Derrick et al v. Standard Nutrition Company et al

Filing 128

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack GRANTING AS UNOPPOSED 115 First MOTION in Limine , DENYING 119 First MOTION for Reconsideration re 113 Memorandum Opinion and Order and 104 Order on Motion for Sa nctions, GRANTING 120 MOTION for Supplement Exhibits to Document 119, Motion for Reconsideration, and DENYING AS MOOT 123 MOTION to Strike 119 First MOTION for Reconsideration re 113 Memorandum Opinion and Order, 104 Order on Motion for Sanctions It is Further Ordered that the Final Pretrial Conference is currently Vacated and Rescheduled for Thursday, July 11, 2019 at 8:45 a.m. (jjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONNY DERRICK and ANGIE
DERRICK, a married couple,
Plaintiffs,
v.

No. CIV 17-1245 RB/SMV

STANDARD NUTRITION COMPANY, a
Nebraska Corporation, dba A-C Nutrition, LP,
a Texas limited partnership; JOHN DOES 1–5;
and XYZ Corporate or Business Entities 1–5,
Defendants.
MEMORANDUM OPINION AND ORDER
Ronny and Angie Derrick (Plaintiffs), owners of a horse breeding program, have brought
suit against Standard Nutrition Company (Defendant), a manufacturer of animal feed. Plaintiffs
contend that Defendant manufactured and sold them feed contaminated with a substance
(monensin) that caused injury and death to many of their horses. On May 8, 2019, the Court granted
in part Defendant’s motion for summary judgment and dismissed several of Plaintiffs’ claims due
to their failure to secure a causation expert to support their theory that their horses were injured or
died due to the alleged monensin poisoning. (See Doc. 113.) Plaintiffs have moved the Court to
reconsider its May 8, 2019 Memorandum Opinion and Order. (See Docs. 119 at 1–19; 120.)
Plaintiffs also ask the Court to reconsider United States Magistrate Judge Stephan M.
Vidmar’s decision in an April 12, 2019 Memorandum Opinion and Order (Doc. 104), which denied
Plaintiffs’ motion for sanctions based on spoliation of evidence. (See Docs. 119 at 19–24; 68.)
Defendant asks the Court to strike Plaintiffs’ motions because they are untimely and do not
comply with local rules, they are based on unauthenticated and inadmissible hearsay evidence, and
they are based on evidence and arguments that have been presented to the Court previously. (See
1

Doc. 123.) Defendant has also filed a motion in limine seeking “an evidentiary ruling that bars any
evidence, argument, or reference to horse deaths, horse injuries, emotional distress, or monetary
damage at trial.” (See Doc. 115 at 2.) Plaintiffs have failed to file a response to this motion.
For the reasons explained below, the Court will grant Plaintiffs’ motion to supplement
(Doc. 120) and will consider the attached exhibits, deny Plaintiffs’ motion to reconsider (Doc.
119), deny Defendant’s motion to strike as moot (Doc. 123), and grant Defendant’s motion in
limine as unopposed (Doc. 115).
I.

Legal Standard
Plaintiffs ask the Court to reconsider its rulings pursuant to Federal Rules of Civil

Procedure 59 and 60. (Doc. 119 at 2.) These two rules, however, apply to motions filed after
judgment has been entered and do not provide a basis for the relief Plaintiffs seek. See Anderson
Living Tr. v. WPX Energy Prod., LLC, 312 F.R.D. 620, 642 (D.N.M. 2015) (discussing three
categories of motions to reconsider); accord Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir.
2005). Because the “Court’s partial summary judgment ruling was not a final judgment[,]”
Plaintiffs’ motion to reconsider “is considered ‘an interlocutory motion invoking the [Court’s]
general discretionary authority to review and revise interlocutory rulings prior to entry of final
judgment.’” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008) (quoting
Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)). Such authority stems from
Federal Rule of Civil Procedure 54(b). See Price, 420 F.3d at 1167 n.9.
“Rule 54(b) provides that a district court can freely reconsider its prior rulings.” Med Flight
Air Ambulance, Inc. v. MGM Resorts Int’l, No. 17-CV-0246 WJ/KRS, 2018 WL 1997292, at *5
(D.N.M. Apr. 27, 2018) (citing Lujan v. City of Santa Fe, 122 F. Supp. 3d 1215, 1238 (D.N.M.
2015)). “In addition, the rule ‘puts no limit or governing standard [on] the district court’s ability

2

to do so, other than that it must do so before the entry of judgment.’” Id. (quoting Lujan, 122 F.
Supp. at 1238 (internal quotation marks omitted)). The Tenth Circuit has stated that a district court
“may look to the standard used to review a motion made pursuant to . . . Rule 59(e)[,]” Ankeney v.
Zavaras, 524 F. App’x 454, 458 (10th Cir. 2013) (emphasis added), but it “has not cabined district
courts’ discretion beyond what [R]ule 54(b) provides[,]” Lujan, 122 F. Supp. at 1238 (citing Been
v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007)). Thus, in revisiting a previous order in
Med Flight Air Ambulance, United States Chief District Judge William P. Johnson was “guided
by concerns of judicial economy, avoiding piecemeal litigation, and the posture of all the parties
involved.” See 2018 WL 1997292, at *6. And in Lujan, United States District Court Judge James
O. Browning considered (1) “how thoroughly the earlier ruling addressed the specific findings or
conclusions that the motion to reconsider challenge[d]”; (2) “the case’s overall progress and
posture, the motion for reconsideration’s timeliness relative to the ruling it challenges, and any
direct evidence the parties . . . produce[d]”; and (3) the grounds courts use to consider a motion to
reconsider brought under Rule 59(e). 122 F. Supp. 3d at 1238–39; see also Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The Court finds that, regardless of the standard it
uses, Plaintiffs’ motion to reconsider should be denied.
II.

Plaintiffs have identified no reason sufficient for the Court to reconsider its decision
on the parties’ motions for summary judgment.
Plaintiffs assert that the Court should reconsider its rulings on summary judgment because:

(1) they have introduced “new and previously unavailable scientific evidence that irrefutably
establishes causation”; (2) they submitted evidence that was previously available, inadvertently
omitted, and creates a dispute of fact; (3) the Court erred in restricting Dr. Box’s testimony. (See
Doc. 119.) Plaintiffs have failed to persuade the Court that it should amend its rulings.

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A.

The Court will deny Plaintiffs’ motion to reconsider pursuant to the Rule 59(e)
standard of review.

“Grounds for granting a motion to reconsider pursuant to Rule 59(e) include: ‘(1) an
intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest injustice.’” Ankeney, 524 F. App’x at 458 (quoting
Servants of the Paraclete, 204 F.3d at 1012). As Plaintiffs have not cited an intervening change in
the controlling law, the Court will analyze their motion only under the second and third grounds.
1.

Plaintiffs fail to establish that any “new” evidence was previously
unavailable.

Plaintiffs contend that the lab reports submitted to the Court on June 6, 2019, constitute
“new” evidence previously unavailable and provide sufficient grounds for reconsideration of the
Court’s ruling on summary judgment. (See Doc. 119 at 1, 3, 19.) A look at the factual and
procedural history of this litigation precludes such a finding. Plaintiffs discovered the first two
deceased horses in December 2016, and the second two deceased horses five and seven days later,
also in December 2016. (See Doc. 58-D at 153:15–19, 162:23–163:8, 179:2–5, 180:10–15.) Dr.
Box took tissue samples from the first two horses, but the samples had broken down too much to
yield conclusive results regarding their cause of death. (Docs. 58-F at 3, 6; 73-5 at 2.) Dr. Box
informed Plaintiffs that there would “have [to] be fresh deaths in order to learn any more’” about
what had harmed the horses. (Doc. 100 at 6.) Despite the fact that Plaintiffs filed this lawsuit in
November 2017, Plaintiffs disregarded Dr. Box’s instructions and failed to perform any testing on
the next two horses that died in December 2017. (See Docs. 58-D at 153:14–21, 180:4–18; 100 at
3 (admitting Defendant’s Material Fact No. 14 that Plaintiffs did not have the horses that died in
December 2017 evaluated, necropsied, or sampled).)

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Judge Vidmar entered the Scheduling Order in May 2018 and set October 29, 2018, as the
termination date for discovery. (See Doc. 25 at 2.) On October 22, 2018, Plaintiffs filed an untimely
motion to amend the scheduling order to extend the expert report deadline and argued that the
“Scheduling Order should be amended to allow for completion of fact discovery and expert
analysis.” (See Doc. 65 at 7; see also Doc. 66 (Mem. Op. & Order denying Mot. to Am.).) Plaintiffs
mentioned a need to complete the depositions of certain witnesses, but they did not note any plans
to euthanize horses to obtain lab results. (See id. at 6–7.)
On November 16, 2018, in response to Defendant’s motion for summary judgment,
Plaintiffs’ counsel, Mr. Laurence Berlin, filed a Rule 56(d) declaration and asked the Court to
“defer considering the motion” until the parties had completed three depositions and Defendant
had disclosed certain documents. (See Doc. 67 at 1 n.1.) Again, Plaintiffs did not mention any
plans to euthanize horses. (See id.) Plaintiffs never sought leave to file a late substantive response
to the motion for summary judgment. Rather than granting the motion for summary judgment as
unopposed pursuant to Local Rule 7.1(b), see D.N.M. LR-Civ. 7.1(b), the Court on March 20,
2019, ordered Plaintiffs to respond. (Doc. 96.) After requesting an extension (see Doc. 98),
Plaintiffs responded on April 1, 2019. (Doc. 100.) It is in this brief that Plaintiffs first mentioned
they had euthanized two horses on March 29, 2019, and expected results from tissue samples
“shortly.” (Id. at 5.) Defendant filed a reply to its motion for summary judgment on April 8, 2019.
(Doc. 102.)
Also on April 8, 2019, the Texas A&M Veterinary Medical Diagnostic Laboratory
(TVMDL) released its report on the analysis of one of Plaintiffs’ euthanized horses. (See Doc.
120-1 at 2.) Plaintiffs did not file a motion seeking leave of the Court to file a supplemental brief
to introduce this new evidence.

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Defendant filed a motion to exclude Plaintiffs’ proposed expert, Dr. Box, on April 22,
2019. (Doc. 106.) Plaintiffs filed two responses to this motion. (Docs. 107; 110.) In each response,
Plaintiffs alluded to the TVMDL lab report, but they failed to attach the report to their responses. 1
(See Docs. 107 at 3; 110 at 4.) Accordingly, the Court did not consider the lab report in its ruling
on the parties’ motions for summary judgment. (See Doc. 113 at 3 n.2.)
In their motion to reconsider, Plaintiffs assert that they gave Defendant notice that one or
more of the horses would need to be euthanized “months” before they actually euthanized the
horses. (Doc. 119 at 4.) Mr. Berlin stated to the Court that he “informed opposing counsel of the
impending need to euthanize horses” in late January 2019. (See Doc. 107 at 3 n.2.) Thus Plaintiffs
knew as early as January 2019 that they would euthanize a horse and would potentially have
relevant evidence to introduce regarding causation, but they did not alert the undersigned.
In short, Plaintiffs declined to evaluate tissue samples from at least one horse that died
naturally in 2017. Lacking conclusive evidence of the damage done by the alleged monensin
exposure, they delayed making the admittedly hard decision to euthanize one of their remaining
affected horses until after discovery had closed and the dispositive motions deadline had passed.
Yet, even after they made that decision in January 2019, they waited approximately two months
to euthanize the horse. And even more damning to their cause now, after they received the evidence
that they argue “irrefutably establishes causation” 2 (Doc. 119 at 1), they waited another two

1

Mr. Berlin asserts that he was “able to attach the Pathology Report toward the end of the briefings, [but]
neither Defendant[] nor the Court addressed it . . . .” (Doc. 126 at 7 (citing Doc. 107); see also Doc. 127 at
1–2.) Mr. Berlin did not attach the lab report to either of his responses to Defendant’s motion to exclude
Dr. Box. (See Docs. 107; 110.) To the extent Mr. Berlin references a block quote on page 3 of his response
that he attributed to the lab report, a block quote from an undisclosed exhibit is not an exhibit. (See Doc.
107 at 3.)

2

Defendant disagrees that the evidence “irrefutably establishes causation,” as it is a report on only “one of
the 20 horses at issue in this case” and “merely states that one of the lesions found . . . ‘has been associated
with’ exposure to monensin.” (Doc. 125 at 3 (citing Docs. 119 at 1–2; 1 at 5; 120-1 at 3).) “It does not say

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months before submitting that evidence to the Court. They had an opportunity to supplement the
evidence to support their motion for summary judgment. They had another opportunity to
supplement the record in response to Defendant’s motion to exclude Dr. Box. But Plaintiffs chose
to wait until after the Court had ruled on their dispositive motions. Their late revelation of the
evidence does not mean that it was “previously unavailable,” it was simply tardy.
2.

Plaintiffs fail to demonstrate clear error or manifest injustice.

“The Tenth Circuit has defined ‘clear error’ as ‘an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.’” Thymes v. Verizon Wireless, Inc., No. CV 16-66 KG/WPL,
2016 WL 9777487, at *2 (D.N.M. Sept. 28, 2016) (quoting Wright ex rel. Tr. Co. of Kan. v. Abbott
Labs., Inc., 259 F.3d 1226, 1236 (10th Cir. 2001)). “Although the Tenth Circuit has not specifically
defined ‘manifest injustice’ in the Rule 59(e) context, other courts have defined manifest injustice
as ‘more than just a clear and certain prejudice to the moving party, but also a result that is
fundamentally unfair in light of governing law.’” Id. (quoting Smith v. Lynch, 115 F. Supp. 3d 5,
12 (D.D.C. 2015); citing In re Green Goblin, Inc., Bankr. No. 09-11239 ELF, 2012 WL 1971143,
at *1 (Bankr. E.D. Pa. May 31, 2012) (“In order for a court to reconsider a decision due to ‘manifest
injustice,’ the record presented must be so patently unfair and tainted that the error is manifestly
clear to all who view it.”)). Plaintiffs do not explicitly argue that the Court’s decision was arbitrary,
capricious, or fundamentally unfair. (See Doc. 119.) Instead, they assert: (1) reconsideration is
appropriate in light of their late introduction of certain pages of an exhibit that they inadvertently
omitted from their response to Defendant’s motion for summary judgment (id. at 10–11); and
(2) the Court erred in limiting Dr. Box’s testimony and in not admitting the new evidence (id. at
16–18). The Court will take up the matter of Dr. Box’s testimony and the new evidence first.

definitely that the lesion is associated with a prior monensin exposure, let alone the alleged monensin
exposure at issue back in December of 2016.” (Id. (citing Doc. 120-1 at 3).)

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With respect to this issue, Plaintiffs first contend that the Court should admit the new
evidence and Dr. Box’s expert testimony pursuant to Woodworker’s Supply, Inc. v. Principal
Mutual Life Insurance Co., 170 F.3d 985 (10th Cir. 1999). (Id. at 15.) Second, they argue that
regardless of whether Dr. Box testifies as an expert or as a treating veterinarian, he should be
allowed to opine about causation and diagnosis. (Id. at 16–19.)
Consideration of the Woodworker’s factors supports exclusion of Dr. Box as an expert
and of the new evidence.
Plaintiffs acknowledge that they failed to disclose Dr. Box as an expert witness in violation
of Federal Rule of Civil Procedure 26(a)(2). (See, e.g., id. at 15.) They urge the Court to allow Dr.
Box to testify as an expert and to admit the late evidence, however, because the violations were
harmless. (See id.; see also Doc. 107 at 7–8.) “District courts have broad discretion to exclude
untimely disclosed expert-witness testimony.” Leon v. FedEx Ground Package Sys., Inc., No. CIV
13-1005 JB/SCY, 2016 WL 1158079, at *7 (D.N.M. Mar. 1, 2016) (citations omitted). “On the
other hand, a district court may ‘refuse to strike expert reports and allow expert testimony even
when the expert report violates Rule 26(a) if the violation is justified or harmless.’” Id. (quoting
Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002)); see also Fed. R. Civ. P. 37(c).
[T]he Tenth Circuit has identified four factors that a district court should consider
when deciding whether to exclude expert evidence: “[i] the prejudice or surprise to
the party against whom the testimony is offered; [ii] the ability of the party to cure
the prejudice; [iii] the extent to which introducing such testimony would disrupt the
trial; and [iv] the moving party’s bad faith or willfulness.
Leon, 2016 WL 1158079, at *7 (quoting Ellsworth v. Tuttle, 148 F. App’x. 653, 665 (10th Cir.
2005) (quoting Woodworker’s Supply, Inc., 170 F.3d at 993)). The Tenth Circuit has applied these
same factors where a party failed to timely disclose evidence regarding damages. See HCG
Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1196–97 (10th Cir. 2017).

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Plaintiffs contend that there is no prejudice or surprise to Defendant, as they have already
taken Dr. Box’s deposition. (See Doc. 110 at 12.) As Defendant points out, however, the parties
took Dr. Box’s deposition on January 10, 2019, “over four months past [the August 29, 2018]
expert disclosure deadline[,] . . . over several objections by Defense Counsel[,]” and more than
two months after Judge Vidmar denied Plaintiffs’ motion to amend the scheduling order. (Doc.
Doc. 106 at 4.)
Defendant further asserts that Plaintiffs “improperly solicited numerous additional
undisclosed expert opinions from Dr. Box at his . . . deposition” that were not noticed via the onepage letter Plaintiffs try to spin as an expert report. (Id.; see also Doc. 101-2. 3) The Court has
compared the one-page letter with Dr. Box’s deposition testimony and agrees that Plaintiffs far
exceeded the scope of the letter. In his letter, Dr. Box stated that “on autopsy all I can truthfully
say is there was no colic. The 2 horses were found near each other and did not appear to struggle.
They were undergoing severe autolysis.” (See Doc. 101-2.) He stated that he sent heart and liver
samples to the lab, but because of the severe autolysis, he “cannot prove . . . that these horses died
of monensin.” (Id.) He also sent stomach content samples that were negative for monensin, but the
lab told him that the drug might have “already cleared the stomach.” (Id.) He stated that he caught
feed from the overhead bulk tank and sent it in for testing and that “it was positive for monensin
at 1.2 ppm.” (Id.) He opined that “even though it is at a very low level” and he “cannot testify [to]
the concentration of the monensin [in] the feed that the horses ate[,]” it is his “professional opinion
[that] the horses died of monensin toxicity.” (Id.)
At his deposition, over objections from Defendant, Mr. Berlin elicited testimony from Dr.
Box about (1) whether a pattern of horse deaths might be consistent with a history of monensin

3

The Court has already ruled that Dr. Box’s letter (Doc. 101-2) does not qualify as an expert report under
Rule 26(a)(2)(B). (See Doc. 113 at 2 n.1.)

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toxicity; (2) “lethal” and “sub-lethal” doses of monensin; (3) whether monensin can filter and
concentrate in certain areas of feed; (4) what should be done to clean trucks between delivery of
different types of feed; (5) his opinions of how the living horses on the ranch looked when he went
to examine the deceased horses; (6) how the appearance of the living horses might be consistent
with monensin poisoning; (7) whether exposure to monensin could affect the value of horses; and
(8) whether from what he knows about monensin and his past experiences as a veterinarian, the
circumstances in this case lead him to believe that the horses died of monensin toxicity. (See Doc.
106-A.) These areas of testimony were not disclosed in the one-page letter, and Defendant did not
have an opportunity to prepare for these questions in time for the January 2019 deposition.
Even more prejudicial to Defendant, Plaintiffs seek to have Dr. Box testify about lab
reports obtained three months after his January 2019 deposition, almost six months after discovery
ended, four months after the dispositive motions deadline passed, and not disclosed to the Court
until less than two months before trial was scheduled. 4 There is no evidence that Plaintiffs have
ever supplemented their “expert report” or discussed the possibility of a follow-up deposition with
Dr. Box to cure this prejudice. “The purpose of Rule 26(a)(2)’s expert disclosure requirements is
to eliminate surprise and provide the opposing party with enough information regarding the
expert’s opinions and methodology to prepare efficiently for deposition, any pretrial motions and
4

Plaintiffs urge the Court to apply “the same ruling to the recent [TVMDL] lab report” that it applied to
the original lab report. (Doc. 119 at 14.) The Court previously held that, “[i]f he testifies at trial, Dr. Box
may, without objection, read the results of the lab reports Plaintiffs received as a result of the samples he
took in December 2016.” (Doc. 113 at 4 (emphasis added).) The ruling is subject to a qualification—
Defendant is free to object to a reading of the original lab report, and the Court will rule on any objection
as needed. Defendant’s Motion in Limine, to which Plaintiffs have failed to file a response, implicitly
objects to Dr. Box’s reading of the 2016 report. (See Doc. 115 at 2; see also infra at Section IV.)
Assuming the Court were to apply the same ruling to the new lab report—that Dr. Box may, without
objection, read the 2019 lab report results, Defendant has already filed its objection. Defendant moved to
strike the 2019 lab report on the basis that it “constitutes hearsay and . . . is not authenticated by any affidavit
or other evidence that would support its admission.” (Doc. 123 at 3 (citing Fed. R. Evid. 801(c), 901(a)).)
Plaintiffs have failed to substantively address this objection with reference to any controlling authority in
their response. (See Doc. 126 at 6–7 n.5.)

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trial.” Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1122 (D. Colo. 2006) (citing SyllaSawdon v. Uniroyal Goodrich Tire. Co., 47 F.3d 277, 284 (8th Cir. 1995); Nguyen v. IBP, Inc.,
162 F.R.D. 675, 682 (D. Kan. 1995)). Defendant was prejudiced in each of these areas. The first
Woodworker’s factor heavily leans in favor of excluding both Dr. Box’s expert testimony and the
new evidence.
Regarding the second Woodworker’s factor, there is now little time to cure the prejudice to
Defendant, as trial is set for next month. “Prejudice results because the expert reports did not reveal
what the experts will testify to at trial.” Jacobsen, 287 F.3d at 954. The circumstances here are
distinguishable from those where the Tenth Circuit has “determined that a party’s failure to
produce a written expert report in compliance with rule 26(a)(2)(B) did not warrant the extreme
sanction of excluding the expert’s testimony.” Leon, 2016 WL 1158079, at *8 (discussing Gillum
v. United States, 309 F. App’x 267 (10th Cir. 2009)). In Gillum, the district court excluded an
expert report on the grounds that the opposing party (the United States) was prejudiced and “the
prejudice could not be cured on the premise that the United States had ‘only . . . one chance to
confront that expert’” at deposition, and “that opportunity is now gone permanently in this case.”
Id. (quoting Gillum, 309 F. App’x at 269–70). The Tenth Circuit reversed because the district
court’s hearing on the issue of the expert report was held before discovery ended—thus, there was
time for the United States to undertake a second deposition with a supplemented expert report. See
Gillum, 309 F. App’x at 270. Here, the parties deposed Dr. Box after discovery ended, and
Plaintiffs continued to search for evidence and elicit more expert opinions from Dr. Box both after
discovery had ended and after the parties had briefed dispositive motions. Plaintiffs had multiple
opportunities to cure the prejudice before now. They could have euthanized the horses prior to the
discovery or dispositive motion deadline. They could have moved the Court to extend the

11

discovery or dispositive motion deadline. They could have appealed, pursuant to Federal Rule of
Civil Procedure 72(a), Judge Vidmar’s denial of the motion to amend the scheduling order. See
United States v. Copar Pumic Co., Inc., Civ. No. 09-1201 JAP/KBM, 2012 WL 12910521, at *4
(D.N.M. June 18, 2012) (noting that Rule “72(a) allows a district judge to consider timely
objections and modify or set aside any part of a magistrate judge’s decision on a non-dispositive
issue that is clearly erroneous or is contrary to law”) (citations omitted)). They could have filed a
supplement to the “expert report” and offered to depose Dr. Box again after they euthanized the
horses. Ultimately, Plaintiffs offer no evidence to show that they took steps to cure the prejudice
to Defendant, and this factor weighs heavily in favor of exclusion of Dr. Box’s expert testimony
and of the new evidence.
Trial is set for July 29, 2019, one month from now. The Court finds that admitting the
untimely evidence or allowing Dr. Box to testify as an expert to the extent Plaintiffs request would
significantly disrupt the trial and prejudice Defendant. In Quapaw Tribe of Oklahoma v. Blue Tee
Corp., No. 03-cv-0846-CVE-PJC, 2010 WL 3909204, at *5 (N.D. Okla. Sept. 29, 2010), the court
found that where trial was two months away, the third Woodworker’s factor favored exclusion of
untimely supplemental expert reports, because admission of the untimely reports would require
the defendants to re-depose their own expert “and obtain their own updated expert reports . . . .”
The same is true here. (See Doc. 125 at 5–6.) Instead, the Court ruled that it would allow Dr. Box
to testify as a treating veterinarian and would limit his testimony to his initial visit to Plaintiffs’
ranch. The third factor also weighs in favor of excluding Dr. Box’s expert testimony and of the
new evidence.
Regarding the fourth factor, the Court hesitates to find that Plaintiffs acted in bad faith.
However, the Court cannot find that Plaintiffs acted in good faith given their decisions to wait until

12

months after the discovery deadline to obtain evidence that “irrefutably establishes causation”
(Doc. 119 at 1), to fail to submit the new evidence to the Court for approximately two months after
obtaining it and only after the Court ruled on dispositive motions, and to continuously disregard
deadlines, the scheduling order, and the Local Rules of this Court. See Jacobsen, 287 F.3d at 954
(finding that a party’s “good faith alone would not be enough to overcome the other factors”). (See
also infra at Sec. III(B).) Moreover, the Court finds that Plaintiffs’ conduct demonstrates
willfulness when Judge Vidmar has twice warned them in the past about the need to timely secure
evidence. (See Docs. 41 at 3 (Judge Vidmar reminding Plaintiffs that they “may not wait until the
eve of trial to disclose new evidence they intend to rely on at trial”); 66 at 7 (Judge Vidmar
admonishing plaintiffs for waiting until close to the termination date for discovery to obtain certain
testing of their living horses; “[i]f testing was necessary, that should have been done at the
beginning of the case, not the month before the expert disclosure deadline”).)
Plaintiffs urge the Court to consider lesser sanctions, as the exclusion of Dr. Box as an
expert and the new evidence will “effectively kill the case . . . .” (See Doc. 127 at 9 (discussing
HCG Platinum, LLC, 873 F.3d at 1203).) Essentially, Plaintiffs want the Court to save their case
after they have failed, time and again, to adhere to the Court’s deadlines and scheduling orders and
to make more prudent litigation choices. But because Plaintiffs’ pattern of conduct in this lawsuit
is indicative of willfulness, the Court finds that lesser sanctions would not be proper. See Sender
v. Mann, 225 F.R.D. 645, 657 (D. Colo. 2004) (Plaintiffs “should not be permitted to ignore [their]
disclosure obligations throughout the discovery period and then avoid sanctions simply by
claiming [their] deficiencies were not willful.”). The four Woodworker’s factors only serve to
support the Court’s earlier findings. The Court finds that Plaintiffs’ failures to timely obtain and
disclose evidence and to disclose Dr. Box as an expert pursuant to Rule 26(a)(2) were not justified

13

or harmless, and both Dr. Box’s expert testimony and the new evidence should be excluded under
Rule 37(c).
Plaintiffs have failed to demonstrate that Dr. Box should be allowed to testify to
causation as a treating veterinarian.
Plaintiffs argue that even if Dr. Box is not allowed to testify as an expert, he should still be
able to testify to his diagnosis or causation as a treating veterinarian. (See Doc. 119 at 16–19.)
Plaintiffs contend that the Court relied on medical malpractice cases in limiting Dr. Box’s
testimony to his involvement on the day he examined Plaintiffs’ horses, when it should instead
have examined products liability cases. (See id.) The Court declines to reconsider its opinion on
this ground for two reasons.
First, the Court notes that “it is not appropriate to . . . advance arguments that could have
been raised in prior briefing.” Servants of Paraclete, 204 F.3d at 1012 (citing Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991)). Plaintiffs never briefed an alleged “distinction
between application of Rules of Evidence 701 and 702 to medical malpractice cases and . . .
products liability case[s].” (Doc. 119 at 16; see also Docs. 106; 110.) In fact, the Court cited several
cases that Plaintiffs relied on in their own briefs on this issue. (Compare Doc. 113 at 2–5
(discussing Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT, 2013 WL 6503629 (D.N.M. Dec. 7,
2013)), 4 (citing Davoll v. Webb, 194 F.3d 1116, 1138–39 (10th Cir. 1999)), 5 (quoting James
River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1215 (10th Cir. 2011)), 14 (citing United
States v. Henderson, 409 F.3d 1293, 1296, 1299–1300 (11th Cir. 2005)); with Doc. 110 at 7–9
(discussing Peshlakai), 9 (discussing Davoll), 11 (discussing James River and Henderson).)
Plaintiffs now cite to two cases that they did not mention in their first two briefs. (See Doc. 119 at
16 (citing Guerrero v. Meadows, 646 F. App’x 597 (10th Cir. 2016)), 18 (citing Williams v. Mast,
644 F.3d 1312 (11th Cir. 2011)).) Plaintiffs had the opportunity to bring these cases to the Court’s
14

attention previously and did not. “A motion to reconsider is not a second chance for the losing
party to make its strongest case or to dress up arguments that previously failed.” United States v.
Loera, 182 F. Supp. 3d 1173, 1209 (D.N.M. 2016), aff’d, 923 F.3d 907 (10th Cir. 2019) (quoting
Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994)).
Even if the Court had considered Plaintiffs’ argument originally, it would have made the
same decision. Plaintiffs essentially argue that courts allow treating physicians to testify about
causation and diagnosis where they rely only on their own treatment, and not on the records of
other physicians. (Doc. 119 at 16–17 (discussing Guerrero, 646 F. App’x at 602 (finding that
district court properly excluded treating physician’s testimony about causation because he only
treated the plaintiff’s complaints of headaches, and another physician diagnosed the neurological
conditions that caused the headaches).) If this were true, Dr. Box would still be precluded from
testifying about causation, because his opinion relies in part on the lab reports that established
there was monensin in the feed. (See Doc. 101-2.)
Regardless, Plaintiffs misunderstand the state of the law. Judge Browning, in Walker v.
Spina, No. CIV 17-0991 JB/SCY, 2019 WL 145626, at *17–22 (D.N.M. Jan. 9, 2019), thoroughly
summarized the history and current impact of Rules 701 and 702 as they apply to treating
physicians. In particular, Judge Browning examined the 2000 amendments to Rule 701, which
“changed the requirements for lay testimony.” Walker, 2019 WL 145626, at *18 (citing Jack
Weinstein & Margaret Berger, Weinstein’s Federal Evidence § 701.03[4][b], at 701–31 (J.
McLaughlin ed., 2d ed. 2012)); accord Montoya v. Sheldon, 286 F.R.D. 602, 612–13 (D.N.M.
2012). Before the 2000 amendments, “lay witness testimony was subject to only two restrictions;
lay testimony ‘is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the

15

determination of a fact in issue.’” Walker, 2019 WL 145626, at *18 (quoting Fed. R. Evid. 701
(1997)). “In 2000, the language restricting lay witnesses’ opinions to only opinions ‘not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702,’” was added so
that “‘a party will not evade the expert witness disclosure requirements set forth in [Rule] 26 . . .
by simply calling an expert witness in the guise of a lay person.’” Id. (quoting Fed. R. Evid. 701
advisory committee’s notes; citing Weinstein & Berger, supra § 701.03[4][b], at 701–31 (“noting
that the 2000 amendment to rule 701 . . . ‘provides assurance that parties will not use Rule 701 to
evade the expert witness pretrial requirements of [Rule] 26’”)). Thus, Rule 701 now provides that:
[a] witness not properly identified as an expert pursuant to rule 26 may . . . testify
as a lay witness to opinions which are “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
Id. (quoting Fed. R. Evid. 701). “The amendment makes clear that any part of a witness’[s]
testimony that is based upon scientific, technical, or other specialized knowledge within the scope
of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure
requirements of the Civil and Criminal Rules.” Id. (quoting Fed. R. Evid. 701 advisory
committee’s notes).
“Before the 2000 amendments, courts concluded that a treating physician testified as a lay
witness when he or she testified based on his or her personal experience treating a patient.” Id.
(citing Davoll, 194 F.3d at 1138–39; Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996); Piper
v. Harnischfeger Corp., 170 F.R.D. 173, 175 (D. Nev. 1997) (“It is common place for a treating
physician during, and as part of, the course of treatment of a patient to consider things such as the
cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by
the condition, if any.”)). Courts reasoned that because “[t]reating physicians are not retained for

16

purposes of trial[,]” 5 their opinions regarding diagnosis and causation were “a necessary part of
the treatment of the patient” and “do not make the treating physicians experts as defined by Rule
26(b)(4)(C).” Id. (quoting Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D. Colo. 1995)).
After the 2000 amendments, however, “a treating physician who has not been identified as
an expert witness pursuant to Rule 26(a)(2) may not provide testimony beyond the scope of her
treatment of plaintiff and [the physician’s] conclusions must fall within the province of a lay
witness.” Id. (quoting Parker v. Cent. Kan. Med. Ctr., 57 F. App’x. 401, 404 (10th Cir. 2003)).
Consequently, a treating physician who was not disclosed as an expert witness “cannot testify to
medical opinions regarding causation, because such opinions require knowledge derived from
previous professional experience, which falls squarely within the scope of Rule 702 and thus by
definition outside of Rule 701.” Id. (discussing James River Ins., 658 F.3d at 1215 (internal
quotation marks and brackets omitted) (subsequent citations omitted)). The distinction is aptly
explained as follows:
When the physician testifies that the plaintiff was coughing and running a fever,
this is lay witness testimony governed by Rule 701. However, if the physician also
testifies that he diagnosed the patient as having Reactive Airways Dysfunction
Syndrome caused by exposure to a toxic chemical, then this is testimony based on
scientific, technical, or other specialized knowledge and must be qualified under
Rule 702.
Id. (quoting Stephen A. Saltzburg et. al, Federal Rules of Evidence Manual § 701,02[7], at 701–
18 (10th ed. 2011)).
Here, the Court has ruled that Dr. Box may testify about his personal observations on the

5

The fact that treating physicians are hired to treat, and not for purposes of trial, provides an additional
reason to exclude Dr. Box as an expert. See Walker, 2019 WL 145626, at *18. Here, it is unclear whether
Plaintiffs ever hired Dr. Box to treat their horses prior to the event in December 2016. More importantly,
Plaintiffs’ intent in hiring Dr. Box to take samples in March 2019 is crystal clear—their sole purpose was
to use the lab results as evidence in this lawsuit. Thus, Dr. Box was not acting as a treating physician in that
instance.

17

day he visited the ranch in December 2016. (See Doc. 113 at 3–4.) His testimony that he ruled out
rattlesnake bites or evidence of locally-growing toxins is proper lay witness testimony. But any
testimony about his diagnosis of monensin toxicity would be based on scientific, technical, or other
specialized knowledge, because the specific effects of monensin on horses is outside the realm of
the layperson.
For these reasons, the Court denies Plaintiffs’ motion to reconsider its decision regarding
the scope of Dr. Box’s testimony. Because Dr. Box may not testify as an expert, and he may not
testify in his capacity as a treating veterinarian about his opinion regarding diagnosis or causation,
Plaintiffs will not have a causation expert to establish that monensin injured or killed their horses.
(See Doc. 113 at 12–13.) The Court held previously—and Plaintiffs do not move to reconsider this
finding—that “New Mexico requires expert testimony to show causation in cases . . . where
causation cannot be determined by common knowledge that an average person ordinarily
possesses.” (Id. at 13 (quoting Am. Mech. Sols., L.L.C. v. Northland Process Piping, Inc., 184 F.
Supp. 3d 1030, 1060–61 (D.N.M. 2016) (internal quotation marks and brackets omitted)
(subsequent citations omitted)).) To prove negligence, negligence per se, strict products liability,
breach of contract, and breach of implied warranties, Plaintiffs are required to establish a causation
element. (See id. at 13–22.) Plaintiffs have no expert to testify to causation, and their claims
necessarily fail. Their new arguments do not change the Court’s decision.
Finally, Plaintiffs argue that the Court should reconsider its previous rulings because they
inadvertently omitted pages from Dr. Hall’s deposition that they relied on to create an issue of fact
regarding the amount of monensin it takes to injure a horse. (See Docs. 119 at 10–11; 113 at 9
n.6.) Even if Plaintiffs had properly submitted the missing pages the first time, this dispute of fact
would not change the Court’s ruling that Plaintiffs have failed to present an expert on the issue of

18

causation. The late admission of the missing pages does not provide a reason for the Court to
reconsider its rulings on summary judgment.
B.

The Court will deny Plaintiffs’ motion on the basis that they have wasted
judicial resources.

Alternatively, the Court will deny Plaintiffs’ motion for reasons of judicial economy. “As
set forth above, a motion to reconsider is improper where it merely advances new arguments that
were available at the time of the original motion. There is good reason for this rule, as requiring
the Court to revisit issues wastes scarce judicial resources.” Otero v. Hartford Cas. Ins. Co., No.
13-601 MV/CG, 2015 WL 11089509, at *3 (D.N.M. Mar. 23, 2015). Were the Court to reconsider
its rulings now, two months after Plaintiffs received their new evidence and the parties’ dispositive
motions were fully briefed, and on the basis of new arguments they could have raised previously,
the Court’s previous time and effort would be wasted.
And as Defendant notes in its motion to strike (see Doc. 123 at 2), Plaintiffs filed their
motion late. Given that trial, currently set to begin on July 29, 2019, is fast approaching, the Court
set an expedited briefing schedule and ordered Mr. Berlin to submit the motion to reconsider no
later than June 5, 2019. (See Doc. 117 at 2.) Plaintiffs disregarded the Court’s order and, without
explanation or leave of Court, filed their motions on June 6, 2019. 6 (See Docs. 119; 120.) This
disregard for the Court’s orders and deadlines is not new: Plaintiffs failed to produce documents
identified in their initial disclosures in violation of the Court’s Initial Scheduling Order (see Docs.
9 at 2; 19 at 1; 66 at 3); filed an untimely motion to extend the deadline to disclose their experts

6

Pointing to his computer’s time stamp on the Filing Notice, Mr. Berlin argues that he filed his motion only
seven minutes late. (See Doc. 126-1 at 2.) In a footnote, he explains that he was working in his Arizona
office and acknowledges that the official CM/ECF Notice of Electronic Filing shows he filed his motion at
1:06 a.m. MDT. (See id.) The Court expects litigants to adhere to its deadlines using the Court’s time zone,
regardless of where the attorney hangs his or her hat.
Mr. Berlin makes no attempt to explain why he filed his motion to supplement on June 6, 2019, at 7:37 p.m.
MDT.

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and expert reports (see Docs. 25 at 2; 55); failed to produce Dr. Box’s CV in violation of Judge
Vidmar’s order and the Scheduling Order (see Docs. 25 at 2; 42 at 2; 56 at 2; 57 at 5–6); filed their
motion for summary judgment after the Court-imposed deadline (see Docs. 70 (ordering Plaintiffs
to file by 5:00 p.m. on December 3, 2018); 73 (filing motion at 6:34 p.m.)); failed to provide
reasons to support their motion for summary judgment in accordance with Local Rule 56.1(b) (see
Docs. 73 at 14–15; 113 at 18 n.8 (noting “that the manner in which Plaintiffs have presented their
‘arguments’ both for and against summary judgment have thwarted the Court’s efforts at providing
a meaningful opinion that could focus the issues at trial and . . . save the parties, and the Court,
considerable time and expense”) (internal quotation marks, brackets, and citation omitted) & 20);
filed an untimely supplement to their motion for sanctions without seeking leave of Court (see
Docs. 88; 89; 92); filed an untimely supplement to their response to summary judgment in violation
of the Court’s order and without seeking leave of Court (see Docs. 99; 100; 101); failed to file
witness or exhibit lists in accordance with the parties’ Proposed Pretrial Order (see Doc. 85 at 14);
and failed to file a timely response to Defendant’s motion in limine (see Doc. 115) or seek leave
for an extension.
Plaintiffs have also disregarded their burden to support their own claims. They begin their
motion to reconsider by asserting “that there are two types of laboratory analyses with the potential
to resolve the issue of whether or not there was enough monensin in the feed to harm the horses as
alleged:” (1) the testing of “multiple samples of the feed”; and (2) the testing of “multiple samples
from the heart of a recently deceased horse (i.e., fresh samples) . . . .” (Doc. 119 at 3–4.) Yet,
Plaintiffs failed to test multiple samples of the feed they had on hand, choosing instead to feed it
to their cattle. (See Doc. 58-D at 171:18–22 (Q: “[W]hat did you do with the rest of the feed that
was in the overhead bin?” A: “We fed it to our cows only.”).)

20

Similarly, despite their knowledge that they needed to test multiple samples from the heart
of a recently deceased horse (see Doc. 100 at 6 (noting that Plaintiffs’ veterinarian instructed them
“that there would ‘have [to] be fresh deaths in order to learn any more than [what] was learned
from the first two’”)), they failed to either obtain testing of the horses that died naturally in 2017
or euthanize horses to perform the required testing until five months after discovery closed.
Curiously, Plaintiffs also attempt to shift blame to Defendant for allegedly discarding a tote of
fines 7 that Plaintiffs never formally requested (see Doc. 104 at 9), for failing to perform its own
tests on the fines (see Doc. 83 at 5 (discussing Defendant’s “failure to sample and test” the fines)),
for failing to perform its own tests on the horses in December 2016 (see Doc. 67 at 7 (wondering
why Defendant’s employee, who investigated their complaint, “didn’t take tissue samples, from
the third and fourth horses to die, which were found a few days before he came to the scene[, and]
why he didn’t seek any testing on the surviving horses”), and for objecting when Plaintiffs sought
to euthanize and test horses after the discovery deadline had passed (see Doc. 119 at 4–5 (noting
that Defendant was “given notice that one or more of the horses would need to be euthanized . . .
but dithered and then declined, instead stating an objection to the procedure(s) and the evidence
that it would produce”); see also Doc. 127 at 7 (asserting that Defendant “chose to put [itself] in
this position”)). In short, Plaintiffs’ lack of respect for Court orders and deadlines and lack of
diligence in pursuing evidence to bolster their claims has wasted judicial resources.
III.

Plaintiffs have identified no valid reason to reconsider the Court’s order regarding
sanctions.
Plaintiffs also ask the Court to reconsider Judge Vidmar’s order denying their motion for

sanctions based on spoliation of evidence. (See id. at 19–23; Docs. 68; 104.) In their earlier motion

7

“Fines are remnants of the feed pellets, and are created during the manufacturing process, as well as the
delivery process as the pellets move and fines break off from the pellets.” (Doc. 104 at 3 n.2 (quoting Doc.
90 at 4).)

21

for sanctions, Plaintiffs argued that Defendant failed to retain fines from the December 2016
production process of Plaintiffs’ feed, despite Defendant’s knowledge that the fines were relevant
to a potential legal claim. (See Docs. 119 at 19; 68.) Judge Vidmar denied the motion for two
reasons. First, Judge Vidmar stated that he would not award spoliation sanctions for the alleged
destruction of evidence that Plaintiffs never requested in formal, written discovery. (See id. at 9.)
Second, he denied the motion because Plaintiffs did not establish “that Defendant failed to preserve
evidence after it knew that litigation was imminent.” (Id. at 10.)
Again, Plaintiffs move for reconsideration pursuant to Rules 59 and 60, neither of which
provide the correct legal standard. Examining Plaintiffs’ motion pursuant to Rules 72 and 54(b),
the Court will deny it.
A.

The Court will deny an appeal pursuant to Rule 72 as untimely.

Plaintiffs failed to file objections to Judge Vidmar’s order denying their Motion. See Fed.
R. Civ. P. 72(a). It does not appear that Plaintiffs are presently objecting to Judge Vidmar’s order
under Rule 72, but even if the Court construed the Motion as a Rule 72 objection to a magistrate
judge’s nondispositive order, the Court would overrule the objections because Judge Vidmar
committed no clear error and Plaintiffs failed to timely file their objections within 14 days of the
order. See Fed. R. Civ. P. 72(a).
B.

The Court will deny Plaintiffs’ motion to reconsider pursuant to the Rule 59(e)
standard of review.

Although Plaintiffs never cite the applicable standard, it appears that Plaintiffs base their
motion on a “need to correct clear error or prevent manifest injustice.” (See Doc. 119.) See also
Ankeney, 524 F. App’x at 458 (quotation omitted). Plaintiffs argue that Judge Vidmar erred in
finding that there was no evidence that Defendant destroyed the fines after it knew litigation was
imminent. (Doc. 119 at 21.) Plaintiffs assert that “[t]here is ample evidence” that the fines were
22

still on Defendant’s property when Mr. Derrick called Defendant on December 21, 2016, to inform
Defendant that Plaintiffs “wished to be compensated for their dead and damaged horses” due to
monensin-tainted feed. (See id.) Plaintiffs cite to deposition testimony from two of Defendant’s
employees, who testified that the fines “should have been in the tote bay” at the time of the
December phone call, because they were typically held for four to six months. (Id. at 22 (citation
omitted).) One of the employees later changed his testimony and indicated that the feed could have
been taken out of storage days or weeks later, rather than months. (Id. at 23 (citation omitted).)
Considering this same evidence, Judge Vidmar found that Plaintiffs failed to meet their burden, as
it was “unclear whether . . . Defendant had already destroyed the fines” at the time of the December
21, 2016 phone call. (Doc. 104 at 10–11.)
Plaintiffs have failed to demonstrate that Judge Vidmar’s decision was arbitrary,
capricious, manifestly unreasonable, or is fundamentally unfair. See Thymes, 2016 9777487, at *2.
They complain that Judge Vidmar’s order severely prejudiced them, as “Plaintiffs’ case is to be
dismissed for lack of adequate proof of sufficient monensin in the feed to cause the harm to the
horses.” (Doc. 119 at 21.) And they contend that “[w]ithout the missing feed/fines to test, the Court
dismissed most of Plaintiffs’ claims for lack of adequate evidence of how much monensin was in
the feed.” (Id.) As the Court explained above, Plaintiffs have made numerous decisions that have
impeded their ability to prove their claims, including their decision to not request the fines through
formal discovery.
More importantly, the Court denies Plaintiffs’ motion because they only argue that Judge
Vidmar erred in finding that Plaintiffs failed to prove that Defendant destroyed the fines after the
December 2016 phone call. They do not contest the primary reason that Judge Vidmar denied their
motion for sanctions: that he would not award spoliation sanctions for the alleged destruction of

23

evidence that Plaintiffs never requested in formal, written discovery. (See Doc. 104 at 9.) 8 Because
this reason operated as a separate and independent ground to deny the motion for sanctions,
Plaintiffs’ failure to contest it here dooms the instant motion. To borrow a phrase from Plaintiffs,
“Respectfully, [Mr. Berlin] missed the point.” (Doc. 119 at 21.) 9
In short, Plaintiffs have provided no reason for the Court to reconsider any of the rulings
in the April 12, 2019 Memorandum Opinion and Order denying Plaintiffs’ motion for sanctions,
or in its May 8, 2019 Memorandum Opinion and Order on the parties’ motions for summary
judgment.
IV.

The Court will grant Defendant’s motion in limine as unopposed.
Local Rule 7.1(b) provides that “[t]he failure of a party to file and serve a response in

opposition to a motion within the time prescribed for doing so constitutes consent to grant the
motion.” D.N.M. LR-Civ. 7.1(b). Defendant filed its motion in limine on May 28, 2019. (Doc.
115.) Approximately one month has passed, and Plaintiffs have not filed a response or a motion
seeking an extension of time to file a response. On June 19, 2019, Defendant filed a Notice of
Completion of Briefing and stated that “Plaintiffs did not file a response to [the motion in limine]
within the 14[-]day period required by D.N.M. LR-Civ. 7.4(a) and” thus the motion is ripe for
decision. (See id.)
The Court finds that, pursuant to the Local Rules, Plaintiffs’ failure to respond constitutes
consent to grant the motion. Accordingly, the parties may not present any evidence, argument, or

8

It is precisely for this reason that Plaintiffs have nothing more “than the hearsay avowal of counsel” that
Defendant no longer has the fines. (See Doc. 119 at 21.)

9

Plaintiffs also appear to take issue with Judge Vidmar’s determination that Defendant’s failure to produce
its monensin inventory did not merit sanctions. (See Doc. 119 at 23.) Because Plaintiffs fail to explain how
Judge Vidmar allegedly erred, the Court will deny their motion as to the monensin inventory.

24

reference to horse deaths, horse injuries, emotional distress, or monetary damages at trial that are
irrelevant to Plaintiffs’ remaining claims.
V.

Federal Rule of Civil Procedure 54(b) certification is improper in this case.
While Plaintiffs have not filed a motion for certification under Rule 54(b), Mr. Berlin has

twice mentioned Plaintiffs’ desire to immediately appeal the Court’s ruling on summary judgment.
(See Docs. 117 at 2 (Mr. Berlin noting that Plaintiffs may wish to immediately appeal, pursuant to
Federal Rule of Civil Procedure 54(b)); 126 at 6 n.4 (asserting that “there is no just reason to delay
appealing”).) Rule 54(b) gives the Court discretion to enter a final judgment on fewer than all
claims in a lawsuit in limited circumstances. See Fed. R. Civ. P. 54(b); see also Jordan v. Pugh,
425 F.3d 820, 826 (10th Cir. 2005). “Rule 54(b) establishes three prerequisites for appeal of a
separate final judgment on fewer than all claims in a lawsuit: (1) multiple claims; (2) a final
decision on at least one claim; and (3) a determination by the district court that there is no just
reason for delay.” Jordan, 425 F.3d at 826 (citing 10 Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Fed. Practice & Proc. § 2656, at 48–60 (3d ed. 1998)).
“The controlling jurisdictional question is thus whether” the claims the Court dismissed—
negligence, negligence per se, strict products liability, breach of contract, and breach of implied
warranties—are “distinct and separable from the claims left unresolved”—fraudulent
misrepresentation, negligent misrepresentation, and unfair, deceptive, and unconscionable trade
practices under the Unfair Practices Act (UPA). See id. at 826–27 (quotation omitted). “For
purposes of Rule 54(b), a claim comprises ‘all factually or legally connected elements of a case
. . . .’” Id. at 827 (quoting Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001)).
Courts look at whether the claims overlap or are redundant, whether they “turn on the same factual

25

questions, whether they involve common legal issues, and whether separate recovery is possible.”
See id. (citations omitted).
Here, all of Plaintiffs’ claims flow from a single issue or event: whether Defendant’s feed
was tainted by monensin. Thus, even though Plaintiffs have asserted different theories of liability,
“the concept of a ‘claim’ under Rule 54(b) denotes the aggregate of operative facts which give rise
to a right enforceable in the courts.” Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1028
(6th Cir. 1994) (internal quotation marks and citations omitted); see also Wright, Miller & Kane §
2657 (noting that “when plaintiff is suing to vindicate one legal right and alleges several elements
of damage or seeks multiple remedies, only one claim is presented and subdivision (b) does not
apply”).
This conclusion is reinforced by examining the possible damages of Plaintiffs’ remaining
claims. First, because they are not able to prove causation, Plaintiffs “cannot pursue a claim for
negligent misrepresentation[,]” because “nominal and punitive damages are not available in a
negligence action absent proof of actual damages.” See Encinias v. Whitener Law Firm, P.A., 310
P.3d 611, 620 (N.M. 2013) (citation omitted). Second, under the UPA, Plaintiffs are permitted “to
recover actual damages or the sum of one hundred dollars ($100), whichever is greater.” Lohman
v. Daimler-Chrysler Corp., 166 P.3d 1091, 1099 (N.M. Ct. App. 2007) (quoting N.M. Stat. Ann.
§ 57-12-10(B)). As Plaintiffs cannot prove actual damages without a causation expert, the most
they may recover is $100. See id. In short, Plaintiffs’ recovery for two of their three remaining
claims is tied to causation and this Court’s opinion on summary judgment. Plaintiffs’ claims are
not separable for purposes of Rule 54(b).
Moreover, Plaintiffs have not provided any argument to show there is no just reason for
delay, nor can the Court find such reason where the determination of damages relies so heavily on

26

causation. See Jordan, 425 F.3d at 826. Accordingly, the Court will deny Plaintiffs’ request for
Rule 54(b) certification.
Because trial is imminent, Plaintiffs are faced with a tactical decision if they wish to
immediately appeal the Court’s prior ruling dismissing their causation-related claims rather than
proceed to trial on the remaining claims. As discussed above, the Court will not allow Plaintiffs to
appeal some of their claims while others remain pending, but they are free to dismiss the remaining
claims, to make an offer of settlement to Defendant on the remaining claims, or to devise some
other strategy to pursue an immediate appeal.
If Plaintiffs wish to make such a decision so that they may pursue an immediate appeal,
they must file an appropriate notice (i.e., a notice of voluntary dismissal) no later than 5:00 p.m.
MDT on Friday, July 5, 2019. If Plaintiffs do not file a notice, the case will move forward to trial.
THEREFORE,
IT IS ORDERED that Plaintiffs’ Motion for Reconsideration (Doc. 119) is DENIED;
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Supplement (Doc. 120) is
GRANTED insofar as the Court considered the exhibits in ruling on Plaintiffs’ motion to
reconsider;
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiffs’ Motion for
Reconsideration (Doc. 123) is DENIED AS MOOT;
IT IS FURTHER ORDERED that Defendant’s Motion in Limine (Doc. 115) is
GRANTED AS UNOPPOSED;
IT IS FURTHER ORDERED that if Plaintiffs wish to file an immediate appeal of the
Court’s summary judgment ruling, they must file an appropriate notice as described herein; and

27

IT IS FURTHER ORDERED that the final pretrial conference currently set for Tuesday,
July 2, 2019, is hereby VACATED and RESCHEDULED for Thursday, July 11, 2019, at 8:45
a.m. MDT.

________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE

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