Deeds v. Whirlpool Corporation et al

Filing 57

OPINION AND ORDER OF DISMISSAL, denying 50 Motion; for reconsideration, denying 54 Motion for Oral Hearing. the Court reaffirms its grant of Defendants first motion for summary judgment, the Court VACATES Magistrate Judge Stacys order (#24) gr anting leave to Plaintiffs to file a first amended complaint and strikes that complaint for lack of diligence as a matter of law,the Court DENIES Plaintiffs motion for reconsideration (#50); and(the Court DENIES Plaintiffs motion for oral hearing (#54).This case is DISMISSED..(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
August 10, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JUDITH DEEDS and DAVID DEEDS,
Plaintiffs,
VS.
WHIRLPOOL CORPORATION and
SEARS, ROEBUCK AND CO.,
Defendants.

§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

Civ. A. H-15-2208

OPINION AND ORDER OF DISMISSAL
The new third amended complaint (instrument #48) in the above
reference

personal

injury/products

liability

action,

filed

pursuant to Court order (#42), seeks dismissal of Plaintiffs
Judith Deeds and David Deeds’ remaining claims1 for breach of
express warranty and of implied warranties of merchantability and
fitness for a particular purpose, arising out of personal injuries
suffered by Judith Deeds when she slipped and fell in her home on
October 21, 2012 on water that allegedly leaked from a cracked
evaporator

pan

in

a

refrigerator

1

manufactured

by

Defendant

The Court previously dismissed all Plaintiffs’ original
claims for strict liability, negligence, the related evidentiary
rule of res ipsa loquitur, negligent misrepresentation, and
respondeat superior as time-barred when it granted (#38)
Defendants’ first motion for summary judgment (#9). Before the
Court issued its ruling, however, Plaintiffs filed a motion for
leave to amend (#17) to add the new breach of warranty claims,
which had four-year statutes of limitations, and which Magistrate
Judge Frances Stacy granted (#24) on June 20, 2016, even though
the discovery deadline had expired.
-1-

Whirlpool Corporation (“Whirlpool”),2 a “manufacturer” under Tex.
Civ. Prac. & Rem. Code § 82.001(4), and sold to Plaintiffs on or
about June 18, 2012 by Defendant Sears, Roebuck and Co.(“Sears”),
located at Memorial City Mall, Houston, Texas, a “seller” under
Tex. Civ. Prac. & Rem. Code § 82.001(3).3

Pending before the

Court are the following matters:
1.

Plaintiffs David Deeds and Judith Deeds’ court-

ordered response to the Court’s Opinion and Order of
October 17, 2016 to explain why they failed to meet
Rule 26's requirements for non-retained experts and why
they

should

be

permitted

to

try

to

cure

their

deficiencies;
2.

Defendants Whirlpool and Sears’s third motion for

summary judgment (instrument #48);
3.

Plaintiffs David Deeds and Judith Deeds’ motion for

reconsideration (#50) of the Court’s Opinion and Order
of October 17, 2016 (#42); and

2

It was a side-by-side refrigerator, Model ED2SHEXXQ00,
Serial No. HR22177644.
3

Section 82.001(4) defines “manufacturer” as “a person who
is a designer, formulator, constructor, rebuilder, fabricator,
producer, compounder, processor, or assembler of any product or
any component thereof and who places the product or any component
part thereof in the stream of commerce.”
Section 82.001(3) provides, “‘Seller’ means a person who is
engaged in the business of distributing or otherwise placing, for
any commercial purpose, in the stream of commerce for use or
consumption a product or any component thereof.”
-2-

4.

Plaintiffs’ motion for oral hearing (#54) on their

motion for reconsideration.
As a threshold matter, after carefully reviewing all the
extensive briefing, the Court finds that an oral hearing would not
be helpful and denies Plaintiffs’ motion (#54).
Procedural History
According to the Original Petition (#1-1, Ex. A, at ¶¶ 6.16.2), Plaintiffs purchased a refrigerator, which was designed,
produced, and packaged by Whirlpool, on June 18, 2012.

It was

delivered to Plaintiffs’ home and installed by Sears agents or
employees on or about June 20, 2012.

Id. at § 6.2.

Judith Deeds

was seriously injured on October 21, 2012 (#1-1, Ex. A, ¶ 6.3),
when she slipped and fell on water that leaked from a cracked
evaporator pan in the allegedly defective refrigerator.
Plaintiffs filed their Original Petition in the 164th Judicial
District

Court,

Harris

County,

Texas,

on

October

17,

2014,

alleging state-law claims of strict liability, negligence, the
related

evidentiary

rule

of

res

ipsa

loquitur,

negligent

misrepresentation, and respondeat superior, only four days before
the two-year statute of limitations under Tex. Prac. & Rem. Code
Ann. § 16.003(a) for these claims was to expire.
Campbell 964 S.W. 2d 265, 270 (Tex. 1997).

-3-

Murphy v.

The statute begins to

run when the wrongful act caused the legal injury,4 i.e., in the
Deeds’ case, when Judith Deeds allegedly slipped and fell because
of the water leaking from the evaporator pan of the purportedly
defective

refrigerator

on

October

21,

2012.

Nevertheless

Plaintiffs did not serve Whirlpool with process until July 8, 2015
(#1, Ex. B), nor serve Sears until July 13, 2015 (#1, Ex. C).5

4

See Moreno v. Sterling Drug, Inc., 787 S.W. 2d 826, 827
(Tex, 1990)(“[A] cause of action can generally be said to accrue
when the wrongful act effects an injury, regardless of when the
plaintiff learned of such injury.”).
5

Under Texas law, to “bring suit” a plaintiff must not only
file a petition within the limitations period, but must also
exercise due diligence in having process issued and served on the
defendant. Gant v. DeLeon, 786 S.W. 2d 259, 260 (Tex. 1990)(per
curiam). In Ashley v. Hawkins, 293 S.W. 3d 175, 179 (Tex.
2009)(citations omitted), the Texas Supreme Court opined,
If a party files its petition within the limitations
period, service outside the limitations period may
still be valid if the plaintiff exercises diligence in
procuring service on defendant. When a defendant has
affirmatively pleaded the defense of limitations, and
shown that service was not timely, the burden shifts to
the plaintiff to prove diligence. Diligence is
determined by asking “whether the plaintiff acted as an
ordinarily prudent person would have acted under the
same or similar circumstances and was diligent up until
the time the defendant was served.” Although a fact
question, a plaintiff’s explanation may demonstrate a
lack of diligence as a matter of law, “when one or more
lapses between service efforts are unexplained or
patently unreasonable.” Thus [the plaintiff] has the
burden to “present evidence regarding the efforts that
were made to serve the defendant, and to explain every
lapse in effort or period of delay.”
The Ashley court found that the plaintiff failed to exercise due
diligence necessary to validate service on the defendant almost a
year after the statute of limitations expired. Id. See also
Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W. 3d 338
-4-

Defendants removed this action to federal court on diversity
jurisdiction on July 31, 2015.
On April 15, 2016 Sears and Whirlpool filed their first
motion

for

summary

judgment

(#9)

on

statute

of

limitations

grounds, followed by a second one (#22) on June 9, 2016.

In the

latter they additionally argued that parties in products liability
lawsuits must designate a liability expert to satisfy their burden
of proof, but that Plaintiffs had not done so, and thus Defendants
are entitled to judgment as a matter of law on all claims asserted
against them.

Nissan Motor Co., Ltd. v. Armstrong, 145 S.W. 3d

131, 137 (Tex. 2004) and its progeny.

On October 11, 2016 the

Court granted the first motion for summary judgment and dismissed
as

time-barred

Plaintiffs’

claims

for

strict

liability,

negligence, the related evidentiary rule of res ipsa loquitur,
negligent

misrepresentation,

and

respondeat

superior

in

the

Original Petition (#38).
Meanwhile, on May 19, 2016 Plaintiffs had moved for leave to
amend (#17), and on June 20, 2016 Magistrate Judge Francis Stacy
granted that motion (#24), even though Defendants opposed the
motion on a number of grounds (#21): (1) the untimeliness of the
motion

and/or

undue

delay

in

litigating

(as

evidenced

in

Plaintiffs’ filing their Original Petition four days before their
limitations period expired, neglecting to serve Defendants for

(Tex. May 8, 2015).
-5-

another nine months, and the scheduling order’s November 4, 2015
deadline for amending the complaint was January 15, 2016, which
Plaintiffs failed to respect in moving for leave to amend four
months later (#17)); (2) futility of the claims to be added since
Defendants had filed their first motion for summary judgment (#9)
on valid statute of limitations grounds (Defendants subsequently
filed their motion for leave to amend to add the breach of
warranty claims with longer limitations period, apparently to
negate the effect that the first summary judgment motion would
have if granted).

Furthermore because Judge Stacy erroneously

applied the standard of Rule 15(a) in granting Plaintiffs’ motion
for leave to amend to add the three breach of warranty claims,
instead of the correct Rule 16(a), this Court will reexamine that
order here.
In addition on March 18, 2016 Defendants served Plaintiffs
with Defendants’ First Set of Requests for Production, First Set
of Interrogatories, and First Set of Requests for Admissions.
Under Federal Rule of Civil Procedure 33(b)(2), Plaintiffs had
thirty days to respond, in other words until April 18, 2016, but
they also failed to meet this deadline.

Defendants then filed

their first motion to compel (#11 & 12) on May 3, 2016, in which
they also charged that Plaintiffs designated David Deeds as an
expert witness, but failed to provide the required summary of
facts and opinions about which Deeds was expected to testify (Rule

-6-

26(a)(2)), and sought a court order requiring David Deeds to
comply with Federal Rule of Civil Procedure 26(a)(2)(C)(i) and
(ii).
The Response (#15) by Plaintiffs’ counsel to Defendants’
motion to compel (#11 & 12), filed on May 16, 2016, claimed that
counsel was out of his office for healthcare mediation training
with the American Arbitration Association in New York City from
March 16-20, 2016, and then he went to a settlement conference in
New Orleans for a different case filed in Louisiana.

He also

claimed that the deadline for filing a response to Defendants’
first motion for summary judgment (#9, filed on April 15, 2016)
“interrupted and delayed the Plaintiffs’ Response to Defendants’
First Set of Interrogatories to Judith Dean and First Request for
Production to Plaintiffs since Plaintiffs’ preparation of their
response to Defendants’ First Motion for Summary Judgment had to
take priority . . .”

#15 at p. 2.

He cites no authority that

being busy with other tasks for other cases excuses a failure to
respond timely.

He also does not explain why he did not file a

motion asking for an extension.

Plaintiffs filed their Rule 26

Disclosures and their responses to Defendants’ First Requests of
Admissions

on

or

about

April

2,

2016.

In

their

Rule

26

Disclosures, Plaintiffs stated regarding David Deeds’ designation
that Deeds was not “retained or specially employed to provide
testimony” and therefore their Disclosures fully complied with

-7-

Rule 26(a)(2)(C)(i) and (ii). #15 at p.2. Furthermore Plaintiffs
waited until this response, #15 at p. 2, filed on May 16, 2016,
to ask for an extension of time to file discovery responses.

Id.

On June 20, 2016 Plaintiffs filed their amended complaint
(#25) asserting some of the same limitations claims that the Court
dismissed that same day, but also the newly added claims for
breach of warranty, both express and implied, which are subject
to a four-year statute of limitations. Tex, Bus. & Com. Code Ann.
§ 2.725.
The Court’s Opinion and Order of October 11, 2016 (#38)
granted Defendants’ first motion for summary judgment (#9) on the
grounds that Plaintiffs’ claims of strict product liability,
negligence, res ipsa loquitur, negligent misrepresentation, and
respondeat superior were time-barred.

In its Opinion and Order

of October 17, 2016 (#42), the Court reaffirmed the dismissal of
the

claims

evidentiary

for

strict

rule

of

liability,
res

negligence,

ipsa

loquitur,

the

related
negligent

misrepresentation, and respondeat superior and addressed the
remaining claims of breach of express warranty and breach of
implied

warranties

particular purpose.

of

merchantability

and

of

fitness

for

a

The Court identified the elements of the

different warranties, pointed out other characteristics, noted
when expert testimony is required under each, and distinguished
between retained and non-retained expert witnesses.

-8-

In the same

Opinion and Order (id. at pp. 25-32) the Court went into great
detail about why Plaintiffs’ amended complaint failed to satisfy
the requirements of Rule 12(b)(6) in pleading these claims and
highlighted the fact that Plaintiffs failed to serve Defendants
with their Original Petition until July 13, 2015, nearly nine
months after the two-year statutes of limitations for personal
injury for Plaintiffs’ claims for strict liability, negligence
(and

res

ipsa

loquitur),

negligent

misrepresentation,

and

respondent superior had expired, and emphasized Plaintiffs’ patent
lack of diligence in this litigation.

The Court granted leave to

Plaintiffs to file an amended complaint that would satisfy the law
and the pleading requirements for their warranty claims, which
were added to their pleadings with Magistrate Judge Stacy’s
approval, and to explain why Plaintiffs had not satisfied Federal
Rule of Civil Procedure’s requirements for their non-retained
experts

and

deficiencies.

why

they

should

now

be

allowed

to

cure

their

Given Plaintiffs’ deficient pleadings, the Court

denied as premature Defendants’ second motion for summary judgment
without prejudice to their rearguing their claims if they filed
a third amended complaint and it survived any motions to dismiss.
The Court further ordered Plaintiffs to file the amended complaint
by November 7, 2016.

Plaintiffs filed this new [third amended]

complaint (#48) right on that deadline.
Applicable Law
-9-

For a timely lawsuit, Plaintiffs must bring suit within the
applicable limitations period and use due diligence to serve
defendant with process (emphasis added by this Court).

Gant v.

Deleon, 786 S.W. 2d 259, 260 (Tex. 1990)(Finding that although
suit was timely filed within the statute of limitations, plaintiff
was not served until more than six years after the suit was filed
and almost eight years after the accident.

“When a plaintiff

files a petition within the limitations period, but does not serve
the defendant until after the statutory period has expired, the
date of service relates back to the date of filing if the
plaintiff exercised diligence in effecting service.”), citing Zale
v. Rosenbaum, 520 S.W. 2d 889, 890 (Tex. 1975)(per curiam).

“To

obtain summary judgment on the grounds that an action was not
served within the applicable limitations period, the movant must
show

that,

as

a

matter

effectuate service.”

of

law,

diligence

Id., citing id.

was

not

used

to

See, e.g., DeLeon v. Gant,

773 S.W. 2d 396, 397 (Tex. App.--San Antonio 1989)(“The existence
of diligence is usually a question of fact, but if no excuse is
offered,

or

if

the

lapse

of

time

and

the

plaintiff’s

acts

conclusively negate diligence, a lack of diligence will be found
as

a

matter

of

law”),

overruled,

786

S.W.

2d

259

(Tex.

1990)(reversing because plaintiffs’ unexplained delay of three
periods totaling 38 months in 6 years in obtaining service on
defendant established failure to use diligence as a matter of
-10-

law); Perkins v. Groff, 936 S.W. 2d 661, 667-68 (Tex. App.--Dallas
1996, writ denied)(“Mere filing of suit will not interrupt the
running of limitations unless due diligence is exercised in
issuance and service of citation.”); Rigo Manufacturing Co. v.
Thomas,

458

S.W.

2d

180

(Tex.

1970)(dismissed

for

lack

of

diligence in seventeen and one-half months delay in the issuance
and service of citation), citing Ricker v. Shoemaker, 81 Tex. 22,
26 S.W. 645 (1891); Primate Constr., Inc. v. Silver, 884 S.W. 2d
151,

153

(Tex.

1994)(“It

is

the

responsibility

of

the

one

requesting service, not the process server, to see that service
is properly accomplished.”); Broom v. McMaster, 992 S.W. 2d 659,
664 (Tex. App.--Dallas 1999)(“The purpose behind a statute of
limitations is not only to encourage a plaintiff to prosecute her
claims within a certain period of time, but just as important, to
advise the defendant of the claims against him in a timely fashion
so that he may prepare his defense and preserve evidence before
the lapse of time has rendered this process difficult, if not
impossible.”).
Summary judgment may be granted when service of suit is
accomplished beyond the limitations period. Murray v. San Jacinto
Agency, Inc., 800 S.W. 2d 826, 830 (Tex. 1990).
limitations period for Plaintiffs’ claims of

The two year

strict liability,

negligence, the related evidentiary rule of res ipsa loquitur,
negligent misrepresentation, and respondeat superior expired on
-11-

October 21, 2014.

Plaintiffs did not serve Defendants until July

13, 2015, a passage of nearly nine months since the statute of
limitations

expired.

If

the

petition

is

filed

within

the

limitations period but the defendants is not served until that
period has expired, the date of service relates back to the date
of filing if the plaintiff exercises due diligence in obtaining
service.

Gant v. DeLeon, 786 S.W. 2d 259, 260 (Tex. 1990).

It

is the responsibility of the party requesting service to ensure
it is properly and timely effected. Belleza-Gonzalez v. Villa, 57
S.W. 3d 8, 11 (Tex. App.--Houston [14th Dist.] 2001).

Delay in

serving the defendant may constitute cause for dismissal of the
plaintiff’s petition only if the plaintiff failed to exercise due
diligence in attempting to effect service.

Id. at 11 (“Lack of

due diligence in serving process on a defendant has been found as
a matter of law after a five and four-fifths of a month delay.”),
citing Hansler v. Mainka, 807 S.W. 3d, 5 (Tex. App.--Corpus
Christi 1991, no writ)(five and four-fifths month delay); Webster
v. Thomas, 5 S.W. 3d 287, 289 (Tex. App.--Houston [14th Dist.]
1999, no pet.)(five months delay); Gonzalez v. Phoenix Frozen
Foods, Inc., 884

S.W. 2d 587, 590 (Tex. App.--Corpus Christi

1994, no writ)(five months); Butler v. Ross, 836 S.W. 2d 833, 83536 (Tex. App.--Houston [1st Dist.] 1992, no writ); Allen v. Bentley
Labs., Inc., 538 S.W. 2d 857, 860 (Tex. App.--San Antonio 1976,
writ ref’d, n.r.e.)(almost six months delay); Weaver v. E-Z Mart
-12-

Stores, Inc., 942 S.W. 2d 167, 169-70 (Tex. App.--Texarkana
1997)(service of process nine months after the running of the
statute of limitations).

Initially Defendants bear the burden of

conclusively showing the limitations bar; if they succeed, the
burden shifts to Plaintiffs to demonstrate their exercise of due
diligence; if Plaintiffs succeed, Defendants must then demonstrate
why that exercise was not sufficient to relate the date of service
back to the date of filing.

Belleza-Gonzalez, 57 S.W. 3d at 11.

While generally the existence of due diligence is a question of
fact, if plaintiff provide no excuse for untimely service “or if
the

lapse

of

time

and

the

plaintiff’s

acts

are

such

as

conclusively negate diligence, a lack of diligence will be found
as a matter of law.”

Perry v. Kroger Stores, Store No. 119, 741

S.W. 2d 533, 534 (Tex. App.-Dallas 1987, no writ).

In accord,

e.g., Webster, 5 S.W. 3d at 289; McCord v. Dodds, 69 S.W. 3d 230,
233 (Tex. App.-Corpus Christi 2001, pet. denied).
Among the lapses of time that courts have recognized as
conclusively negating diligence include plaintiffs’ excuses for
delay6 or failure to pay the fee necessary for issuance of
citation7 or when one or more lapses between service efforts are

6

Reynolds v. Alcorn, 601 S.W. 2d 785, 788 (Tex. Civ. App.Amarillo 1980).
7

Klemm v. Shroeder, 204 S.W. 2d 675m 677 (Tex. Civ. App.-San Antonio 1947, no writ).
-13-

unexplained or patently unreasonable.8
Since this action involves personal injuries resulting from
an alleged of breach of express and/or implied warranty out of the
sale of goods, the applicable statute of limitations under Texas
law is Texas Business & Commercial Code Ann. § 2.725.9

Garcia v.

Texas Instruments, Inc., 610 S.W. 2d 456 (Tex. 1980)(holding that
the Texas UCC warranty provisions establish a cause of action for
personal injuries and are governed by the four-year limitations
provision of UCC article 2.725); Garvie v. Duo-Fast Corp., 711 F.
2d 7, 48 (5th Cir. 1983).

While the Garcia court considered that

the time of tender of delivery of the goods might be the time of
accrual, the Texas Supreme Court made it clear that a cause of
action for breach of implied warranty on contract “accrues at the
time of delivery, not at the time of discovery . . . ‘regardless

8

Gant, 786 S.W. 2d at 260.

9

The relevant portion of § 2.725 provides,

(a) An action for breach of any contract for sale must
be commenced within four years after the cause of
action has accrued. By the original agreement the
parties may reduce the period of limitation to not less
than one year but may extend it.
(b) A cause of action accrues when the breach occurs,
regardless of the aggrieved party’s lack of knowledge
of the breach. A breach of warranty occurs when tender
of delivery is made, except that where a warrant
explicitly extends to future performance of the goods
and discovery of the breach must await the time of such
performance the cause of action accrues when the breach
is or should have been discovered.
-14-

of the aggrieved party’s lack of knowledge of the breach.”

See

also Clark v. DeLaval Separator Corp., 639 F.2d 1320, 1325 (5th
Cir. 1981)(holding that a cause of action for breach of implied
warranty accrues on the date of tender of delivery to the consumer
of the defective goods); Timberlake v. A.H. Robins Co., Inc. 727
F.2d 1363, 1367 (5th Cir. 1984).

Thus Plaintiffs’ claims accrued

on June 20, 2012.
Plaintiffs’ Response (#45) to Court’s Opinion and Order (#42)
As their explanation (#45) for the deficiencies pointed out
in the Court’s Opinion and Order (#42), Plaintiffs state that they
complied

with

Rule

26

and

especially

relied

on

Rule

26(a)(2)(A)(“Disclosure of Expert Testimony”)10, (B)(“Witnesses Who
Must Provide a Written Report”),11 and 26(a)(2)(C)(“Witnesses Who

10

Rule 26(a)(2)(A) states, “In addition to the disclosures
required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
705.”
11

Rule 26(a)(2)(B) states,

Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written
report--prepared and signed by the witness--if the
witness is one retained or specially employed to
provide expert testimony in the case or one whose
duties as the party’s employee regularly involve giving
expert testimony. The report must contain:
(i) a complete statement of all opinions the witnesses
will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them;
-15-

Do Not Provide a Written Report”),12 as well as on the 2016 edition
of O’Connor’s Federal Rules–-Civil Trials. Plaintiffs understood
that Rule 26(a)(2)(B) identified which witnesses

must provide a

written report, “prepared and signed by the witness--if the
witness is one retained or specially employed to provide expert
testimony in the case . . .”
expert

witnesses

designated

Since they believed none of the
by

Plaintiffs

was

“retained”

or

“specially employed” to provide expert testimony, they thought
they were not required to provide a report “prepared and signed
by

the

designated

witnesses.”

Moreover

Rule

26(a)(2)(C)

particularly identified in brief paragraph form the “subject

(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness’s qualifications, including a list of
all publications authored in the previous ten years,
the witness testified as an expert at trial or by
deposition; and
(v) a statement of the compensation to be paid for the
study and testimony in the case.
12

Rule 26(a)(2)(C)(“Witnesses Who Do Not Provide a Written
Report”) provides,
“Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence 702,
703, or 705; and
(ii) a summary of the facts and opinions to which the
witness is expected to testify.
-16-

matter on which the expert was to present evidence under Federal
Rules of Evidence 702,13 703,14 or 705,15 while Rule 26(a)(2)(C)(i)
and (ii) provides a summary of the facts and opinions about which

13

Federal of Evidence 702 provides,

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
14

Federal Rule of Evidence 703 provides,

An expert may base an opinion on facts or data in the
case that the expert has been made aware of or
personally observed. If experts in the particular
field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need
not be admissible for the opinion to be admitted. But
if the facts or data would otherwise be inadmissible,
the proponent of the opinion may disclose them to the
jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their
prejudicial effect.
15

Federal Rule of Evidence 705 states,

Unless the court orders otherwise, an expert may state
an opinion--and give the reasons for it--without first
testifying to the underlying facts or data. But the
expert may be required to disclose those facts or data
on cross-examination.
-17-

the witness is expected to testify.
In their Rule 26 Disclosures (#7), Plaintiffs identified
Defendant Sears’ service technician, Than Pham, the repairman who
came to Plaintiffs’ home to repair their purportedly defective
refrigerator, as a person with “knowledge of relevant facts
regarding the service and repair on the product [in question].”
Nevertheless

Plaintiffs

admit

to

some

weakness

in

their

submissions:

“If not expressly stating, at least implying, that

the subject matter of his testimony would be regarding the service
and repairs he made to the refrigerator[,] including his opinions
regarding his findings from his service and repair.

Though

obviously not as detailed as set out in Rule 26, Plaintiffs have
conveyed the extent of their knowledge regarding subject matter
and opinions that Mr. Pham may possess regarding his expected
testimony.”

#45 at p. 2.

They insist, “Mr. Pham is, in fact, an

employee and/or agent of Defendant Sears whose knowledge regarding
Mr. Pham’s opinions is superior to the Plaintiffs[‘].

The

Defendants have in no way been prejudiced or surprised regarding
the testimony of [their] own employee.”

Id.

Plaintiffs’ second, designated, non-retained expert in their
Rule 26 Disclosures of expert witnesses is Eric Sabonghy, M.D.
They identify him as the “Doctor possessing knowledge relative to
Plaintiff Judith Deeds’ injuries, rehabilitation, and costs.” #45
at p. 3.

Plaintiffs refer Defendants to Dr. Sabonghy’s medical

-18-

records for opinions (all of which have been produced) about what
he might be expected to testify at trial, which Plaintiffs claim
is “essentially the same information required by the Rule,”
putting Defendants on notice that he would testify about Judith
Deeds’

medical

treatment

and

the

witnesses’

opinions

about

diagnosis, treatment, prognosis, and cost of her medical care.
Defendants have not been prejudiced by Plaintiffs’ delay because
Plaintiffs maintain that they have produced all of Plaintiffs’
medical records and billing records, including those from Dr.
Sabonghy.
Plaintiffs contend that both designated witnesses were nonretained because they were not paid to “draw opinions from facts
supplied by others in preparation for trial; neither’s opinions
were developed by others in preparation for trial,” nor “were
developed either for purposes of litigation or as part of the
witnesses’ duties as the [Plaintiffs’] employee.” Id. Plaintiffs
concede that “although the information provided by Plaintiffs
could have been more detailed, it adequately identified the
subject matters about which the witnesses would testify . . as
well as provided a summary of

of the facts and opinions to which

the witnesses were expected to testify.” Id. Moreover, since the
Court had already granted Plaintiffs’ motion for a continuance,
Plaintiffs can cure any deficiencies in their disclosures by
supplementing their Rule 26 Disclosures in compliance with the

-19-

requirements

of

Rules

26(a)(Required

Disclosures)

and

26(e)(Supplementing Disclosures and Responses).
Finally with respect to explaining Plaintiffs’ failure to
disclose, they admit that they “have attempted to show that,
although cryptic in form, the information provided by them in
Plaintiffs’ Rule 26 Disclosures regarding non-retained expert
witnesses was made in good faith and was an attempt to convey the
essential information required by the Rule. As the Court has duly
noted, the Plaintiffs’ Disclosures could benefit from more detail
to be fully compliant and the Plaintiffs request that the Court
accept

their

explanation

and

grant

them

time

to

cure

the

deficiencies identified in the Court’s [Opinion and order] of
October 17, 2016.”

#45 at p. 5.

Defendants’ Reply (#46) Regarding Compliance
With Rule 26(a) And (e) About Non-Retained Expert Witnesses
Defendants reply that “[a]fter being given yet another chance
to designate--or justify the deliberate failure to designate--a
liability expert witness in support of their product liability
claims, Plaintiffs have only doubled down and reiterated their
position that no such expert was needed for their claims.”

#46

at p.1. Plaintiff had represented that they would rely on a Sears
employee to meet their prima facie burden, but Defendants maintain
that this employee, alone, is not sufficient to sustain their
case-in chief.

Furthermore, because Plaintiffs still have not
-20-

complied with the Court’s Opinion and Order and because they still
do not have a qualified liability expert to offer opinions to
support their product liability claims, Defendants ask the Court
to dismiss this case with prejudice.
Plaintiffs’ Response (#49)
Plaintiffs contend

that (1) Texas law does not require the

designation of expert witnesses to prove causation in all product
liability cases, nor does it require an expert witness or direct
evidence to establish a products liability defect in breach of
warranty cases; and (2) Plaintiffs’ non-warranty claims are not
subject to dismissal until the Court rules on their motion for
reconsideration (#49, Ex A).

The responses to Defendants’ motion

for summary judgment therefore raise genuine issues of material
fact precluding a ruling on it.
Plaintiffs claim that Defendants bear the burden of proof on
summary judgment.

The elements of a strict product liability

cause of action are (1) a product defect existed at the time the
product left the manufacturer’s hands; (2) the defect made the
product unreasonably dangerous; and (3) the defect was a producing
cause of the plaintiff’s injuries.

Parsons v. Ford Motor Co., 85

S.W. 3d 323, 329 (Tex. App.--Austin 2002, pet. denied), citing
Rourke v. Garza, 530 S.W. 2d 794, 801 (Tex. 1975).

A plaintiff

can prove a manufacturing defect simply by producing evidence of
the product’s malfunction.

General Motors Corp. v. Hopkins, 548
-21-

S.W. 2d 344, 349-50 (Tex. 1977).

Usually expert testimony is not

required to establish a manufacturing defect.

Sipes v. General

Motors Corp., 946 S.W. 2d 143, 156 (Tex. App.--Texarkana 1997,
writ denied.).
Plaintiffs argue that they have designated an expert witness,
i.e., Pham, but alternatively they are not required to designate
“liability” expert witnesses in the instant suit because under
Texas law, lay testimony is sufficient to prove causation in cases
in which general experience and common sense will enable a layman
to determine, with reasonable probability, the causal relationship
between the event and the condition.

Kallassy v. Cirrus Design

Corp., No. Civ. A. 3:04-CV-072N, 2006 WL 1489, at *5 (N.D. Tex.
May 30, 2006)(“Correspondingly, “when the causal link is beyond
the jury’s common understanding, expert testimony is necessary.”).
Plaintiffs conclusorily state that here the facts forming the
basis

of

the

causal

link

are

not

beyond

a

jury’s

common

understanding and a jury of common lay persons will not have
difficulties in understanding the causal link here: “”(1) The
subject refrigerator sustained a cracked evaporator pan which
caused the accumulation of water on the Deeds’ kitchen floor; (2)
Plaintiff Judith Deeds slipped on the water puddle causing severe
injuries; and (3) Plaintiffs have direct evidence substantiating
the cracked evaporator pan and the injuries sustained therefrom.”
#49 at p. 7.

A jury is warranted to hear the claims and disputes

-22-

in this matter.
In Sipes, 946 S.W. 2d at 147-48, the trial court granted
summary judgment based on the plaintiff’s failure to designate an
expert witness to show the air bag which failed to deploy was
defective, but the court of appeals reversed, holding that if a
plaintiff

has

no

evidence

of

a

specific

design

defect

or

manufacturing defect, he may offer evidence of the product’s
malfunction as circumstantial proof of the defect.16

16

Disagreeing with Plaintiffs and Sipes, this Court would
point out that in Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d
797, 807 (Tex. 2006), the Texas Supreme Court opined,
Texas law does not generally recognize a product
failure standing alone as proof of a product defect.
“The inference of defect may not be drawn . . . from
the mere fact of a product-related accident.” [Ford
Motor Co. v. Ridgeway, 135 S.W. 3d 598, 602 (Tex. 2004]
(quoting Restatement (Third) of Torts: Products
Liability § 3 reporters’ note to cmt. d (1998). The
mere fact that the tire failed would amount to evidence
of a manufacturing defects “so slight as to make any
inference a guess [and] is in legal effect no
evidence.” Id. at 601. As we discussed in [General
Motors Corp. v. Hopkins, 548 S.W. 2d 344 (Tex. 1997),
overruled on other grounds, Duncan v, Cessna Aircraft
Co., 665 S.W. 2d 414 (Tex. 19840]], circumstantial
evidence of a product defect may be offered, but where,
in another case, “[t]he record contained no proof of
the [product’s] defect except the malfunction itself,”
and the product has been in use for years and subjected
to many adjustments and changes, the cause of the
product failure and proof of original defect could not
be answered except by speculation.” 548 S.W. 2d at
349-50. . . . “[T]he mere fact that a tire has a tread
separation does not mean that the tire is defective.”
-23-

Defendants’ Third Motion for Summary Judgment (#48)
Defendants seek dismissal of the breach of warranty claims
for failure to designate any expert witness to offer opinion
testimony on their product liability claims.
On April 1, 2016 Plaintiffs filed their Designation of Expert
Witness List (#7), which listed among others as non-retained
expert witnesses (1) “Pham,” the Sears technician who replaced the
evaporator pan in the Deeds’ refrigerator and will serve as a fact
witness, and (2) Plaintiff David Deeds as having “expert knowledge
regarding industrial plastics from his work in the manufacturing
industry.”

Furthermore, Plaintiffs maintain, as non-retained

witnesses, neither man was required to prepare a report or render
any opinions at this time.
Defendants’

motion

to

compel

in

part

challenged

the

designations as inadequate, especially that for David Deeds,
because it did not comply with Rule 26(a)(2)(C)(i) and (ii). When
Plaintiffs

responded

insisting

that

their

designation

fully

complied with the Rule, Defendants highlighted the absence of any
indication of the subject matter of the testimony to be presented
and of a summary of those opinions (#16).

In reply, Plaintiffs

then conceded that Deeds would only be used as a rebuttal witness
(#18, ¶ 2). Defendants next filed their second motion for summary
judgment seeking judgment as a matter of law on the grounds that
Plaintiffs failed to designate a liability expert witness to

-24-

satisfy their prima facie burden of proof.

#22.

In its Opinion

and Order of October 11, 2016 (#38), the Court observed that no
matter whatever manner the Plaintiffs pleaded their claims, i.e.,
strict liability, negligence, res ipsa loquitur, or breach of
warranty, all of them were product liability claims that required
expert witness opinion testimony.

After reviewing Defendants’

second motion for summary judgment, the Court gave Plaintiffs the
opportunity to provide an explanation of why they did not satisfy
Rule 26's requirements regarding these two non-retained expert
witnesses and why they should be allowed to attempt to cure their
failure.

#42 at p. 32.

Nevertheless, even though the scheduling order set April 1,
2016 as the deadline for Plaintiffs to designate expert witnesses,
Plaintiffs still have not identified any liability expert for
their case-in-chief nor moved for leave to name one, but instead
have asserted that their failure to comply was unintentional and
a “good faith attempt to convey the essential information required
by the Rules.”

#45, ¶ 10.

They state they focused on Pham and

treating physician Dr. Sabonghy (also on the List), but not on
Deeds.
Finally Defendants argue that res judicata should bar the
second amended complaint because Plaintiffs have already had their
claims

for

strict

liability,

negligence,

negligent

misrepresentation, respondeat superior, and res ipsa loquitur

-25-

decided on the merits and dismissed based on limitations (#9), on
October 16, 2016.
Second

Amended

They cannot revive their claims through the
Complaint

without

moving

the

reconsideration to reverse its previous judgment.

Court

for

Not only are

they time-barred, but they are subject to the same requirement for
expert testimony as the breach of warranty claims.

Nissan Motor

Co. Ltd. v. Armstrong, 145 S.W. 3d 131, 137 (Tex. 2004).
Plaintiffs’ Response (#51) to #46
Challenging what Plaintiffs say is an untimely objection to
the designation of Pham as an expert witness and to Defendants’
attempt to use their reply to a nonexistent motion, in addition
to their objection to Pham’s declaration17 and any conversation
17

In his deposition, Pham claims he is not an expert in
the appliances at issue here:
While I am aware of the facts surrounding my removal
and installation of an evaporator pan, my knowledge
regarding the claims made by the Deeds ends there. I
am not an expert in the design, manufacturing, or
marketing of refrigerators and cannot offer opinions
about such topics. In particular, although I did
discover the cracked evaporator pan in the
refrigerator, I cannot offer and do not have any
opinions as to when, how, or why it cracked, the
materials used in connection with its manufacture, or
anything other than the facts I observed when I was at
the residence of the Deeds family.
Moreover, I do not have any special skills or training
on the design, manufacturing, or marketing of
refrigerators generally or evaporator pans
specifically. While I have knowledge of some factual
observations as set forth above, I am not qualified as
an expert nor do I feel competent to offer expert
opinion testimony. . . .
-26-

Plaintiffs’

counsel

had

with

Pham,

Plaintiffs

request

an

opportunity to depose Pham before any further court action so they
can

challenge

the

veracity

Declaration (#46, Ex. A).

of

statements

made

in

Pham’s

Plaintiffs point out that Defendants

have assumed that Mr. Jefferson knew Pham worked for Sears has no
basis in fact.

They further assert that Mr. Jefferson has never

been adjudged to have violated a Texas Disciplinary Rule of
Professional Conduct in over 30 years of practicing law, and he
was a former State District Judge.
Plaintiffs’ Motion for Reconsideration (#50) of #38
Standard of Review
Although

the

Federal

Rules

of

Civil

Procedure

do

not

When he was subpoenaed at his place of employment to appear for a
deposition in this case, telling him to contact Plaintiffs’
counsel to discuss the case, he stated that “[a]t no time did
Mr. Jefferson tell me he was prohibited from speaking to me”:
I contacted Mr. Jefferson and he proceeded to discuss
the case with me generally, as well as asking me
specific questions about what I saw and did while at
the Deeds’ residence, and what I told them when I was
there. At no time did Mr. Jefferson ask me whether I
had an attorney or whether I had obtained permission
from Sears or its attorney to speak with him without an
attorney present. At no time did Mr Jefferson tell be
he was prohibited from speaking with me.
It was not until I spoke with the attorneys for Sears
that I learned that Mr. Jefferson was prohibited from
speaking to me on the substance of the lawsuit by the
rules that govern attorney conduct in the State of
Texas. I learned that, since it appeared that Mr.
Jefferson knew I was a current employee of Sears, he
should have arranged to speak with me through the
attorneys who represented Sears. . . .
-27-

recognize a general motion for reconsideration, courts address
such motions under Rule 54(b) for interlocutory orders or under
Rules 59(e) (a motion to alter or amend) and 60(b) (a motion for
relief from

final judgments).

Dos Santos v. Bell Helicopter

Textron, Inc. Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009),
citing Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir.
1991); Cressionnie v. Hample, 184 Fed. Appx. 366, 369 (5th Cir.
June 6, 2006 (If a motion for reconsideration “challenges the
prior judgment on the merits, we treat it as a motion to alter or
amend judgment under Rule 59(e) or a motion for relief from
judgment under Rule 60). The Court’s October 11, 2016 Opinion and
Order of Dismissal was an interlocutory order, leaving the breach
of warranty claims pending.
Federal Rule of Civil Procedure 54(b)(“Judgment on Multiple
Claims

or

Involving

completely

clear,

Multiple

appears

to

Parties”),
govern

the

which,

although

reconsideration

not
of

interlocutory orders18 and provides,
When an action presents more than one claim
for relief--whether as a claim, counterclaim,
crossclaim, or third-party claim--or when
multiple parties are involved, the court may
direct entry of a final judgment as to one or
more, but fewer than all, claims or parties
only if the court expressly determines that
there is no just reason for delay.
18

Merrell v. Hartford, Civ. A. No. C-08-348, 2009 WL
3063323, at *1 (S.D. Tex. Sept. 22, 2009); Barzelis v. Flagstar
Bank, Action No. 4:12-CV-611-Y, 2013 WL 12126117, at *1 (N.D.
Tex. May 31, 2013).
-28-

Otherwise, any order or other decision,
however designated, that adjudicates fewer
than all the claims or the rights and
liabilities of fewer than all the parties
does not end the action as to any of the
claims or parties and may be revised at any
time before the entry of a judgment
adjudicating all the claims and all the
parties’ rights and liabilities.
It is within the discretion of the court whether to grant a motion
to reconsider an interlocutory order.

Merrell, 2009 WL 3063323,

at *1, citing Viasek v. Wal-Mart Stores, Inc., No. H-07-0386, 2008
WL 167082, at *1 (S.D. Tex. Jan. 16, 2008)(“Motions to reconsider
interlocutory orders are left to the court’s discretion so long
as

not

filed

unreasonably

late.”).

Nevertheless,

tactics to avoid trial should not be encouraged.”

“delaying

Martinez v.

Bohls Equip. Co., No. SA-04-CA-0120-XR, 2005 WL 1712214, at *1
(W.D. Tex. July 18, 2005).19

A district court “possesses the

inherent procedural power to reconsider, rescind, or modify an
interlocutory order for cause seen by it to be sufficient.”
Melancon

v.

Texaco,

Inc.,

659

F.2d

551,

553

(5th

Cir.

1981).Substance of the Motion
Plaintiffs contend there is a question of fact about their
exercise

of

due

diligence

in

serving

19

Defendants

with

their

In Martinez, the defendant, who filed the motion for
reconsideration, had been on notice for more than four months
about the genuine issues of material fact that the Court had
found remained in the case, but filed a motion for
reconsideration only a month before the case was set to go
forward for trial. The Court held that the motion was filed
unreasonably late.
-29-

Original Petition.

Moreover the cases cited by Defendants are

distinguishable on their facts from the instant action and the
information Defendants provided was false and misleading, insist
Plaintiffs.

First they refer to Plaintiffs’ Exhibit A to #50,

their requested citation on October 17, 2014 with their petition,
which

they

argue

shows

their

“intent

to

obtain

service

on

Defendants at that time; although the civil request form was
generated in Plaintiffs’ counsel’s office, it was not filed with
the petition.”

They then explain that “at that time Plaintiffs’

counsel had a temporary secretary who was apparently unfamiliar
with the District Court’s filing procedures and the citations
though issued were held for pickup in the District Court’s office.
The fact that the civil request form was prepared and citation was
requested [five months late] is more that [a] scintilla of
evidence that Plaintiffs intended to obtain service of process at
the time suit was filed and is some evidence of due process.” #50
at p. 2.
The Court disagrees, finds that intent does not equal action,
and the failure to follow up and check on the matter is evidence
of negligence and a lack of diligence.

Moreover Plaintiffs

concede that their firm did not pay the required fee of $90, but
they claim the statement that they paid was not “false” because
they did pay a fee of $55.00, which Plaintiffs assert is not
“evidence of a lack of due diligence, but rather, evidence of

-30-

confusion and/or lack of knowledge on the part of Plaintiffs’
counsel’s office to know the accurate fee amount for service to
the Secretary of State.

The evidence at minimum if viewed in the

light most favorable to the Plaintiffs, is that Plaintiffs were
attempting to get service of citation effectuated.” #50 at p. 4.
Plaintiffs continued, when counsel became aware of the failure to
file the civil request form on March 25, 2015, Plaintiffs filed
with the District Clerk a civil process request form, copy
attached as Exhibit B.

Plaintiffs attempt to challenge the

Court’s

at

statement

(#38

p.9)

that

“the

evidence

shows

[Plaintiffs] did nothing from October 17, 2014 to March 25, 2016,
to effectuate service.”
The

Court

is

not

persuaded

by

Plaintiffs’

arguments.

Ironically more facts demonstrating Plaintiffs’ lack of diligence
than

the

exercise

of

it

are

provided

in

the

affidavit

of

Plaintiffs’ counsel’s legal secretary at the time, Rae N. Reece
(Exhibit C to #50):
5. “. . . . The Citations were prepared and held ‘For
Attorney Pickup’ instead of forwarding them to the
Secretary of State for service because the correct fee
had not been paid. When the thirty days had passed and
no one from our office picked up the Citations from the
Clerk’s office, they were destroyed.
I cannot
ascertain if anyone here in the office was ever
notified to pick up those Citations.
6.
“In March of 2015, when [counsel] learned that
defendants in this matter had not been served, he asked
his then secretary, LaTonya McPherson, to handle this
and get the defendants served. She refiled the Civil
Process Request form on March 25, 2015, requesting
-31-

service by Certified Mail through the Secretary of
State. Again, sufficient fees for this service were
not paid. She paid the fee for issuance of Citation
for service by Constable, but not the bulk of the fees
required for Secretary of State/Certified Mail. This
time the citations were prepared on April 2, 2015, and
then mailed to the attorney since the correct fee was
not paid. Those Citations were found loose in the file
with no indication of any further action having been
taken to have them served.
7.
“On June 17, 2015, I refiled the Civil Process
Request Form requesting issuance of Citations and
service by the Secretary of State by Certified Mail.
With the help of the Clerk of the 164th and the Civil
Intake Clerk, and my co-worker, Tina Fritsche, I paid
the correct fees for this service.
The filing was
accepted by the Clerk on that same day.
8. “I checked the status of the Citations a few times
and couldn’t get any information. On June 29, 2015, I
again checked status with the Civil Intake clerk,
‘Iris.’ I reiterated the entire scenario to Iris and
asked for her help in getting these citations forwarded
to the Secretary of State for service. She said they
had not been issued and that the file was ‘locked’ by
the manager, ‘Ruth.’ Iris verified that I had in fact
paid the correct fee to achieve service through the
Secretary of State.
Ruth and the clerk who was
supposed to work on this matter were both out of the
office.
. . . .
10.
“On July 8, 2015, I called the Civil Intake
Clerk’s office and spoke with ‘Wanda Chambers.’ She
checked the status of the file and said that nothing
had been done on this matter yet. After explaining the
entire scenario, she offered to process the Civil
Request forms at once and call me when she had done so.
Fifteen minutes later, she called and said the
Citations were on their way to the Secretary of State
for service by Certified Mail.
11. “I checked the website on July 17, 2015, and saw
activity concerning the service on the defendants. I
called to verify that service had been achieved-citations were served on July 15, 2015, and the Return
-32-

of Service filed with the Harris County Clerk’s office
on July 15, 2015. I printed copies of the proof of
service for the file.
I learned later, this was
service upon the Secretary of State only-–not on
defendants.
12. “On July 20, 2015, I received two letters from the
Secretary of State stating that the fees of $55 per
citation for their service upon the defendants had not
been paid. I called the Harris County Civil Process
Clerk to ask what we had paid for online with the
filing service that stated it was ‘for service by
certified mail?’
13. “I requested a firm check to cover the additional
service fees and the Secretary of State served the
defendants in late July, 2015, by certified mail. . .
.“
Ms. Rae’s account portrays some fault for all the delay on the
Clerk’s office, but it is clear that there was a substantial lack
of due diligence on the part of counsel, who is ultimately
responsible for insuring that his client’s rights are timely,
efficiently,

and

correctly

processed.

Effecting

service

of

process is the most basic and routine of services performed by
counsel and lack of diligent supervision over his firm’s staff in
performing them is inexcusable, especially in light of how much
time had passed since Judith Deed’s injury occurred and counsel’s
procrastination in even filing the initial petition.

Given all

the other instances of Plaintiffs’ failure to perform with due
diligence, and the fact that it would be so simple and easy to ask
the Clerk when requesting service and paying, the Court rejects
their arguments.
Defendants’ Response (#52) to #51
-33-

Defendants state that many of the same policy considerations
that apply under Rule 59(e) to final orders or judgments apply to
motions for reconsideration of interlocutory orders under Rule
54(b).

eTool

Development,

Inc.

v.

National

Semiconductor

Corp.,881 F. Supp. 2d 745, 748 (E.D. Tex. 2012).
Some of the considerations underlying Rules 59 and 60 inform
the Court’s review under Rule 54(b), including that motions to
reconsider are not the proper vehicle for rehashing old arguments
or raising arguments that could have been presented previously.
Barzelis, 2013 WL 12126117, at *1.

Rule 54(b) allows the court

in its discretion “to reconsider and revise it prior orders
without the timing restrictions and jurisdictional constraints
that limit the court’s authority to amend a judgment under Rules
59(e) of 60(b),”

Motion Games, LLC c. Nintendo Co., Ltd., 2014

WL 11619164m at *2 (E.D. Tex. Sept. 23, 2014), citing eTool
Development, Inc. v. National Semiconductor Corp.,881 F. Supp. 2d
745, 748 (E.D. Tex. 2012); Saqui v. Pride Cent. Am., LLC, 595 F.3d
206, 210-11 (5th Cir. 2010).
arguments

for

Defendants observe that Plaintiffs’

reconsideration

should

be

given

only

when

a

plaintiff establishes “(1) an intervening change in controlling
law;

(2)

the

availability

of

new

evidence

not

previously

available; or (3) the need to correct a clear error of law or
prevent manifest injustice.” In re Benjamin Moore & Co., 318 F.3d
626, 629 (5th Cir. 2002).

Plaintiffs have failed to establish any

-34-

of the three requirements.

Plaintiffs failed to submit any

controverting evidence to the Court to establish diligence in
serving Defendants when they filed their response to Defendants’
motion

for

summary

judgment.

Plaintiffs

had

significant

opportunity to present Ms. Reece’s affidavit before the Court
issued its opinion.

It cannot show personal knowledge of that

period before she began working for Plaintiffs’ counsel. Moreover
the affidavit is filled with hearsay to which Defendants’ object,
states that she did not begin to work for Plaintiffs’ counsel
until June 11, 2015, more that two months after Plaintiffs rerequested service and eight months after the lawsuit was filed,
and while it may reflect “a modicum of diligence for a twentyeight day period between June 17, 2015 and July 15, 2015, it
ignores the utter lack of diligence (other that filing a civil
process request form on March 25, 2015).
The

pleadings

state

that

Plaintiffs

did

not

exercise

diligence for almost nine months after they filed their lawsuit.
Furthermore they did not exercise due diligence from the issuance
of citation on October 17, 2014 until they again requested service
on March 25, 2015.

Subsequently they failed to effect service of

citation after the citations were ready on April 2, 2015 (#9-2 and
9-3).
In

sum,

“[a]

motion

to

reconsider

may

not

be

used

to

relitigate old matters, or raise arguments or present evidence

-35-

that could have been raised before.”

T-M Vacuum Products, Inc.

v. TAISC, Inc., No. H-07-4108, 2008 WL 2785636, at *2 (S.D. Tex.
July 16, 2008).
Court’s Decision
The Court agrees that Plaintiffs must have an expert witness
for the defective product claims.

As the Texas Supreme Court

recently stated in Gharda, 464 S.W. 3d at 348,
“Expert testimony is required when an issue involves
matters beyond jurors’ common understanding.”
Mack
Trucks, Inc. v. Tamez, 206 S.W. 3d 572, 583 (Tex.
2006)(citation omitted).
Proof other than expert
testimony will support a jury finding only when the
jurors’ common understanding and experience will allow
them to make that finding with reasonable probability.
Id. We have consistently required expert testimony and
objective proof to support a jury finding that a
product defect caused the plaintiff’s condition. See,
e.g., id. at 582-83 . . . .
The Court does not have sufficient information to determine
whether there might be any fact issues that would prevent the
Court from determining as a matter of law that this case should
be dismissed for a failure to properly designate an appropriate
expert witness.
Nevertheless there is another, egregious problem here besides
the absence of expert witnesses:

Plaintiffs’ persistent and

unreasonable dilatoriness throughout this litigation that would
not have been practiced by an ordinarily prudent person under the
same or similar circumstances to toll the running of a statutes
of limitations and to preserve this suit from being time-barred.
-36-

Judith Deeds fell and injured herself on October 21, 2012,
when the original petition’s claims accrued.

After waiting to

file their petition until October 17, 2014, just four days before
the two-year limitations’ deadline, Plaintiffs’ additional ninemonth delay in procuring the issuance and service of process made
[Plaintiffs] non-diligent as a matter of law.
182.

Rigo, 458 S.W. 2d

Thus the two-year statutes of limitations on the claims

asserted in the original petition expired almost nine months
before service on the Defendants was effected.

Therefore nine-

month gap between the filing and service of process warrants
dismissal of those claims for lack of diligence as a matter of
law.

See pp. 10-13 of this Opinion and Order.
Plaintiffs may object that Magistrate Judge Stacy granted

them leave to file an amended complaint on June 20, 2016 (#17 and
24), and that they filed their amended complaint as of that date
(#25), before the Court granted Defendants’ first motion for
summary judgment on limitations.
that

the

warranty

claims

Therefore they might also argue

with

their

four-year

statutes

of

limitations were already pending before the claims for negligence,
negligent misrepresentation, and strict liability were dismissed
and therefore still remain pending.
On June 20, 2016, approaching four years after Judith Deeds’
fall and just four months before trial was scheduled, despite
objections

from

Defendants,

which

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included

the

statute

of

limitations

bar

addressed

in

that

first

motion

for

summary

judgment, Judge Stacy granted their motion for leave to amend to
add the three new breach of warranty claims under Fed. Rule Civ.
P. 15(a), which states in relevant part,
(a)

Amendments Before Trial.
(1) Amending as a Matter of Course. A party may
amend its pleading as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days
after service of a responsive pleading or 21
days after service of a motion under Rule
12(b), (e), or (f) whichever is earlier.
(2) Other Amendments. In all other cases, a party
may amend its pleading only with the opposing
party’s written consent or the court’s leave. The
court should freely give leave when justice so
requires.

A court has discretion in deciding whether to grant leave to
amend.

Foman v. Davis, 371 U.S. 178, 181 (1962).

Since the

language of Federal Rule of Civil Procedure 15(a) “‘evinces a bias
in favor of granting leave to amend,” the court must find a
“substantial reason” to deny such a request.

Ambulatory Infusion

Therapy Specialists, Inc. v. Aetna Life Ins. Co., Civ. A. No. H05-4389, 2006 WL 2521411, *3 (S.D. Tex. Aug. 29, 2006), quoting
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004), and Mayeaux
v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.
2004). Nevertheless leave to amend “is not automatic.” Matagorda
Ventures, Inc. v. Travelers Lloyds Ins. Co., 203 F. Supp. 2d 704,
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718 (S.D. Tex. 2000), citing Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 598 (5th Cir. 1981).

The court should deny leave to

amend if it determines that “the proposed change clearly is
frivolous

or

advances

a

claim

insufficient on its face . . . .”

or

defense

that

is

legally

6 Charles A. Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed.
1990).
While Rule 15(a) does not establish a time limit for filing
a motion for leave to amend, “‘at some point, time delay on the
part of a plaintiff can be procedurally fatal.’”

Smith v. EMC

Corp., 393 F.3d at 595, quoting Whitaker v. City of Houston, 963
F.2d 831, 836 (5th Cir. 1992), in turn quoting Gregory v. Mitchell,
634 F.2d 199, 203 (5th Cir. 1981).

If there is substantial delay,

the plaintiff bears the burden of demonstrating that it was due
to oversight, inadvertence or excusable neglect.

Id., citing

Gregory, 634 F.2d 203. Factors the court may consider in deciding
whether to allow the amendment include “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure

deficiencies

by

amendments

previously

allowed,

undue

prejudice to the opposing party, and futility of the amendment.”
In re Southmark Corp., 88 F.3d 311, 314-15 (5th Cir. 1996).
Once a scheduling order is entered and the deadline for
amending pleadings is past, as was the case here, Rule 16(b)
governs rather than Rule 15(a). The scheduling order (#6) in this

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case set a deadline of January 15, 2016 for amended pleadings;
Plaintiffs did not file their motion for leave to amend (#17)
until May 19, 2016.

Thus Magistrate Judge Stacy should have

applied Rule 16(b) in deciding whether to grant Plaintiffs’ motion
for leave to amend.
“Once a scheduling order deadline to amend a pleading has
expired, the party seeking leave to amend is effectively asking
the court for leave to amend both the scheduling order and the
pleading.”

Escobar v. City of Houston, Civ. A. No. 04-1945, 2007

WL 2003, at *1 (S.D. Tex. Feb. 11, 2007)

In contrast to Rule 15's

“freely given” standard for amendment, Rule 16(b)(4) mandates that
“[a] schedule may be modified only for good cause and with the
judge’s consent.”

Good cause requires a “party seeking relief

to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.”

Southwestern Bell

Telephone Bell Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.
2003). Plaintiffs not only failed to make such a showing, but did
not even try.
diligence

of

The “good cause” standard concentrates on the
the

party

requesting

the

Court

to

modify

the

schedule. Mobius Risk Group, LLC v. Global Clean Energy Holdings,
Civ. A. No. H-10-1708, 2011 WL 2193294, at *3 (S.D. Tex. June 6,
2011), citing Parker v. Columbia Pictures Industries, 204 F.3d
326, 340 (2d Cir. 2000)(“[W]e agree with these courts that a
finding of ‘good cause’ depends on the diligence of the moving

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party.”), and In re Milk Products Antitrust Litig., 195 F.3d 430,
437 (8th Cir. 1999)
applies four factors:

To decide if there is good cause, the court
(1) an explanation for plaintiff’s failure

to move timely for leave to amend; (2) the importance of the
amendment; (3) possible prejudice in permitting the amendment; and
(4) whether a continuance would

serve to cure the prejudice

Id.

The record reflects that Plaintiffs unduly delayed (1) in
filing their complaint until four days before the statute of
limitations expired, (2) in effecting service of process for
almost another nine months, and (3) in filing their motion for
leave to amend after the deadline for amending.

In fact, the

timing strongly suggest they filed their motion for leave to amend
only after Defendants’ first motion for summary judgment alerted
them to the limitations problem in their Original Petition due to
their persistent dilatoriness and motivated them to attempt to
circumvent it surreptitiously.

Therefore not only is Plaintiffs’

explanation for its constant procrastination unreasonable, but the
Court finds that Defendants would be prejudiced by allowing the
amendment after they had presented a solid case of a limitations
bar to their original complaint in their first motion for summary
judgment. Plaintiffs’ consistent and persistent delays in this
litigation constitute anything but “good cause.”

The Fifth

Circuit has affirmed the denial of leave to amend when the movant
has “engaged in undue delay.” Goldstein v. MCI Worldcom, 340 F.3d

-41-

238, 254 (5th Cir. 2003), citing Little v. Liquid Air Corp., 952
F.2d 841, 846 (5th Cir. 1992).
Moreover,

in

this

litigation

Plaintiffs

have

filed

an

Original Petition (#1, Ex. A), and Amended Complaint (#25), and
a court-ordered Second Amended Complaint (#44), although while
being challenged by motions for summary judgment, The Court finds
that three bites of the apple constitute sufficient opportunity
to plead a cause of action, and that Plaintiffs cannot cure their
lack of diligence throughout this action.
Accordingly, for the reasons stated above, the Court
ORDERS that
(1) the Court reaffirms its grant of Defendants’ first motion for
summary

judgment

dismissing

Plaintiffs’

claims

for

strict

liability, negligence, the related evidentiary rule of res ipsa
loquitur, negligent misrepresentation, and respondeat superior on
limitations grounds;
(2)

the

Court

VACATES

Magistrate

Judge

Stacy’s

order

(#24)

granting leave to Plaintiffs to file a first amended complaint and
strikes that complaint for lack of diligence as a matter of law;
(3) the Court DENIES Plaintiffs’ motion for reconsideration (#50);
and
(4) the Court DENIES Plaintiffs’ motion for oral hearing (#54).
Accordingly this case is DISMISSED.

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SIGNED at Houston, Texas, this

10th

day of

August , 2016.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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