Fisher v. United States of America

Filing 66

ORDER by Judge Benjamin H Settle DENYING 58 Motion for Leave; and DENYING 61 Motion for Reconsideration.(TG)

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ORDER ­ 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

VIVIAN FISHER, individually and as Personal Representative of the Estate of HOWARD LEROY FISHER, deceased, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

CASE NO. C09-5146BHS ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO SUBMIT ADDITIONAL ARGUMENT AND MOTION FOR RECONSIDERATION

This matter comes before the Court on Defendant United States of America's ("Government") motion for leave to submit additional argument (Dkt. 58) and motion for reconsideration (Dkt. 61) of the Court's order granting Plaintiff's motion to exclude expert testimony (Dkt. 57). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies the Government's motions for the reasons stated herein. I. FACTUAL AND PROCEDURAL HISTORY For a more complete factual background, see the Court's findings of fact and conclusions of law and order (Dkt. 60). At the conclusion of the bench trial held in this action the Court asked the parties to submit additional briefing regarding jury verdicts and awards in cases similar to this one. Dkt. 49. The parties submitted simultaneous briefing

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on the issue on September 24, 2010. Dkts. 53 & 54. On September 30, 2010, the Government submitted a motion for leave to submit additional argument in response to Plaintiffs' briefing on jury verdicts and awards. Dkt. 58. On October 1, 2010, counsel for Plaintiffs filed a response in opposition to the Government's motion for leave. Dkt. 59. Also on October 1, 2010, the Court issued its findings of fact and conclusions of law and order awarding damages to Plaintiffs in the amount of $1.9 million. Dkt. 60. On October 13, 2010, the Government replied to Plaintiffs' response to the motion for leave. Dkt. 62. On September 28, 2010, the Court issued an order granting Plaintiffs' motion to exclude the testimony of the Government's expert witness Dr. Scott Kush. Dkt. 57. On October 12, 2010, the Government filed a motion for reconsideration of the Court's order granting Plaintiffs' motion to exclude. Dkt. 61. II. DISCUSSION A. Motion for Leave to Submit Additional Argument At the conclusion of the trial in this action on September 15, 2010, the Court ordered the parties to file additional briefing and examples of awards and jury verdicts rendered in similar cases. See Dkt. 49. The Court intentionally requested that the parties submit their briefing simultaneously and took into account the arguments made by both parties in its order awarding damages. See Dkt. 60. Therefore, the Court concludes that the Government is not entitled to additional argument regarding the awards and jury verdicts submitted by Plaintiffs and denies its motion for leave to submit additional argument. B. Motion for Reconsideration Motions for reconsideration are governed by Local Rule CR 7(h), which provides as follows: Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior

ORDER ­ 2

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ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. Local Rule CR 7(h)(1). The Court's order granting Plaintiffs' motion to exclude the expert testimony of Dr. Scott Kush does not represent manifest error. The Court also concludes that the Government's motion for reconsideration effectively restates the same arguments made in bringing its response to Plaintiffs' motion to exclude with the exception of the additional declarations of medical doctors commenting on the issue of Dr. Kush's methodology being generally accepted in the scientific community. Dkt. 61. However, the Government fails to present new facts or legal authority that could not have been brought to the Court's attention prior to this motion. Because the Government has not adequately met its burden under CR 7(h)(1), the Court denies its motion for reconsideration. III. ORDER Therefore, it is hereby ORDERED that the Government's motion for leave to filed additional argument (Dkt. 58) and motion for reconsideration (Dkt. 61) are DENIED for the reasons stated herein. DATED this 26th day of October 2010.

A

BENJAMIN H. SETTLE United States District Judge

ORDER ­ 3