Aguayo-Becerra v. Ash Grove Cement Company et al

Filing 102

ORDER denying Plaintiff's 100 Motion for Reconsideration signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SALOME AGUAYO-BECERRA,

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Plaintiff,

ORDER

v.

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CASE NO. C15-1561-JCC

FLSMIDTH, INC., a Delaware Company,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion for reconsideration (Dkt. No.

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100) of this Court’s summary judgment order (Dkt. No. 98). Having thoroughly considered the

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motion and the relevant record, the Court hereby DENIES the motion for the reasons explained

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herein.

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I.

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“Motions for reconsideration are disfavored. The Court will ordinarily deny such motions

LEGAL STANDARD

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in the absence of a showing of manifest error in the prior ruling or a showing of new facts or

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legal authority which could not have been brought to its attention earlier with reasonable

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diligence.” Local Rule 7(h)(1). Motions for reconsideration are not the place for parties to make

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new arguments or to ask the Court to rethink what it has already thought. Richard v. Kelsey,

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2009, slip op. at *1 (W.D. Wash. Nov. 9, 2009).

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II.

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ANALYSIS
A. Plaintiff’s Failure to Warn Claim

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Plaintiff first argues the Court should reconsider its grant of summary judgment because

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it overlooked his failure to warn claim. (Dkt. No. 100 at 2.) The Court addressed this claim, but

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did not find it necessary to reach Plaintiff’s consumer expectations argument because Plaintiff

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failed to present “significant probative evidence tending to support” the allegation that the

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subject port and chute existed when Defendant installed the conveyor or an argument that the

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product was otherwise “not reasonably safe” at that time of manufacture. Smolen v. Deloitte,

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Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990); Wash. Rev. Code § 7.72.030(1) (the

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Washington Product Liability Act (“WPLA”) imposes liability on a manufacturer where, due to

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inadequate warnings, the product was not reasonably safe when manufactured) (emphasis

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added).

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Furthermore, the Court’s grant of summary judgment on this claim was not based, as

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Plaintiff suggests, on the foreseeability of Plaintiff’s injury. (See Dkt. No. 100 at 2–3) (citing

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cases holding that foreseeability is not an element of a failure to warn claim). Under both

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common law principles and the WPLA, strict liability applies only where a duty is first owed

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“based on characteristics of the manufacturer’s own product.” Macias v. Saverhagen Holdings,

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Inc., 282 P.3d 1069, 1074 (Wash. 2012). The Court found that Plaintiff did not present evidence

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tending to support its allegation that the port was a characteristic of Defendant’s product

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sufficient to establish such a duty. Finally, at summary judgment Plaintiff alleged only

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insufficient warning at the time of injury, not at the time of manufacture. (See Dkt. No. 92 at 21.)

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The Court finds no basis to reconsider its decision on Plaintiff’s failure to warn claim.

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B. Application of the Standard for Summary Judgment
Plaintiff’s claim that the Court misapprehends the summary judgment standard is largely

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an argument that the summary judgment standard is unconstitutional. (Dkt. No. 100 at 5–7)

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(citing academic articles that question the modern practice of summary judgment). It is not the
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place of this Court to re-write the standard for summary judgment, but to apply it as it exists,

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with guidance from higher courts.

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Plaintiff further asserts that the Court misapplied the standard because it did not ask

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“whether there was a genuine issue of material fact.” (Dkt. No. 100 at 9.) On summary judgment,

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“an issue is genuine only if the evidence is sufficient for a reasonable jury to return a verdict for

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the nonmoving party.” Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010) (citing

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The relevant question is “whether

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[the party] upon whom the burden of proof rests is entitled to present its case to the jury.” Triton

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Energy Corp., 68 F.3d at 1221. To succeed before a jury, Plaintiff must establish by a

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preponderance of the evidence that the conveyor was installed by Defendant with the subject

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port. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The mere existence of a

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scintilla of evidence in support of the non-moving party’s position is not sufficient” to overcome

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summary judgment. Anderson, 477 U.S. at 252.

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In Plaintiff’s view, a genuine issue of material fact exists because parties disagree on who

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installed the subject port. (Dkt. No. 100 at 6.) As the Ninth Circuit held in Triton Energy Corp. v.

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Square D Co., Plaintiff is correct only “in a limited sense.” 68 F.3d 1216, 1221 (9th Cir. 1995).

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In Triton, the Ninth Circuit upheld a grant of summary judgment where expert opinions differed

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regarding the condition of a product when it left defendant’s plant, but where evidence

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supporting the opinions was insufficient to create a triable issue of fact. Similarly, Plaintiff here

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failed to “[establish] that its version of the facts is more probable than not.” Id. Despite the

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parties’ dispute of fact over the providence of the port, the Court finds no manifest error in

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requiring Plaintiff to also show a genuine issue for trial.

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To determine whether Plaintiff met this burden, the Court looked to Plaintiff’s

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circumstantial evidence and resulting “permissible inferences.” Triton Energy Corp., 68 F.3d at

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1221. Plaintiff is correct that the Court must draw all inferences in its favor as the nonmoving

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party. (See Dkt. No. 100 at 8.) But “such inferences are limited to those upon which a reasonable
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jury might return a verdict” and must be based on underlying evidence of “sufficient quantum or

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quality.” Triton Energy Corp., 68 F.3d at 1220–21. The Court found Plaintiff’s proffer of

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evidence insufficient to “show that it could demonstrate to a jury by a preponderance of the

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evidence that its loss ought to be shifted to [Defendant].” Id. at 1222. Plaintiff’s motion for

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reconsideration does not identify manifest error, but merely asks the Court to “rethink what it

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already thought.” Richard, 2009 WL 3762844 at *1. The Court will not grant reconsideration on

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this basis.

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To the extent that Plaintiff raises an argument that the pneumatic sampling system that
Defendant installed was defective when installed, this is a new argument not properly raised on a
motion for reconsideration. (See Dkt. No. 100 at 9); Richard, 2009 WL 3762844 at *1.
C. Defendant’s Motion to Strike the Declaration of Alan Werner
Plaintiff also asks the Court to reconsider its decision to strike the November 13, 2017

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declaration of its expert, Alan Werner. (Dkt. No. 100 at 11.) Plaintiff argues this declaration was

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intended to rebut allegations in Defendant’s motion and was thus timely under Federal Rule of

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Civil Procedure 26(a)(2)(D)(ii), even though presented after the close of discovery. (Id.)

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The Court already rejected this argument in its ruling on Defendant’s motion to strike.

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(See Dkt. No. 98 at 2–3.) Under Rule 37(c)(1), it is within the Court's discretion to exclude

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expert testimony on late-disclosed subject matter. Fed. R. Civ. P. 37(c)(1); Olson v. Uehara, No.

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C13-0782-RSM, slip op. at *3 (W.D. Wash. Nov. 4, 2014). “The supplementation rule is not

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intended to allow parties to add new opinions to an expert disclosure based on evidence that was

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available to them at the time the initial disclosure was due.” Id. at *2. Plaintiff contends it did not

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fail to disclose “anything along the way.” (Dkt. No. 100 at 11.) Plaintiff reasons that Werner’s

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declaration was based on materials in the summary judgment motion and an October 4, 2017

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inspection of Ash Grove, and that the “facts observable in the inspection were not a secret.” (Id.)

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However, Werner’s expert opinion on these facts was “secret” until its late disclosure. Therefore,

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Plaintiff fails to show manifest error meriting reconsideration of Defendant’s motion to strike.
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III.

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For the reasons stated herein, Plaintiff’s motion for reconsideration (Dkt. No. 100) is

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CONCLUSION

DENIED.
DATED this 27th day of December 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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