Zino, Jr. et al v. Whirlpool Corporation et al
Memorandum of Opinion and Order For the reasons set forth herein, Defendants' Motion for Reconsideration (ECF No. 436 ) and to Strike the Declaration of Pamina Ewing, Accompanying Exhibits, and Portions of Plaintiffs' Corresponding Post Trial Briefing (ECF No. 441 ) are denied. Plaintiffs' Motion for Leave to File a Surreply (ECF No. 451 ) is granted. Judge Benita Y. Pearson on 7/27/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JOSEPH ZINO JR., et al.,
WHIRLPOOL CORPORATION, et al.,
CASE NO. 5:11CV1676
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 436, 441,
Pending before the Court are Defendants’ Motion for Reconsideration (ECF No. 436) and
Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 451). The Motion for Reconsideration
is opposed by Plaintiffs and fully briefed. ECF Nos. 449, 450. Also pending is Defendants’
Motion to Strike the Declaration of Pamina Ewing, Accompanying Exhibits, and Portions of
Plaintiffs’ Corresponding Post Trial Briefing. ECF No. 441. Plaintiffs responded (ECF No. 447)
and Defendants replied (ECF No. 448).
The Court is fully informed having reviewed the record and that submitted by the parties,
including supplemental legal authority. For the following reasons, Plaintiffs’ Motion for Leave
to File a Surreply is granted. Defendants’ Motion for Reconsideration and Motion to Strike are
I. Motion for Reconsideration (ECF No. 436) and Motion for Leave to File Surreply (ECF
Defendants move the Court to reconsider its rulings that Defendants had agreed to
provide Plaintiffs with vested healthcare benefits, arguing that the contracts are unambiguous,
and, in the alternative, that recently discovered extrinsic evidence demonstrates Defendants’ lack
of intent to vest. ECF No. 436; see also ECF Nos. 310, 360, 373. The Motion for
Reconsideration is opposed by Plaintiffs and fully briefed. ECF Nos. 449, 450. For good cause
shown, Plaintiffs’ Motion for Leave to File Surreply (ECF Nos. 451) is granted. For the
following reasons, Defendants’ Motion for Reconsideration is denied.
The Court summarized the factual and procedural background of this case in its summary
judgment ruling. ECF No. 191; Zino v. Whirlpool, No. 5:11CV01676, 2013 WL 4544518 (N.D.
Ohio Aug. 27, 2013). During Phase One of the trial, the Court addressed one narrow question:
have Plaintiffs proven by a preponderance of the evidence that the governing collective
bargaining agreements (“CBAs”) entitle them to receive retiree health benefits for life? ECF No.
226 at PageID #: 7728. Based on the evidence adduced at trial, Plaintiffs moved for
reconsideration of the portion of the Court’s Memorandum of Opinion and Order entering
summary judgment in favor of Defendants as to the members of Subclass B. ECF No. 261. In a
Memorandum of Opinion and Order resolving Plaintiffs’ motion and Phase One of the trial, the
1. The members of Subclass C were promised lifetime, company-paid health
benefits under the 1992–1995, 1995–2000, and 2000–2003 CBAs.
2. With respect to Subclass D: (1) the members of Groups 1 and 2 were promised
lifetime, company-paid health benefits under the same rules that applied to the
members of Subclass C; (2) as to some members of Group 3 and all members of
Group 4—they were not promised lifetime health benefits but they are entitled to
company-paid health benefits up to the age of 65 in accordance with the terms
established in Exhibit 5; (3) with respect to the members of Group 3 who are not
entitled to company-paid health benefits—they are nevertheless entitled to participate
in “retiree healthcare” until the age of 65 but they are responsible for paying the full
cost of the premiums; and (4) the members of Groups 5 and 6, to the extent there are
any, are neither entitled to lifetime retiree health benefits nor are they guaranteed
“access” to them beyond the expiration of the 2003-2007 CBA.
3. The ambiguity within Item 6(c) regarding the duration for which the Company
agreed to fund retiree health benefits, and the conflict between Item 6(c) and the 1977
Welfare Plan, are resolved by the evidence presented at trial proving that the
Company and the Union intended for the members of Subclass A to receive retiree
health benefits for life.
4. The applicable Sub-Agreement Provisions carried the 1980 Contract Settlement
through to the 1983–1986, 1986–1988, and 1988–1992 CBAs, entitling the members
of Subclass B to retiree health benefits for life. In addition, Retirees’ motion for
reconsideration and/or relief from entry of summary judgment as to Subclass B is
ECF No. 310 at PageID #: 10213–14.
After the Court’s ruling, a unanimous Supreme Court held that Tackett v. M&G Polymers
USA, LLC, 733 F.3d 589 (6th Cir. 2013) was decided in contravention with ordinary principles of
contract law. M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926, 931 (2015). This decision,
which struck down the Sixth Circuit’s “Yard-Man inference,” created an intervening change in
controlling law, and Defendants moved for reconsideration. ECF No. 332. The Court
reconsidered its prior rulings, relying on ordinary principles of contract law, as instructed by
Tackett. ECF No. 360. Ultimately, the Court maintained its rulings as to Subclasses A, C, and
D, but reversed its bench trial ruling as to Subclass B. Id. at PageID #: 10752–53.
Plaintiffs then moved the Court to reconsider the Court’s Entry of Judgment for
Defendants on the claims of Subclass B, arguing that the Court committed clear error of law in
its adjudication of Subclass B’s claims. ECF No. 362 (motion); ECF No. 367 (memorandum in
support). The Court granted the Motion and, after further reconsideration, returned to its original
post-trial ruling in favor of Plaintiffs as it applies to Subclass B. ECF No. 373. Ultimately, the
Court found the benefits for Subclass B to be vested lifetime benefits.
Defendants now move the Court to reconsider its prior rulings that Defendants had agreed
to provide Plaintiffs in Subclasses A, B, C, and Groups 1 and 2 of Subclass D with vested
healthcare benefits for life, and had agreed to provide Plaintiffs in Groups 3 and 4 of Subclass D
with vested healthcare benefits until the age of 65. ECF No. 436 (motion); ECF No. 437
(memorandum in support). Defendants argue that the Sixth Circuit Court of Appeal’s recent
ruling in Gallo v. Moen Inc., 813 F.3d 265 (6th Cir. 2016) contravenes the Court’s reasoning.
B. Standard of Review
The Federal Rules of Civil Procedure do not provide for motions for reconsideration.
The Sixth Circuit, however, has held that a motion to reconsider may be treated as a motion to
alter or amend a judgment under Fed. R. Civ. P. 59(e). See Rodriguez v. City of Cleveland, No.
1:08CV1892, 2009 WL 1565956, at *1 (N.D. Ohio June 6, 2009) (citing Smith v. Hudson, 600
F.2d 60, 62 (6th Cir. 1979)). Rule 59(e) motions, “though frequently brought, are granted only in
rare and unusual circumstances.” Rainworks Ltd. v. Mill-Rose Co., 1:06CV1549, 2009 WL
2382974, at *1 (N.D. Ohio July 30, 2009) (quoting GenCorp, Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999)). The motions “run contrary to notions of finality and repose” and
are therefore discouraged. Id. (quoting McConocha v. Blue Cross and Blue Shield Mutual of
Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (internal citations and quotations omitted)).
Accordingly, a district court “has considerable discretion in deciding whether to grant [a Rule
59(e)] motion.” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir.
2010); see also Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982) (“The grant or
denial of a Rule 59(e) motion is within the informed discretion of the district court.”).
A district court may grant a motion to alter or amend judgment only if there was (1) a
clear error of law, (2) newly discovered evidence, (3) an intervening change in controlling law, or
(4) a need to prevent manifest injustice. Am. Civil Liberties Union v. McCreary Cty., 607 F.3d
439, 450 (6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).
To constitute “newly discovered evidence,” the evidence must have been previously unavailable.
See GenCorp, 178 F.3d at 834. A Rule 59(e) motion is not intended to be utilized to relitigate
issues previously considered. Equal Emp't Opportunity Comm'n v. Argent Indus., Inc., 746 F.
Supp. 705, 706 (S.D. Ohio 1989). Neither should it be used as a vehicle for submitting evidence
which in the exercise of reasonable diligence could have been submitted before. Emmons v.
McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989) (“It is well established . . . that a district court
does not abuse its discretion in denying a Rule 59 motion when it is premised on evidence that
the party had in his control prior to the original entry of judgment.”).
Defendants move the Court to reconsider its prior rulings in light of the Sixth Circuit’s
recent decision in Gallo v. Moen Inc., 813 F.3d 265 (6th Cir. 2016). ECF No. 436. Defendants
argue that under Gallo, the plain language of the parties’ contracts unambiguously precludes
vested retiree benefits, and the Court erred by using extrinsic evidence to evaluate the contracts.
ECF No. 437 at PageID #: 13326. Alternatively, Defendants contend that even if the extrinsic
evidence were proper, evidence from the second phase of trial, and additional evidence not
presented at trial demonstrate that the Court’s rulings were in error. Id. Because Defendants
have not demonstrated a “clear error in law,” or other basis for reconsideration, the Court denies
the Motion to Reconsider.
Foremost, Defendants argue that Gallo instructs that there was no ambiguity in the
agreements in this case. ECF No. 437 at PageID #: 13331–39. In support, Defendants urge the
plain language of the contracts; general durational clause; reservation of rights clause; and
contrasting pension plan language. Id.
a. Contractual Language
Defendants contend that the parties’ contractual provisions regarding retiree healthcare
benefits are unambiguous and do not convey an intent to vest retiree healthcare benefits. ECF
No. 437 at PageID#: 13326–34. Defendant highlight the Sixth Circuit’s determination in Gallo
that “nothing in [the agreements] says that Moen committed to provide unalterable healthcare
benefits to retirees and their spouses for life.” Gallo, 813 F.3d at 270. Defendants also
emphasize the court’s rejection of the retirees’ argument that the use of the future tense (e.g. that
benefits “will be provided” or that future retirees “will be covered”) created ambiguity. Id. at
269–71. Defendants argue that the language used in this case is no more binding than that used
in Gallo, and, accordingly, Gallo mandates that the Court find no ambiguity. ECF No. 437 at
PageID #: 13332.
Defendants misunderstand the effect of Gallo. As a preliminary matter, the Court notes
that the Sixth Circuit limited its decision, emphasizing that it was based on the CBAs in Gallo.
Gallo, 813 F.3d at 274 (“As applied to this set of contracts . . . . (emphasis in the original)). To
say that Gallo created a bright-line rule requiring that a contract expressly include vesting
language is an overly broad reading of the case. In fact, the Sixth Circuit cautioned that its
decision did not create a clear-statement rule, and that courts should continue to apply “ordinary
principles of contract law” as instructed by Tackett. Id. at 274 (citing Tackett, 135 S. Ct. at 933).
Moreover, Defendants’ approach—comparing individual phrases of each contract with
language in the Gallo contracts—fails to take into account the context of the language within the
agreements. See Transp. Commc’n Emps. Union v. Union Pac. R.R. Co., 385 U.S. 157, 161
(1966) (“In order to interpret [a collective bargaining agreement] it is necessary to consider the
scope of other related collective bargaining agreements, as well as the practice, usage and custom
pertaining to all such agreements.”); see also 11 Williston on Contract § 32:5 (4th ed.) (ordinary
principles of contract law require a contract be read as a whole). Although Defendants are
correct that the use of the future tense, on its own, is insufficient to create ambiguity, when
viewed in the context of the contracts as a whole, the agreements in this case went beyond those
in Gallo and the Sixth Circuit’s recent decision, Cole v. Meritor, 855 F.3d 695 (6th Cir. 2017).1
After Defendants moved to reconsider, the Sixth Circuit decided Cole v.
Meritor, Inc., 855 F.3d 695 (6th Cir. Apr. 20, 2017). The appellate court noted that the
case was “materially indistinguishable” from Gallo, and, accordingly, reached the same
conclusion that the retirees’ benefits were not vested. The Cole court noted that language
indicating that benefits “shall be continued” was insufficient to vest the benefits. Id. at
In reviewing the contracts in this case, the Court, applying traditional principles of contract
interpretation in light of the Supreme Court’s decision in M & G Polymers USA, LLC v. Tackett,
135 S. Ct. 926 (2016), addressed the threshold inquiry: whether the language of the CBAs was
ambiguous as to the duration of retirees’ healthcare benefits. See Tackett, 135 S. Ct. at 935, 937;
see also Tackett v. M & G Polymers USA, LLC, 811 F.3d 204, 208–10 (6th Cir. 2016) (“Tackett
III”) (reviewing the subject agreements using “ordinary principles of contract law.”). In addition
to the vague phrasing, the Court properly found instances of ambiguity throughout the contracts.
ECF No. 360 at PageID #: 10746–47.
The Court’s finding of ambiguity is confirmed by other decisions recently made by the
Sixth Circuit. See Reese v. CNH Industrial N.V., 854 F.3d 877 (6th Cir. Apr. 20, 2017) (“Reese
III”); UAW v. Kelsey-Hayes Co., 854 F.3d 862 (6th Cir. Apr. 20, 2017). In neither of these cases
did the contracts at issue use the sort of clear-statement vesting language for which Defendants
advocate. Regardless of that, the Sixth Circuit found ambiguity as to the duration of healthcare
benefits in both cases. Kelsey-Hayes, 854 F.3d at 867 (quoting Tackett III, 811 F.3d at 209)
(“[W]e also cannot presume that the absence of such specific language, by itself, evidences an
intent not to vest benefits[.]”); Reese III, 854 F.3d at 881 (noting that the Tackett III court
“declined to adopt an ‘explicit language’ requirement in favor of companies.” (quoting Tackett
III, 811 F.3d at 209)). The Kelsey-Hayes court relied on the fact that the parties’ contracts barred
700. The Cole court also determined that the CBAs’ general durational clauses governed,
despite retirees’ evidence that the CBAs set specific durational limits on layoff and leave,
and that the CBAs set cost caps for retiree healthcare benefits. Id.
unilateral modification; that the contracts used different durational language for different
benefits; and other latent ambiguities in the agreements, as the parties had incorporated the same
language relating to healthcare benefits as they had in prior agreements. Kelsey-Hayes, 854 F.3d
at 868–69. In Reese III, the court found ambiguity “partially from the silence as to the parties’
intention.” Reese III, 854 F.3d at 883. The court also relied on the benefits’ “segregation from
other entitlements in the CBA,” and the tying of healthcare benefits to vested pension benefits.
For similar reasons, ambiguity exists in the case at bar. Like the CBAs in Kelsey-Hayes,
the basic labor agreements (“BLAs”) in this case required mutual consent to alter the agreements.
ECF No. 191 at PageID #: 6326. Accordingly, as in Kelsey-Hayes, “[b]ecause the contract here
barred unilateral modification, the applicability of the general-durational clause to the duration of
healthcare benefits raises some ambiguities.” Kelsey-Hayes, 854 F.3d at 868. Reese III further
bolsters the Court’s conclusion, as it also relied on the tying of healthcare and pension benefits.
As in Reese, the Welfare Plans in this case segregated benefits, noting that retiree benefits “shall
have the opportunity to continue,” e.g., Joint Exhibit 30 at § 3.01(c)(iii) (1992 Welfare Plan), but
setting concrete durational limits for other benefits. E.g., id. (setting specific durational limits for
the following: health insurance after a layoff (one month); health insurance for dependents in the
event of an employee’s disability (three months for the Basic Medical Expense Plan,
prescription, vision and dental plans; twelve months for Major Medical Benefits); health
insurance for dependents in the event of an employee’s death (cutoffs dependent upon amount of
pension credit earned); life insurance after a layoff or other terminated employment (three
months and one month, respectively); accidental death and dismemberment insurance in the
event of an employee’s absence due to illness or injury (six months); and health insurance in the
event of an employee’s absence due to illness or injury (six months if the illness or injury is
non-occupational; eighteen months if the disability occurred for occupational illness or injury)).
Furthermore, the Court originally found that it could not “ground its conclusion in the tying
inference.” ECF No. 360 at PageID #: 10751. Reese III clarifies that although the tying of
retiree health benefits to the receipt of a pension does not vest benefits, it can create ambiguity.
Reese III, 854 F.3d at 882–83.
For these reasons, in addition to the ambiguities the Court identified in its prior ruling, the
Court finds no basis to alter (i.e. reconsider) its ruling that there was sufficient ambiguity in the
contract language to permit the use of extrinsic evidence in the Court’s analysis.
b. Durational Clause
Defendants contend that the Court improperly “brushed aside a general duration clause,”
arguing that under Gallo, the presence of a general durational clause, without specific retiree
healthcare duration language, terminates any obligation to provide benefits. ECF No. 437 at
PageID #: 13335 (citing Gallo, 813 F. 3d at 267); see also ECF No. 450 at PageID #: 13796–98.
The blanket rule Defendants advocate is neither dictated by Gallo nor consistent with the
Supreme Court’s decision in M & G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2016) or
Sixth Circuit precedent. As evidenced by the Sixth Circuit’s recent decisions, the presence of a
general durational clause is not dispositive. In Reese III, the court found that “[s]ilence as to the
duration of retiree healthcare benefits, when combined with those benefits’ coupling to pensioner
status and their segregation from other entitlements in the CBA, overcomes any presumption that
the general-durational clause should govern.” Reese III, 854 F.3d at 883 (citing Tackett III, 811
F.3d at 208). Similarly, despite the presence of a general durational clause, the Kelsey-Hayes
court determined that the contract was ambiguous. Kelsey-Hayes, 854 F.3d at 868–69. As
discussed above, even despite the presence of a general durational clause, there are various
ambiguities in the contracts. Accordingly, the Court declines to revisit its ruling on this basis.
c. Reservation of Rights
Defendants contend that, under Gallo, the “Administration and General Provisions”
portion of each Exhibit A-1 contains a reservation of rights clause. ECF No. 437 at PageID #:
13336. The Exhibit A-1s state:
The administration of the amended Welfare Plan and of the insurance provisions
thereof, including, but not limited to, the selection and replacement of insurance
carriers, the purchase, renewal, cancellation and substitution of the appropriate
contracts of insurance, the collection and payment of premiums and the performance
of all necessary accounting, shall be solely by the Company. The Company shall
retain dividends and refunds, if any, from said policies of insurance.
e.g., Joint Exhibit 10 at 10. The Gallo court found that a clause giving the company “the right to
amend, cancel, or reinsure the policies or change the underwriters thereof, so long as [specified]
benefits are maintained for the life of this Agreement” was a reservation of rights clause. Gallo,
813 F.3d at 270 (alterations in original). Defendants argue that the Exhibit A-1 provisions are
equivalent to Gallo’s reservation of rights clause. ECF No. 437 at PageID #: 13336.
Unlike in Gallo, the Exhibit A-1s were governed by BLAs, which state: “Changes in, or
amendments to, the terms of this Agreement may be made at any time by mutual consent of the
Company and the Union. When amendment or revisions are made, they shall be reduced to
writing and be executed in the same manner as this Agreement.” E.g., Joint Exhibit 12 at 57
(1980 BLA). As has been determined by this Court, “the BLAs clearly recognize that Welfare
Plans are part of the ‘Agreement’ referenced in the mutual consent provision.” ECF No. 191 at
PageID #: 6326. No such mutual consent provision was present in Gallo, and the Court finds
this case distinguishable from Gallo’s reservation of rights clause.
Defendants also argue that these agreements incorporate the reservations of rights from
Group Insurance Plans and Summary Plan Descriptions issued between 1980 and 2009. ECF
No. 437 at PageID #: 13336 (citing Gallo, 813 F.3d at 269–70). The Court has determined that
these clauses, found in unilaterally published benefits summaries, were not incorporated into the
CBAs. ECF No. 191 at PageID #: 6323 (citing Moore v. Menasha Corp., 690 F.3d 444, 455–56
(6th Cir. 2012) and Bender v. Newell Window Furnishings, Inc., 681 F.3d 253, 264 (6th Cir.
2012)); ECF No. 310 at PageID #: 10190–91; ECF No. 360 at PageID #: 10744. Defendants,
citing testimony from the first phase of trial and case law already considered by the Court, offer
no reason for the Court to reconsider its rulings. See, e.g., ECF No. 437 at PageID #: 13338
(citing ECF No. 360 at PageID #: 10743–44 (discussing Bd. of Trs. v. Moore, 800 F.3d 214 (6th
Cir. 2015)) in support); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998) (“A motion under Rule 59(e) is not an opportunity to re-argue a case.”).
For these reasons, the Court declines to reconsider its prior rulings that the agreements do
not contain a reservation of rights clause.
d. Pension Plan Language
Defendants contrast the Exhibit A-1s and Exhibit A-2s, arguing that, under Gallo, the use
of the word “vested” in the pension plans, but its absence in the welfare plans, “demands a
difference in meaning.” ECF No. 437 at PageID #: 13338–39 (citing Gallo, 813 F.3d at 270).
The rule is not so clear cut. As Plaintiffs correctly note, 29 U.S.C. § 1053(a) requires employers
to state explicitly in pension plans that such benefits are vested, but there is no such law for
welfare benefits. ECF No. 449 at PageID #: 13771 n. 3. Therefore, the Court cannot assume
intent behind the obligatory inclusion of the word “vested” in the pension plans or its absence in
the welfare plans.
Nor does Sixth Circuit precedent require this conclusion. The Gallo court specifically
pointed to the language in the CBAs specifying that “when [certain] benefits are no longer
payable . . . the normal monthly survivor pension benefit will be paid for the rest of the
survivor’s life.” Gallo, 813 F.3d at 270. So, it was not just the use of the word vested, but the
clear intent that the pension benefits would continue on beyond the life of other benefits that
guided the court in Gallo. Such distinction is lacking from the contracts at issue. Although
Defendants cite numerous instances where the Exhibit A-2s use the word “vested” or refer to the
“lifetime” of the pensioner, the agreements lack the express intent that the pension benefits
continue beyond the life of other benefits. In fact, the original provision granting continued
benefits to future retirees was included under the Pension section, suggesting that the parties
considered this benefit to be guaranteed for life. See Joint Exhibit 14 at 1–3.
Furthermore, the agreements at issue in both Kelsey-Hayes and Reese III featured vested
pension benefits or provisions explicitly guaranteeing pension benefits for life, but were
ambiguous on the longevity for healthcare benefits. Kelsey-Hayes, 854 F.3d at 868; Reese III,
854 F.3d at 882–83. These cases demonstrate that the express vesting of pension benefits, but
not of healthcare benefits, is not dispositive.
For these reasons, the Court finds that the express vesting of pension benefits is not a
sufficient basis upon which to reconsider its decision.
For the foregoing reasons, the Court declines to alter or “reconsider” its rulings, and
maintains that there is sufficient ambiguity to consider the extrinsic evidence.
ii. Extrinsic Evidence
In the alternative, Defendants argue that extrinsic evidence weighs against vesting. ECF
No. 437 at PageID #: 13339–43. Defendants argue that Gallo “makes clear that the extrinsic
evidence that this Court relied on carries no weight in a vesting determination.” ECF No. 450 at
PageID #: 13798. Defendants take issue with the Court’s reliance on the fact that the Company
continued to cover retiree healthcare benefits after expiration of the 1980 Contract Settlement
and 2003 Exhibit A-1. Id. at PageID #: 13799. Gallo did not bar all consideration of continued
payment. Instead, the court noted that “a company does not act inconsistently when (1) it
continues paying healthcare benefits to retirees and (2) reserves the right to alter or eliminate
those benefits in the future.” Gallo, 813 F.3d at 274 (emphasis added). As discussed above and
unlike in Gallo, there was no reservation of rights clause in this case. Accordingly, Gallo is
inapplicable in this instance.
Defendants also argue that the Court improperly relied on Tim Schiltz’s testimony, which
he admitted was based on his understanding of Yard-Man-era law. ECF No. 450 at PageID #:
13799. But, to advance their position Defendants can point to only one, inconsequential
reference Shiltz makes to since-overruled case law. Id. (citing ECF No. 255 at PageID #: 8918).
Defendants’ other arguments that Mr. Shiltz’s testimony was “ambiguous,” ECF No. 437 at
PageID #: 13342, is equally insufficient to serve as a basis for reconsideration. See Am. Civil
Liberties Union v. McCreary Cty., 607 F.3d 439, 450 (6th Cir. 2010) (quoting Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005)) (finding that a district court may grant a motion to
alter or amend judgment only if there was (1) a clear error of law, (2) newly discovered evidence,
(3) an intervening change in controlling law, or (4) a need to prevent manifest injustice).
Defendants also argue that the facts have shifted, citing “new extrinsic evidence”:
depositions from Jim Gensley (Defendants’ Exhibit 170) and Tim Schiltz (Defendants’ Exhibit
177); testimony from the trial’s second phase; and 1983 contract negotiation documents. Id. at
PageID #: 13799–13802. This “newly discovered” evidence is not the type contemplated by
Rule 59. “To constitute ‘newly discovered evidence,’ the evidence must have been previously
unavailable.” GenCorp, Inc. v. Am. Intern. Underwriters, 178 F.3d 804, 833 (6th Cir. 1999); see
also Leisure Caviar, LLC v. U.S. Fish and Wildlife Service, 616 F.3d 612, 617 (6th Cir. 2010)
(declining to find that information discovered during a deposition was “newly discovered”).
Although these depositions and testimony from the second trial were not in evidence at the time
the Court rendered its initial decision, Defendants offer no explanation why they could not have
presented this testimony at the first phase of trial. The argument for the 1983 contract
negotiation documents is even more specious—these documents surely existed at the time of the
The Court finds the matter distinguishable from Gallo, and finds no other reason to alter
its earlier decision.
For these reasons, the Court denies Defendants’ Motion for Reconsideration.
II. Motion to Strike (ECF No. 441)
Defendants move to strike the Declaration of Pamina Ewing, submitted in support of
Plaintiff’s Final Proposed Findings of Facts and Conclusions of Law for Phase Two of Trial; the
exhibits attached to Ms. Ewing’s declaration; and the portions of Plaintiffs’ Final Proposed
Findings of Facts and Conclusions that are based on Ms. Ewing’s declaration or the attached
exhibits. Defendants contend that these exhibits were not previously produced during the
litigation or introduced at trial. ECF No. 442 at PageID #: 13545–46. Defendants argue that the
exhibits are procedurally improper, as Plaintiffs have not moved to reopen the record or obtained
Defendants’ consent to proffer this evidence. Id. at PageID #: 13546. Furthermore, Defendants
argue that they will suffer undue prejudice if the Court accepts these exhibits into evidence. Id.
at PageID #: 13548.
Plaintiffs counter that the information in Exhibits 2 through 10 of Pamina Ewing’s
Declaration are encompassed by the parties’ pretrial stipulation that “Medicare.gov” is a joint
exhibit. ECF No. 447 at PageID #: 13727; see also ECF No. 408 at PageID #: 12317 (describing
“JX 125” as “Medicare.gov Website”). Plaintiffs characterize these exhibits as “provid[ing]
basic background information in a readily accessible format, information which was either
testified to by Whirlpool trial witness David Osterndorf and/or constitutes official
pronouncements of federal agencies pursuant to statutory or regulatory authorization.” ECF No.
447 at PageID #: 13727. Exhibit 1 is a notice sent to class members by Express Scripts. Id. at
PageID #: 13728. The document includes a summary of cost-sharing under the current
prescription drug plan. Id. Plaintiffs offer this exhibit to clarify facts already admitted into
The Court denies the Motion to Strike. Regarding Exhibits 2 through 10, the parties’
communications and the Court’s trial ruling establish that Joint Exhibit 125 encompasses all
Medicare.gov materials, “without limitation.” ECF No. 395-8 at PageID #: 11576 (email from
Attorney Celina Joachim to Plaintiffs’ counsel); see also ECF No. 423 at PageID #: 12538–39.
Moreover, any prejudice to Defendants is minimal. Defendants offer some of the same
information in their own Proposed Post-Trial Findings of Fact. See, e.g., ECF No. 439 at PageID
#: 13515, ¶ 335 (noting that Medicare Part B has a $166 annual deductible, and citing
Defendants’ Exhibit 143). Additionally, Plaintiffs’ Exhibits are largely corroborated by Mr.
Osterndorf’s trial testimony or governmental documents.
Exhibit 1 is a document that corroborates information already in the record in
Defendants’ Exhibit 37, and clarifies Defendants’ otherwise misleading statement that drug copayments only increased to $5, $10, and $15 (ECF No. 439 at PageID #: 13478–79, ¶ 186).
Unlike in E.E.O.C. v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980), in which the
district court requested evidence which, until that time, had not been introduced into the record,
Exhibit 1 was put before Defendants, in the form of Defendants’ own exhibit. See also Wright v.
Southwest Bank, 554 F.2d 661, 664 (5th Cir. 1977) (finding harmless error when post-trial
records of employees’ absences had previously been introduced into the record).
In the alternative, the Court takes judicial notice of these exhibits. See, e.g., ECF No. 423
at PageID #: 12538–39. Under Rule 201, the court can take judicial notice of adjudicative facts,
including “‘[p]ublic records and government documents available from reliable sources on the
Internet,’ such as websites run by governmental agencies.” Fed. R. Evid. 201; U.S. ex rel.
Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014); see also Wells Fargo
Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. Aug. 31, 2015)
(“As to the seven documents retrieved from official government websites [including
Medicare.gov,] it is clearly proper to take judicial notice. Courts routinely take judicial notice of
such governmental records.”); Tomaszycki v. Turkelson, No. 15-CV-12298, 2015 WL 6605441,
at *1 n.1 (E.D. Mich. Oct. 30, 2015) (“Public records and government documents, including
those available from reliable sources on the Internet, are subject to judicial notice.”).
Furthermore, Rule 803 of the Federal Rules of Evidence provides that “public records” are not
excluded by the rule against hearsay. A document is a “public record” if it is a “a record or
statement of a public office” and “it sets out . . . a matter observed while under a legal duty to
report” and “the opponent does not show that the source of information or other circumstances
indicate a lack of trustworthiness.” Fed. R. Evid. 803.
For these reasons, Defendants’ Motion to Strike is denied.
For the foregoing reasons, Defendants’ Motions to Reconsider and to Strike are denied.
Plaintiffs’ Motion for Leave is granted.
IT IS SO ORDERED.
July 27, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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