Spinnenweber v. Laducer et al

Filing 121

OPINION AND ORDER denying 118 Motion to Reconsider Order Striking Plaintiff's Doctor. Signed by Magistrate Judge John E Martin on 11/27/2018. (smb) Modified on 11/28/2018 to show as opinion and order(mlc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RICHARD SPINNENWEBER,
Plaintiff,

)
)
)
v.
)
)
ROBERT LADUCER and
)
RED RIVER SUPPLY INCORPORATED, )
Defendants.
)

CAUSE NO.: 2:14-CV-101-JEM

OPINION AND ORDER
This matter is before the Court on a Motion to Reconsider Order Striking Plaintiff’s Doctor
[DE 118], filed by Plaintiff on November 14, 2018. Plaintiff requests that the Court reconsider the
portion of its Opinion and Order of November 13, 2018, ordering that Dr. Koberda cannot testify
as an expert as to causation or the necessity of Plaintiff’s medical treatment. Defendants filed a
response on November 19, 2018.
I.

Background
The Court held a final pretrial conference on October 18, 2018, in preparation for the trial

setting of December 3, 2018. Prior to the pretrial conference, Plaintiff filed a Motion to Strike
Questions and Answers in Defense Doctor’s Evidence Depositions and in Plaintiff’s Doctor’s
Evidence Deposition, and Defendant filed Defendant’s Motion to Exclude Expert Testimony. The
motions were discussed at the pretrial conference, and, after an opportunity for briefing, the Court
denied the Motion to Strike and granted the Motion to Exclude. Plaintiff now moves to reconsider
the Order excluding the expert testimony.
II.

Standard of Review
A motion for “[r]econsideration is not an appropriate forum for rehashing previously rejected

arguments or arguing matters that could have been heard during the pendency of the previous

motion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.1996).
Instead,
a motion to reconsider is only appropriate where a court has
misunderstood a party, where the court has made a decision outside
the adversarial issues presented to the court by the parties, where the
court has made an error of apprehension (not of reasoning), where a
significant change in the law has occurred, or where significant new
facts have been discovered.
Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. 2011) (overruled on other grounds by Hill v.
Tangherini, 724 F.3d 965, 967 n.1 (7th Cir.2013)) (citing Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990)). “Such problems [that are appropriate for
reconsideration] rarely arise and the motion to reconsider should be equally rare.” Bank of
Waunakee, 906 F.2d at 1191 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D.
99, 101 (E.D.Va.1983)).
III.

Analysis
Plaintiff argues that the Court misunderstood or was not sufficiently informed by him about

the basis for some of the putative expert’s opinions. Counsel for Plaintiff states that he “understood
from the pretrial conference the court would not consider the Motion to Strike Doctor, (104) because
defense filed the Motion to Strike instead of a response to the Motion to Strike Questions, the Court
providing both parties the opportunity to agree or file briefs related the motion to strike questions,”
(sic). He asserts that he would have included more citations to the deposition in his response brief,
and disagrees that Plaintiff suffered injuries in previous motor vehicle accidents.
At the pretrial conference, the Court addressed the pending Motions. At first, the Court
contemplated requiring Defendants to file additional briefing justifying their failure to comply with
the original deadline for filing motions challenging expert testimony or move for an extension.
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However, in the course of further discussion about the two motions, the parties asserted that both
motions were related to the same underlying dispute regarding the testimony given by the putative
expert witness at his deposition, a deposition that took place after the original trial setting was
vacated and Plaintiff’s initial attorney withdrew. Accordingly, with the agreement of the parties, the
Court ordered the parties to attempt to work out the dispute. It set a deadline for notification of any
agreement, and, if the parties were unable to resolve the dispute, ordered each party to file a single
brief responding to the other’s arguments by October 29, 2018.1 Even though Plaintiff
misunderstood the briefing deadline, the Court’s Opinion and Order was entered after the deadline
for response briefs set by the Local Rules. Furthermore, as the parties represented, the two motions
involved similar issues, and Dr. Koberda’s deposition was provided to the Court by Defendants, so
Plaintiff has not identified any facts of which the Court was unaware.
Plaintiff next argues that the Court erred in finding that Plaintiff suffered injuries in six
previous motor vehicle accidents and “is wrong in the lengths Dr. Koberda went to insure the injury
happens within four years of the test he gives, the QEEG.” The Court summarized a number of
arguments by Defendants about the basis for Dr. Koberda’s conclusions. The Order noted that Dr.
Koberda testified that he did not know about some of Plaintiff’s previous medical history, nor did
he know that Plaintiff had experienced other accidents, including a construction accident which
caused head injuries including a subdural hematoma. The Court did not find that Plaintiff’s prior
motor vehicle accidents caused injuries, nor did it draw any conclusions about the QEEG test in
particular. Instead, the Court emphasized that, as an expert witness on the issue of causation, “[f]or

1

The Court notes that the docket entries describing the briefing schedule only includes the docket entry number
of one of the pending evidentiary motions addressed, but the agreement of the parties and direction given by the Court
at the hearing addressed the interrelated evidentiary arguments from both motions.

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his conclusions regarding the cause(s) of Plaintiff’s symptoms to be reliable, [Dr. Koberda] must
have systematically considered and ruled out other potential causes of Plaintiff’s symptoms, which
he did not do.” The Court concluded that “Dr. Koberda could not have ruled out other potential
causes of Plaintiff’s symptoms because he was never made aware of many of the other potential
causes, so the Court cannot permit him to testify as an expert as to the causation of Plaintiff’s
tinnitus or headaches, nor as to the necessity of Plaintiff’s medical treatment.” Even if Plaintiff
might have cited to more or different portions of the deposition if he had included arguments more
explicitly about the Daubert motion in his briefing, he does not argue that the Court made an error
of apprehension about Dr. Koberda’s testimony regarding other possible causes of Plaintiff’s
symptoms. Plaintiff has failed to show that the Court misunderstood him, that new facts have been
discovered, or that there has been a significant change in relevant law. He has not given any reason
for the Court to reconsider its previous Opinion.
IV.

Conclusion
For the foregoing reasons, the Court hereby DENIES the Motion to Reconsider Order

Striking Plaintiff’s Doctor [DE 118].
SO ORDERED this 27th day of November, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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