 years after the date of his
injury.”) Three days after the October 22 judgment, Plaintiff died, Mot. ⁋ 3, prompting Defendant
to file the instant Motion.
ANALYSIS
Rule 59 allows litigants to seek a new trial or an amendment or altering of a judgment on
motion filed within 28 days of that judgment, whereas Rule 60 allows for “relief” from a judgment
on a motion filed within a “reasonable” time, or in the case of “newly discovered evidence” per
Rule 60(b)(2), within a year of judgment. Fed. R. Civ. P. 59, 60. In moving under Rule 59,
Defendant makes a passing reference to Rule 60(b)(2) to suggest that whereas relief under Rule
60(b)(2) is available only under “exceptional circumstances,” Defendant’s hurdle on its Rule 59(a)
and (e) is not as high because Rule 59 “requires only that the movant ‘clearly establish’ one of the
enumerated grounds for relief.” Id. ⁋ 4. The Motion calls on the Court to look closely at the
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available grounds for relief under Rule 59(e), the circumstances under which “newly discovered
evidence” might justify granting relief, and whether Plaintiff’s death three days after judgment is
a ground for either a new trial on damages or an order slashing the damages award in this case.
Whether to grant or deny relief on a Rule 59 motion is squarely within the discretion of this Court.
LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995).
I.
Courts Including the Seventh Circuit Have Recognized “Newly Discovered
Evidence” As a Possible But Rare Ground for Altering a Judgment Under Rule
59.
Rule 59 itself does not refer at all to “newly discovered evidence” as a ground for a new
trial or for altering or amending a judgment. Fed. R. Civ. P. 59. Instead, Rule 59(a) allows courts
to grant a new trial “after a non-jury trial, for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). Further, aside from
granting a new trial, courts may, after a non-jury trial and on a motion for a new trial, “open the
judgment if one has been entered, take additional testimony, amend findings of fact and
conclusions of law or make new ones, and direct the entry of a new judgment.” Fed. R. Civ. P.
59(a)(2) (emphasis added). Support for including “newly discovered evidence” as a ground for
Rule 59 relief may be found in Rule 60(b)(2), which allows motions for relief from a judgment
where newly discovered evidence “by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b).” Fed. R. Civ, P. 60(b)(2). When read together, Rules 59
and 60 suggest that if a party reasonably could have discovered the new evidence before the
running of the 28-day window for Rule 59 motions, see Fed. R. Civ. P. 59(e), that party could
advance the new evidence as grounds for relief from the judgment under Rule 59, even if Rule 59
itself does not explicitly say so.
See Advisory Committee Notes, 1946 Amendment (“By
amendment of Rule 60(b), newly discovered evidence is made the basis for relief from a judgment
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…. This ground remains, however, as a basis for a motion for new trial served not later than [the
time frame applicable to Rule 59 motions in 1946].”)
For its part, Defendant invokes Rule 59 to ask the Court to amend its findings and/or direct
the entry of a new judgment for a lesser amount, based on Plaintiff having died after judgment but
before the running of the 28-day period for filing a Rule 59 motion. See Mot. ⁋ 8 (“[Plaintiff’s
estate should not be permitted to receive an award for future injuries that newly discovered
evidence demonstrates [Plaintiff] will not suffer.”) Defendant relies on the language of Harrington
v. City of Chicago, 433 F.3d 542 (7th Cir. 2006), as support for its “newly discovered evidence”
offering a possible ground for relief under Rule 59. Mot. ⁋ 4, citing Harrington, 433 F.3d at 546
(“[a]ltering or amending a judgment under Rule 59(e) is permissible when there is newly
discovered evidence or there has been a manifest error of law or fact”). Defendant also relies on
Harrington for the proposition that Rule 59(e) presents a lower hurdle than Rule 60(b)(2) when a
movant wants to alter a judgment based on newly discovered evidence, in that the movant need
only “‘clearly establish’ one of the enumerated grounds for relief.” Id., quoting Harrington, 433
F.3d at 546. With this, the Court has no quarrel. The problem instead is that the Rule 59 hurdle,
even if lower than the one in Rule 60, still is high, particularly when it comes to “newly discovered
evidence” as a ground for relief. Aside from recurring language in published Seventh Circuit
decisions about “newly discovered evidence” being an available ground, cases in which relief was
granted on that ground are difficult to find.
Harrington, for example, did not involve any motion to alter or amend the judgment, or for
relief from a judgment, based on “newly discovered evidence.” In Harrington, the Seventh Circuit
affirmed the district court’s denial of a plaintiff’s vague motion for relief from the district court’s
dismissal of the action after plaintiff failed to participate in discovery or show up for court; the
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Harrington opinion indicates that the motion offered no authority and no new evidence at all, just
“some dates,” “some excuses,” and “promised future cooperation.” 433 F.3d at 545. The district
court construed the motion as one for relief from judgment under Rule 60(b), and the Seventh
Circuit concluded that the district court did so correctly, because the motion was “simply a plea
for the district court to excuse [the movant’s] neglect in prosecuting th[e] case; as such, the motion
advances no grounds to support Rule 59(e) relief.” Id. at 546. Harrington affirmed the district
court, id., but the case otherwise offers no guidance about how courts ought to evaluate “newly
discovered evidence” as a ground for Rule 59(e) relief or about how this Court might evaluate
Defendant’s request to amend the judgment here based on Plaintiff’s death.
Our search for guidance on how “newly discovered evidence” could justify altering or
amending a judgment under Rule 59(e) in the Seventh Circuit continued with Romo v. Gulf Stream
Coach, Inc., 250 F.3d 1119 (7th Cir. 2001), also relied on by Defendant. Mot. ⁋ 4. The Seventh
Circuit in Harrington cited Romo for support in the above passage from Harrington relied on by
the Motion. See id.; Harrington, 433 F.3d at 546. Romo, though, offers no clearer guidance to
whether a tort plaintiff’s post-judgment death could be “newly discovered evidence” in support of
a motion for relief under Rule 59 or Rule 60(b)(2). In Romo, the district dismissed an action where
the plaintiff’s service of summons failed to comply with Rule 4 but where the failure had occurred
before removal, so the applicable state procedural rule should have governed service. 250 F.3d at
1121-22. The district court dismissed the case on grounds of improper service, and the Seventh
Circuit affirmed the district court’s denial of plaintiff’s motion for relief from judgment under Rule
60(b)(6), because service was held to have complied with the applicable state rule on service. Id.
at 1122-23. In a footnote, the Seventh Circuit commented in Romo that Rule 59(e) motions present
a lesser burden, for movants, than Rule 60(b) motions, and it even added that “Rule 59(e) requires
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that the moving party clearly establish a manifest error of law or an intervening change in the
controlling law or present newly discovered evidence.” Id. at 1122 n.3 (emphasis added). But the
outcome in Romo, as in Harrington, had nothing to do with newly discovered evidence.
Nor did the outcome in Cosgrove v. Bartolotta, 150 F.3d 729 (7th Cir. 1998), the case the
Seventh Circuit cited in the Romo footnote. In Cosgrove, the Seventh Circuit treated a defendant’s
motion for a new trial as a Rule 50(b) motion for judgment notwithstanding the verdict and
reversed the district court’s striking of promissory estoppel damages on that motion, holding that
the question of reliance on the promisor’s promises should have been left for the jury. Id. at 73334. Defendant in the instant matter relies entirely on the language in Harrington, and not on any
case actually holding that newly discovered evidence warranted amending the judgment or could
be a basis for a Rule 59(e) motion.
The Court’s independent research yielded plenty of Seventh Circuit decisions containing
the rote language including “newly discovered evidence” as among the grounds for Rule 59(e)
relief, but no decision that specified how “newly discovered evidence” supported relief from a
judgment or that held Rule 59(e) relief to be permissible based on facts that did not exist at the
time of judgment but came into existence after it. In Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d
939 (7th Cir. 2013), the Seventh Circuit affirmed the district court’s summary judgment grant
concerning insurance proceeds distribution based on the validity of an assignment of those
proceeds. Id. at 952. The Seventh Circuit construed the losing party’s two reconsideration motions
as having been brought under Rule 59(e) and affirmed the district court’s denial of those motions.
Id. at 953-56. Of note for our purposes is the second of those motions, because it relied on new
evidence, namely deposition testimony, in another matter, calling into question the district court’s
finding that the assignment was supported by sufficient consideration. Id. The Seventh Circuit
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held that denial of the Rule 59(e) motion was not an abuse of discretion because (1) the new
evidence’s impact on the district court’s determination was a matter on which reasonable persons
could disagree, and (2) the deposition testimony pre-dated the summary judgment litigation and
with reasonable diligence, the movant should have discovered it. Id. at 955-56. The Beyrer panel
applied the following standard to the movant’s Rule 59(e) motion based on newly discovered
evidence:
“To succeed on a motion under Rule 59 [by invoking newly discovered evidence],
a party must show that: (1) it has evidence that was discovered post-trial; (2) it had
exercised due diligence to discover the new evidence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such
that a new trial would probably produce a new result.”
Id. at 955, quoting Envtl. Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598, 608 (7th Cir. 2008).
The losing party in Envtl. Barrier sought unsuccessfully in the district court to overturn an
arbitration award and then moved to reconsider, under Rule 59, arguing that the prevailing party
at the arbitration had concealed an affidavit that contradicted the testimony of that party’s sole
witness and thus showed the arbitration award was procured by fraud or corruption. 540 F.3d at
608. The Seventh Circuit affirmed the district court’s denial of the motion based on the district
court’s finding that the affidavit was cumulative, immaterial, and not bearing any relationship to
the arbitration award the district court was confirming. Id. at 608-09. Nothing in Envtl. Barrier
suggests anything other than that the affidavit existed before judgment and was not discovered
until later, or at least not until a time after the arbitration award at issue in the case. In any event,
the affidavit was not enough for the Court of Appeals to disturb the district court’s confirmation
of the award. See also In the Matter of Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 78 F.3d
285, 293-94 (7th Cir. 1996) (affirming district court’s denial of Rule 60(b) motion where the
“newly discovered evidence” was comprised of environmental reports that were prepared one to
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two years before the filing of the action and thus was evidence that was “not new or, to the extent
it was new, that it was not material and would not have changed the underlying decision”); Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270-71 (7th Cir. 1996) (affirming
denial of motion to reconsider summary judgment where movant “candidly confesse[d] that the
new evidence it sought to present, although unknown to it during the pendency of the crossmotions for summary judgment, could have been adduced earlier”).
Decisions such as Beyrer, Envtl. Barrier, In the Matter of Chicago, Milwaukee, St. Paul &
Pacific, and Caisse Nationale show that “newly discovered evidence,” even if it existed at the time
of trial, rarely if ever justifies amending the judgment on reconsideration. In these cases, district
courts were affirmed in their discretionary calls that the “newly discovered evidence,” although it
existed before judgment, either was not sufficiently material to the outcome or could have been
discovered earlier. Thus the “newly discovered evidence” in those cases fell outside of the
circumstances that the Seventh Circuit, at least in the language of these cases, described as enough
to prompt a court to consider seriously a proposed amendment or alteration of a previously entered
judgment.
The fact that courts generally are loath to rely on such evidence to revisit a judgment is not
surprising, because courts long have seen proper reconsideration motions, and new “evidence” or
“facts” giving rise to them, as rare events. In a more classical interpretation of Rule 59 and its
grounds for relief, the late Judge Milton I. Shadur of this district credited the late U.S. District
Judge Dortch Warriner in describing the kinds of errors cognizable on reconsideration motions as
errors of “apprehension”:
“The motion to reconsider would be appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension. A further basis for a motion to reconsider would be a
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controlling or significant change in the law or facts since the submission of the issue
to the Court. Such problems rarely arise and the motion to reconsider should be
equally rare.”
LaBouve v. Boeing Co., 387 F. Supp. 2d 845, 855 (N.D. Ill. 2005), quoting Above the Belt, Inc. v.
Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
Judge Warriner’s interpretation leaves room as well for the idea that newly discovered
evidence could be a ground for altering or amending the judgment under Rule 59(e), but it comes
with Judge Warriner’s prescription that such occasions should be viewed as exceedingly rare. The
Motion in this case seeks relief from a judgment for an even rarer event: the emergence, after
judgment, of a condition or event that was not in existence at the time of the judgment. As
explained below, the Court looked specifically for support for such an extension of permissible
relief under Rule 59. We found none.
II.
The Seventh Circuit Has Not Recognized, as “Newly Discovered Evidence”
Justifying Relief Under Rule 59 or 60, Evidence Not in Existence at the Time of
Judgment.
The parties and the Court’s research did not identify any case, in any jurisdiction, in which
the death of a plaintiff in a tort case, after judgment, provided grounds for altering the judgment
as newly discovered evidence. The Seventh Circuit has held, in the context of Rule 60(b)(2) and
its allowance for relief from judgment on grounds including newly discovered evidence, that
evidence not in existence at the time of the trial does not qualify as “newly discovered evidence”
under Rule 60(b)(2). Peacock v. Board of Sch. Comm’rs of the City of Indianapolis, 721 F.2d 210,
213 (7th Cir. 1983). The same conclusion applies to Rule 59, which the Seventh Circuit has
described as sufficiently analogous so that “the same criteria apply in evaluating ‘new evidence’
offered under the two rules.” Id.
Peacock offers guidance in exercising the Court’s discretion to determine that Plaintiff’s
death three days after judgment does not call for an alteration or amendment of the judgment under
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Rule 59. The Seventh Circuit in Peacock observed preliminarily that newly discovered evidence
for purposes of these rules must first qualify as evidence “in some technical sense[,] rather than
just factual information of some variety.” Id. Defendant has offered no authority, in the Seventh
Circuit or elsewhere, to support its position that Plaintiff’s death is truly evidence in this
“technical” sense, and not simply factual information. The Court will assume nonetheless, for the
sake of argument, that Plaintiff’s death is or could be evidence “in the technical sense.” Peacock
still makes clear that this condition or event, as evidence, still needed to exist at the time of trial to
qualify as “newly discovered evidence” that would permit upending a judgment under Rule 59.
See id. at 214 (“[u]nder Rule 59, the evidence must have been in existence at the time of trial, and
by analogy, and as numerous courts and commentators have concluded, the requirement is the
same for Rule 60(b)(2)”), citing 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil
§ 2859 (1973); Corex Corp. v. United States, 638 F.2d 119, 121-22 (9th Cir. 1981) (holding that
district court’s reliance on an after-occurring event in granting relief under Rule 60(b)(2) was an
abuse of discretion and reversible error), overruled on other grounds, Falk v. Allen, 733 F.2d 461,
463 (9th Cir. 1984); Ryan v. U.S. Lines Co., 303 F.2d 430, 434 (2d Cir. 1962) (result of new
physical examination was not “newly discovered evidence” that would permit opening the
judgment); and Brown v. Pennsylvania R. Co., 282 F.2d 522, 526-27 (3d Cir. 1960) (holding that
disqualification for service of a railway employee one month after his FELA action was not “newly
discovered evidence” justifying Rule 60(b)(2) relief), cert. denied, 365 U.S. 818 (1961). This
Court’s similar conclusion as to Plaintiff’s death in this case is supported not just by the abovequoted language from Peacock, but by the holding of Peacock.
In Peacock, plaintiffs moved for reconsideration after their suit for injunction had been
dismissed on the ground that the relief they sought would have conflicted with an order in a
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separate desegregation case, in which the court said plaintiffs should have intervened. Id. at 212.
The Peacock plaintiffs’ intrepid solution was to move for intervention in that other case, and when
their intervention motion was denied, they relied upon the denial as “newly discovered evidence”
that warranted the setting aside of the court’s dismissal of their injunction case. Id. The inability
of the Peacock plaintiffs to intervene in the desegregation case did not exist at the time of the
judgment in Peacock, and the Seventh Circuit held that as such, the intervention denial failed to
qualify as a ground for relief under either Rule 59 or Rule 60. Id. at 214; see also LAJIM, LLC v.
General Elec. Co., 917 F.3d 933, 950 (7th Cir. 2019) (“Newly discovered evidence must have
been in existence at the time of the original judgment or pertain to facts in existence at the time of
the judgment.”); Censke v. United States, 314 F.R.D. 609, 611 (N.D. Ill. 2016) (finding, on Rule
60(b)(2) motion, that medical report created after judgment “does not constitute newly discovered
evidence, since it did not come into existence until almost two years after the trial”). Cf. United
States v. Bolden, 355 F.2d 453, 461 (7th Cir. 1965) (holding, on consideration of a motion for a
new trial in a criminal case based on witness’s subsequent criminal conviction, that the “conviction
was not evidence that was in existence at the time of the defendant’s trial and therefore did not
constitute evidence upon which a new trial could be based”), cert. denied, 384 U.S. 1012 (1966).
The Seventh Circuit in Peacock reasoned that “requirement” in Rule 59 that the “newly discovered
evidence” be in existence at the time of the trial is “subsumed” in the “due diligence” requirement
of the analogous Rule 60(b)(2)’s language concerning “newly discovered evidence.” 721 F.2d at
214. “[D]iligence is an issue only if there is evidence to be unearthed. Material not in existence
until after trial falls within Rule 60(b)(2) only if it pertains to facts in existence at the time of trial.”
Id., citing Nat’l Anti-Hunger Coal. v. Exec. Comm. of the President’s Private Sector Survey on
Cost Control, et al., 711 F.2d 1071, 1075 n.3 (D.C. Cir. 1983) (affirming summary judgment grant
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despite after-occurring task force reports that undermined district court’s conclusion, and stating,
“We recognize that the task force reports, whether characterized as ‘newly discovered evidence’
or ‘changed circumstances,’ [that] may bear heavily on the fundamental premise underlying the
District Court's decision, but we cannot conclude that they warrant reversing or vacating its
judgment.”); and United States v. Walus, 616 F.2d 283, 302-04 (7th Cir. 1980) (reversing the
district court’s denial of a Rule 60(b)(2) motion for relief from a civil judgment revoking accused
Nazi defendant’s citizenship, where the rule’s due diligence requirement for newly discovered
evidence should not have barred defendant’s offer, on reconsideration, of witness testimony and
documents concerning World War II-era facts indicating that defendant was a forced laborer in a
Nazi camp, and not a Gestapo member who committed war crimes). 1
The cited footnote from Nat’l Anti-Hunger Coal. suggests a tiny opening for Defendant’s argument that
Plaintiff’s post-judgment death allows the judgment here to be revisited. In that footnote, the D.C. Circuit
stated:
1
It has sometimes been suggested that, “[t]o be ‘newly discovered’ [within the meaning
of FED.R.CIV.P. 60(b)(2)], evidence must have been in existence at the time of the trial.”
We believe, however, that evidence falls within the rule as long as it “pertain[s] to facts in
existence at the time of the trial, and not to facts that have occurred subsequently.”
Although the task force reports did not come into existence until after the District Court's
decision, they pertain to facts in existence at the time of that decision since it seems highly
unlikely that the scope of the Survey's inquiry changed radically in the short time between
the release of the decision and the release of the first task force reports. If this speculation
proves incorrect, we believe that the resulting altered circumstances could support a motion
for relief from the judgment under FED.R.CIV.P. 60(b)(6).
711 F.2d at 1075 n.3 (internal citations omitted) (emphasis added). One might argue, from the D.C.
Circuit’s nuanced explanation of the efficacy of “newly discovered evidence” on reconsideration, that
Plaintiff’s life expectancy here was a “fact” in existence at the time of trial, and that his post-judgment
death “pertains” to that fact. This Court disagrees, in its exercise of discretion on Defendant’s Rule 59
motion. Plaintiff’s expected life span itself was not truly a “fact,” but rather was a mere expectation or
estimate. See Davis by Davis v. Jellico Community Hospital, Inc., 912 F.2d 129, 136 (6th Cir. 1990)
(“Davis”). The pertinence of Plaintiff’s post-judgment death to the parties’ pre-judgment agreed estimate
of his life span does not render his death “newly discovered evidence” justifying amendment of the
judgment under Rule 59, for the reasons explained further in the Court’s discussion below, in Part III, of
the Sixth Circuit’s decision in Davis.
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The same reasoning applies here. No more pre-judgment diligence by Defendant here
could have unearthed the fact of Plaintiff’s post-judgment death, as Plaintiff was alive during the
trial, and his death in October 2021 was an after-occurring event. As an after-occurring event,
Plaintiff’s death was not evidence in existence at the time of the trial or the judgment, and it is not
a basis for a new trial here or for an alteration of amendment of any kind to the judgment.
III.
Persuasive Authority from Outside the Seventh Circuit and Significant Judicial
Policy Concerns Weigh Against Considering Plaintiff’s Death as “Newly
Discovered Evidence” Supporting Alteration or Amendment of Judgment.
Finally, the weight of persuasive authority from other federal jurisdictions supports the
Court’s conclusion that Plaintiff’s death is not a basis for a new damages trial or an amendment to
the judgment.
The leading case by far is Davis. In Davis, the plaintiff in a medical malpractice negligence
case won a $2.5 million jury verdict but then died 33 days after the verdict was rendered and after
judgment was entered. 912 F.2d at 131. The Sixth Circuit analyzed Rules 59 and 60 in affirming
the district court’s denial of the defendant’s hybrid motion for a new trial, for judgment
notwithstanding the verdict, and for remittur. Id. at 131-37. The motion was rooted in defendant’s
claim that the plaintiff’s death rendered “false” the trial’s evidence of his life span. Id. at 134. The
Sixth Circuit was “unimpressed by this nearly frivolous argument.” Id. The Sixth Circuit
unequivocally concluded that a plaintiff’s death after judgment can never be grounds to disturb
that judgment, because to so hold would be “to invite a morass of appeals from defendants in cases
where the plaintiffs did not survive an ‘acceptable’ amount of time following the entry of final
judgment.” Id. at 135.
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This Court could not agree more, as the regime called for by Defendant adds significant
uncertainty and arbitrariness to the finality of damages awards. 2 Rules 59 and 60 should not be
construed to create a zone of uncertainty in which the prospect of Plaintiff’s possible death, either
three days or 364 days after judgment, renders his judgment non-final until the end of the
respective Rule 59 and Rule 60 filing periods. Brands of “newly discovered evidence” that existed
at the time of trial, and that did not occur after it, are cognizable under these rules within their
respective time frames. But adding the prospect of a plaintiff’s death to the circumstances that
could change the judgment takes the non-finality of that plaintiff’s judgment one step further, and
particularly in bench trials. The plaintiff who opts for a jury trial and obtains judgment on a jury
verdict will be free of Rule 59 after 28 days, but because of decisions such as Arpin, the plaintiff
who opts for a bench trial must wait for the required, adequate judicial explication before the 28day clock even starts. Every plaintiff ought to know of Arpin, but amid cases like Peacock and
Davis, plaintiffs are not likely to know, when they select a bench trial, that their untimely death
after judgment might cause their awards to wither. In addition, allowing judgments to be set aside
or changed, with damages awards substantially reduced, because a plaintiff did not cling to life
before the 28th day after judgment, or because the trial judge entered judgment a few days into the
28 days after plaintiff’s death and not before, strikes the Court as arbitrary and unfair. In the
2
The Sixth Circuit in Davis put the question this way:
Moreover, we wonder what standard the defendants would have us create. Is a year too
short or too long a time to require a plaintiff’s post-judgment survival? Six months? Three
months? Would verdicts in exposure cases be reopened because of newly developed cures
for asbestosis or DES-related maladies? Any judicial rule establishing contingencies on
the enjoyment of damages awards would necessarily be arbitrary.
Id. at 135.
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absence of any authority presented to us on this Motion to suggest that such a result is called for
by the rules or the law, the Court in its discretion under Rule 59 will not find that Plaintiff’s death
requires the judgment here to be revisited. Moreover, declining to amend the judgment on that
ground is not unfair to defendants, as the Sixth Circuit pointed out in Davis:
Rules 59 and 60(b)(2) are not designed to allow losing litigants to amend damages
awards based on a successful litigant’s death after a final judgment is entered in a
case. The defendants in this and every other tort case well know that a plaintiff
may not survive to fully enjoy an award of damages. It is the defendant’s
responsibility to make clear to the fact finder that the plaintiff could die as soon as
he or she leaves the courthouse. Here, the defendants failed to challenge testimony
regarding Davis’s expected life span …. The fact that a plaintiff dies even a second
after judgment is entered does not render evidence regarding an expected life span
“false” nor the judgment invalid. The testimony regards an expectancy, not a
certainty. Had Davis lived well beyond his expected life span, Rules
59 and 60 would not have allowed him to move for a supplemental award of
damages.
Davis, 912 F.2d at 136 (emphasis added). In the instant case, Defendant agreed, at the time of
judgment, that Plaintiff’s life span was 11 years. Davis could not be more on point, and its
reasoning applies to this case. See also Cates v. Creamer, No. 7:00-CV-0121-O, 2008 WL
2620097, at *3 (N.D Tex. June 27, 2008) (relying on Davis and finding that “[plaintiff] Bobby
Cates’ death [after judgment] is not newly discovered evidence” for purposes of defendant’s
motion to alter the judgment); Boyd v. Bulala, 672 F. Supp. 915, 922-23 (W.D. Va. 1987) (denying
motion where plaintiff died six weeks after the trial and noting that “[w]ere the rule otherwise,
litigation would never end”), aff’d in part, rev’d in part on unrelated grounds, certifying questions
to Supreme Court of Virginia, 877 F.2d 1191 (4th Cir. 1989).
Still other federal decisions also are in accord with the more general proposition that postjudgment factual developments are not evidence that existed at the time of trial and thus cannot be
considered “newly discovered evidence” in support of a post-trial motion to amend the judgment.
See Rivera v. M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988) (evidence of results of post-trial
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investigation was not newly discovered evidence because results did not exist at time of trial);
Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1358 (5th Cir. 1988) (evidence of involvement
in conspiracy to overthrow foreign government six months after trial not “newly discovered
evidence”); Washington v. United States, 214 F.2d 33, 46 (9th Cir. 1954) (limiting newly
discovered evidence in support of post-trial motion to “evidence in existence at the time of trial”);
Campbell v. Am. Foreign S.S. Corp., 116 F.2d 926, 928 (2d Cir. 1941) (rejecting argument that
post-trial, unexpected improvements in plaintiff’s condition were not newly discovered evidence
under Rule 59 because they did not exist at the time of trial); Multimatic, Inc. v. Faurecia Interior
Sys. USA, Inc., 2 F. Supp. 2d 677, 682-83 (E.D. Mich. 2008) (rejecting argument that revised
economic projects concerning lost profits constituted new evidence in support of Rule 60(b)(2)
motion), aff’d, 358 Fed. Appx. 643, 653 (6th Cir. 2009); Strobl v. New York Mercantile Exch., 590
F. Supp. 875, 878 (S.D.N.Y. 1984) (findings in related litigation made after final judgment not
“newly discovered evidence”), aff'd, 768 F.2d 22 (2d Cir. 1985), cert. denied sub nom., 474 U.S.
1006 (1985).
In the absence of any authority applying Rule 59(e) or Rule 60(b)(2) differently, in the
briefing and in the Court’s independent research, the Court adopts the sound reasoning of Davis
and the other authorities cited above, including the Seventh Circuit’s decision in Peacock. The
Court therefore finds in its discretion that Plaintiff’s death three days after judgment in this case
was not evidence in existence at the time of the trial or of the judgment, and that Plaintiff’s death
does not warrant a new trial or any amendment or alteration of the judgment in this case.
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CONCLUSION
For the foregoing reasons, Defendant’s Motion to Amend Judgment or for New Trial (D.E.
145) is denied. The judgment stands.
SO ORDERED.
ENTER:
________________________________
GABRIEL A. FUENTES
United States Magistrate Judge
DATED: January 5, 2022
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