Hunter et al v. Kennedy et al

Filing 325

MEMORANDUM (Order to follow as separate docket entry) re 229 Order (memorandum filed previously as separate docket entry),,,,,,,,,,,,,, Terminate Motions,,,,,,,,,,,,, 313 Second MOTION for Reconsideration re 229 Order (memorandum filed pre viously as separate docket entry),,,,,,,,,,,,,, Terminate Motions,,,,,,,,,,,,, 228 Memorandum (Order to follow as separate docket entry),,,,,,,,, filed by Margaret T Hunter. We will deny the motion without prejudice, and consistent with Judge Wilsons memorandum opinion, we will permit the plaintiffs to raise the issue at the conclusion of the trial testimony. An appropriate order follows. Signed by Magistrate Judge Joseph F. Saporito, Jr on 11/12/21. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARGARET T. HUNTER, et al.,
Plaintiffs,

CIVIL ACTION NO. 3:17-cv-00007

v.

(SAPORITO, M.J.)

RICHARD P. KENNEDY, M.D., et
al.,
Defendants.
MEMORANDUM
This matter is before the court on the plaintiffs’ motion for
reconsideration of the court’s order dated July 14, 2020, which denied the
plaintiffs’ motion in limine to exclude any reference to contributory
negligence. (Doc. 313; Doc. 2291). For the reasons set forth herein, the
motion for reconsideration will be denied without prejudice to the
plaintiffs raising the issue at the conclusion of the trial testimony.
I.

Statement of Facts
As we write solely for the parties, we incorporate by reference the

factual background in a series of memoranda previously issued by the

The Order of July 14, 2020, was issued by the Honorable Jennifer P.
Wilson of this court. This action was reassigned to the undersigned upon
consent of the parties on June 14, 2021. (Doc. 294)

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court (Doc. 224; Doc. 226; Doc. 228). In addition to the facts relied upon
by this court in issuing its Memorandum addressing the plaintiffs’ motion
in limine to exclude reference to contributory negligence, the thrust of
the plaintiffs’ instant motion is that we, as a district court, have the
inherent power to reconsider prior interlocutory orders. The defendants
contend that the plaintiffs’ motion should be denied because it is
untimely, because the issue was raised in the original motion, and
because we cannot overrule an order by a prior judge. 2
The motion is ripe for disposition.
II.

Legal Standards
Under Rule 54(b), “[a]n order that does not dispose of every claim

in an action ‘may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.’”

With respect to this last argument, we note that, since the prior
ruling, the parties have consented to having these proceedings conducted
by a United States magistrate judge pursuant to 28 U.S.C. § 636(c) and
Rule 73 of the Federal Rules of Civil Procedure. “[o]nce the parties
consent to having a case reassigned to a magistrate judge pursuant to §
636(c), the magistrate judge has all the powers which the district court
judge had with respect to that case, including the power to alter a prior
ruling by the district judge. While exercise of that power may (and
should) be a rare occurrence, the power exists.” Fieldwork Boston, Inc. v.
United States, 344 F. Supp. 2d 257, 274 (D. Mass. 2004); see also Cooper
v. Brookshire, 70 F.3d 377, 378 n.6 (5th Cir. 1995).

2

2

Clark Distrib. Sys., Inc. v. ALG Direct, Inc., 12 F. Supp. 3d 702, 717 (M.D.
Pa. 2014) (quoting Fed. R. Civ. P. 54(b)); see also Qazizadeh v. Pinnacle
Health Sys., 214 F. Supp. 3d 292, 295 (M.D. Pa. 2016). Reconsideration
of interlocutory orders “may be had even if a movant cannot show an
intervening change in controlling law, the availability of new evidence
that was not available when the court issues the underlying order, or ‘the
need to correct a clear error of law or fact or to prevent manifest
injustice.’” Qazizadeh, 214 F. Supp. 3d at 295 (quoting Max’s Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
“Instead, the court may permit reconsideration whenever ‘consonant
with justice to do so.’” Id. (quoting St. Mary’s Area Water Auth. v. St. Paul
Fire & Marine Ins. Co., 412 F. Supp. 2d 630, 632 (M.D. Pa. 2007)); see
also Clark Distr. Sys., 12 F. Supp. 3d at 717 (citing United States v. Jerry,
487 F.2d 600, 605 (3d Cir. 1973)).
III. Discussion
In ruling upon the plaintiffs’ motion in limine, Judge Wilson noted
in the margin that “comparative or contributory negligence with regard
to the manner in which Plaintiff fell is not at issue in this case.” (Doc.
228,

at

30

n.12).

Also,

Judge
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Wilson

observed

that

the

comparative/contributory negligence issues “do not cleanly fit into the
motion in limine procedure.” (Id. at 31). Further, Judge Wilson stated
that the issue should be “decided after trial.” (Id.) Her observation that
the jury should be instructed on contributory/comparative negligence if
the defendants present such evidence is consistent with Pennsylvania
law. Id. If there is some evidence of contributory negligence, the issue
should be submitted to the jury. Pascal v. Carter, 647 A.2d 231, 233 (Pa.
Super. Ct. 1994). The burden of establishing contributory negligence
rests on the defendant. Id.
Here, the plaintiffs seek an order, in limine, precluding any
allegation of comparative fault for declining an alleged serious and
complicated surgery which Mrs. Hunter contends that she perceived as
making her condition worse. The issue is more appropriately decided
after the evidence is in and where the court could then weigh the
testimony to determine whether to charge the jury on contributory
negligence or mitigation of damages as suggested by Pa. SSJI (Civ) §
7.100.
After reading Judge Wilson’s memorandum opinion regarding the
original motion in limine, it appears to the undersigned that
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reconsideration of

this issue is dependent upon the presence of

testimony, or lack thereof, to support a contributory negligence defense
at the conclusion of the trial testimony.

This is consistent with

Pennsylvania law regarding the issue of whether it is reasonable for a
plaintiff to decline a surgical procedure. When determining damages for
personal injuries in Pennsylvania, it is proper for a jury to consider the
failure of the plaintiff to undergo surgery or medical treatment that an
ordinarily

prudent

man

would

have

submitted

to

under

the

circumstances in an effort to better his condition. Bartunick v. Koch, 170
A.2d 563, 565 (Pa. 1961); Yost v. Union R.R. Co., 551 A.2d 317, 322 (Pa.
Super. Ct. 1988) (it was reversible error not to charge the jury on
mitigation of damages where plaintiff’s own physician testified that,
barring complications such as infection, plaintiff’s ankle would have been
stable if he had undergone recommended surgery and rehabilitation).
Therefore, we will deny the motion without prejudice, and
consistent with Judge Wilson’s memorandum opinion, we will permit the
plaintiffs to raise the issue at the conclusion of the trial testimony.

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An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge
Dated: November 12, 2021

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