United States District Court, S.D. Indiana, Indianapolis Division
BOBBY DON BOWERSOCK, CHARLOTTE ROBINSON as Co-Personal Representatives of the Estate of Georgia J. Bowersock, deceased, and MARK BOWERSOCK Individually, Plaintiffs,
DAVOL, INC., and C.R. BARD, INC., Defendants.
ENTRY ON PLAINTIFFS' MOTION TO ALTER OR AMEND
J. McKINNEY, JUDGE
matter is before the Court on Plaintiffs', Bobby Don
Bowersock, Charlotte Robinson, and Mark Bowersock
(collectively, “Plaintiffs”), Motion to Alter or
Amend Judgment pursuant to Federal Rule of Civil Procedure
59(e) (“Rule 59(e)). Dkt. 77. Plaintiffs request that
this Court alter and amend its Order granting
Defendants', Davol, Inc. and C.R. Bard, Inc.
(collectively, “Bard”), Motion for Summary
Judgment. Dkt. 74.
purpose of a motion to alter or amend judgment under Rule
59(e) is to have the Court reconsider matters “properly
encompassed in a decision on the merits.” Osterneck
v. Ernst & Whinney, 489 U.S. 169, 174 (1988). To
receive relief under Rule 59(e), the moving party “must
clearly establish (1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence
precluded entry of Judgment.” Edgewood Manor
Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761,
770 (7th Cir. 2013). A “manifest error” means
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(citation omitted). Rule 59(e) does not permit the rehashing
of previously rejected arguments. See id. Relief
through a Rule 59(e) motion for reconsideration is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008).
claim that the Court erred in granting Bard's Motion for
Summary Judgment when it excluded the expert testimony of Dr.
Stephen Ferzoco and Dr. William A. Hyman, which in turn
precluded the Plaintiffs' ability to demonstrate
causation in this matter. Plaintiffs also contend that the
Court improperly limited Dr. Roland Kohr's testimony to
only those opinions made in conjunction with the autopsy and
exhumation of Georgia Bowersock's body.
Plaintiffs allege that the Court erred in finding Dr.
Ferzoco's “nidus” theory was unreliable based
on the fact that it had not been subject to peer review or
presentation in a formal setting. The Plaintiffs provide no
citation to the Court's Order for this proposition and
simply argue that the Court overemphasized this factor in its
Daubert analysis. See dkt. 78 at 5. But
this assertion fails to consider the whole of the Court's
analysis, in which it evaluated numerous factors to determine
the reliability of Dr. Ferzoco's causation testimony. The
Court not only considered the lack of peer review, but also:
(1) the fact that none of the symptoms described by Dr.
Ferzoco are present in Georgia Bowersock's medical
records or the autopsy report; (2) the theory is not based on
any materials provided in connection with other CK Patch
cases; and (3) the theory is based solely on previous patient
experience. See dkt. 74 at 18. Further, the Court
considered Dr. Ferzoco's knowledge, skill, experience,
education, and training in this field, but found that Dr.
Ferzoco's substantial expertise in this area lacked
specificity and could not be found reliable in this case.
Id. at 19-21. Thus, it is clear that the lack of
peer review alone was not the sole basis to conclude Dr.
Ferzoco's causation opinion is unreliable.
the Plaintiffs claim that Dr. Ferzoco's causation opinion
was based on a differential diagnosis, despite the fact that
he never stated as much in his expert report. Indeed, the
Plaintiffs use the term “differential diagnosis”
for the first time in the instant motion and presented a
post-hoc analysis based on what Dr. Ferzoco “ruled
out” and “ruled in.” The Plaintiffs
argue that Dr. Ferzoco ruled in the CK Patch's failure as
the cause of death and ruled out other causes, including
Court adequately considered Dr. Ferzoco's, now called,
differential diagnosis. The Court stated that while “it
might be said that Dr. Ferzoco utilized the scientific method
in determining bowel involvement based on this second
culture, Dr. Ferzoco is unable to set forth a reliable,
scientific opinion as to how the CK Patch's alleged
buckling caused Georgia's injury.” Id. at
17. See also id. (discussing Dr. Ferzoco's
opinion that “the presence of fecal bacteria in
Georgia's second of three cultures indicate[d] bowel
involvement.”). The Court found lacking Dr.
Ferzoco's theory that buckling led to the alleged bowel
disruption, which was inadequately supported for reasons more
fully stated in the Court's order on summary judgment.
See Id. at pt. IV, B, 1. Thus, Plaintiffs have
failed to set forth a manifest error of fact or law with
regard to the Court's finding on Dr. Ferzoco's
Plaintiffs further argue that the Court erred in excluding
the causation testimony of Dr. Hyman. The Court found that
“Plaintiffs have failed to meet their burden to
establish that Dr. Hyman is qualified to testify as to the
cause of Georgia's death and any such evidence to be
proffered by Dr. Hyman is hereby excluded.” Dkt. 74 at
22. It is unclear what relief the Plaintiffs seek because
they agree that “Dr. Hyman is not being offered to
provide opinions on case specific medical causation.”
Dkt. 78 at 16. The Plaintiffs state that Dr. Hyman is
“providing testimony as an engineering expert offering
the opinion that the Kugel Patch is capable of buckling, and
that such a buckle can create a sharp edge on the
patch.” Dkt. 81 at 5. But, this testimony is irrelevant
to the specific causation issue in this case. Because the
Plaintiffs agree with the Court's exclusion of Dr.
Hyman's opinions with respect to medical causation for
Georgia Bowersock's injuries, see dkt. 74 at 22,
no further analysis on this point is needed.
with respect to Dr. Kohr, the Plaintiffs claim that the
“Court's decision to exclude testimony about any
newly formed opinions beyond those acquired at the time of
the autopsy and exhumation of Georgia Bowersock's body
would result in manifest injustice - specifically presenting
to the jury an incomplete and inaccurate view of his
opinions.” Id. at 6. The Plaintiffs cite no
mistake of law or fact by the Court. Plaintiffs merely
restate Dr. Kohr's deposition testimony and arguments
raised in their opposition to Bard's motion seeking to
exclude his testimony. Rule 59(e) is not a vehicle for