Roberts, et al v. Johnson & Johnson, Inc. et al

Filing 22

ORDER AND REASONS: IT IS ORDERED that the Plaintiffs' 20 Motion is DENIED as set forth in document. Signed by Judge Ivan L.R. Lemelle on 6/22/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RANDY A. ROBERTS, SR., ET AL.

CIVIL ACTION

VERSUS

NO. 16-3991

JOHNSON & JOHNSON, INC., ET AL.

SECTION “B”(2)

ORDER AND REASONS

Before the court are “Plaintiffs’ Motion to Alter or Amend
the Judgment Pursuant to F.R.C.P. 59(e) or, Alternatively, Motion
for Relief from Judgment Pursuant to F.R.C.P. 60(B)(6)” (Rec. Doc.
20) and “Defendants’ Opposition to Plaintiffs’ Plaintiffs’ Motion
to Alter or Amend the Judgment Pursuant to F.R.C.P. 59(e) or,
Alternatively,

Motion

for

Relief

from

Judgment

Pursuant

to

F.R.C.P. 60(B)(6)” (Rec. Doc. 21). For the reasons set forth below,
IT IS ORDERED that the Plaintiffs’ Motion is DENIED.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Randy A. Roberts, Sr. alleges that he was injured
as a result of being implanted with the Defendants’, Johnson and
Johnson, Inc. and Ethicon, Inc., Prolene® Mesh System during a
surgery related to a hernia (Rec. Doc. 1). The Plaintiff claims
that after he underwent a surgical procedure on January 11, 2006,
involving

the

use

of

the

Prolene®

Mesh

System,

he

began

to

experience tissue infections and had to undergo multiple revision
surgeries, causing him permanent and irreparable harm (Rec. Doc.
1

1). The Plaintiff alleges that the Defendants’ device is defective
and brings product liability claims against them. This Court in
it’s March 22, 2017 Order and Reasons found in favor of the
Defendants’

Motion

for

Summary

Judgment

(Rec.

Doc.

18).

The

Plaintiffs have filed an instant motion to alter or amend the
previously issued judgment.
FACTUAL AND LEGAL FINDINGS
Fed. R. Civ. P. 59(e) provides: “A motion to alter or amend
a judgment must be filed no later than 28 days after the entry of
the judgment.” Such a motion “is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).

“When there

exists no independent reason for reconsideration other than mere
disagreement with a prior order, reconsideration is a waste of
judicial time and resources and should not be granted.” Ferraro v.
Libert Mut. Ins. Co., 2014 WL 5324987 at *1 (E.D. La. Oct. 17,
2014).
Reconsideration

of

a

judgment

after

its

entry

is

an

extraordinary remedy that should be used sparingly. Id. In order
for a party to prevail on a Rule 59(e) motion, it must satisfy one
of the following: “(1) the motion is necessary to correct a
manifest error of fact or law; (2) the movant presents newly
discovered or previously unavailable evidence; (3) the motion is
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necessary in order to prevent manifest injustice; or (4) the motion
is justified by an intervening change in the controlling law.”
Flynn v. Terrebonne Parish Sch. Bd., 348 F. Supp. 2d 769, 771 (E.D.
La. Oct. 17, 2014).
Plaintiffs argue that the Court committed a manifest error in
law or fact because it overlooked evidence regarding the Prolene®
Mesh

System

device.

Consequently,

the

Plaintiffs

submit

an

affidavit of the explanting surgeon, Dr. Todd Belott (Rec. Doc.
20-2). He explains that the Prolene® Mesh System device was the
one used in the Randy A. Robert’s surgery (Rec. Doc. 20-2).
However, this affidavit is merely the repackaging of Dr. Belott’s
operation notes that this Court already considered during its
adjudication of the Motion for Summary Judgment. (Rec. Doc. 122). The affidavit is not new evidence and the Court did not commit
an error by overlooking this physician’s testimony. This evidence
was already considered in the Court’s previous Order and Reasons
(Rec. Doc. 18).
“A motion to alter or amend the judgment under Rule 59(e)
‘must clearly establish either a manifest error of law or fact or
must present newly discovered evidence’ and ‘cannot be used to
raise arguments which could, and should, have been made before the
judgment issued.’” Schiller v. Physicians Res. Grp. Inc., 342 F.3d
563, 567-68 (5th Cir. 2003) (quoting Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863-64 (5th Cir. 2003)). Here, the Court has already
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ruled that this evidence is mere conjecture and does not constitute
definitive proof that the Prolene® Mesh System device was used in
the Plaintiff’s surgery (Rec. Doc. 18). Merely converting surgery
notes into an affidavit does not create new evidence. As previously
stated, Rule 59(e) does not exist to allow Plaintiffs to rehash
arguments that were made or could have been made prior to entry of
the Order.

The instant Rule 59(E) motion is without merit1.

CONCLUSION
For the reasons set forth above, IT IS ORDERED that the
Plaintiffs’ Motion is DENIED.

New Orleans, Louisiana, this 22nd day of June, 2017.

__________________________________
SENIOR UNITED STATES DISTRICT JUDGE

The Plaintiff’s motion is properly construed as a Rule 59 (e) motion given
that it was filed within 28 days of this Court’s order. Robinson v. Ashley,
Case No.: 10-695, 2011 U.S. Dist. LEXIS 99711, at*8 (E.D. La. Aug. 30, 2011).
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