United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
case involves claims under the Indiana Products Liability Act
made by the Donald and Mary Timm against Goodyear Dunlop
Tires and Harley-Davidson. The Timms were involved in a
catastrophic motorcycle accident leading to their severe
injuries. They contend that defects in the tire and
motorcycle were the causes of the accident. I granted summary
judgment in favor of the defendants in this case, Goodyear
Dunlop Tires and Harley-Davidson. [DE 351.] The Timms now
seek reconsideration of that decision pursuant to Federal
Rule of Civil Procedure 59(e), and they also filed a motion
to supplement the record. [DE 353, 354.] For the reasons that
follow, I will deny both of their motions.
for reconsideration are not specifically authorized by the
Federal Rules of Civil Procedure. But courts apply Rule 59(e)
standards to these motions. Martin v. Teusch, 2011
WL 3610619, at *1 (N.D. Ind. Aug. 16, 2011). Rule 59(e)
permits a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence. A manifest error is the
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(internal quotation marks omitted).
59(e) does not allow for the presentation of new evidence
that could have been presented before the judgment was
entered. Obriecht v. Raemisch, 517 F.3d 489, 494
(7th Cir. 2008). What's more, a motion for
reconsideration cannot be used to simply re-litigate issues
that have already been decided. Sigsworth v. City of
Aurora, Ill., 487 F.3d 506, 511-12 (7th Cir. 2007).
Instead, a motion for reconsideration performs a
“valuable function” in cases where the Court has
“patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the
parties, or has made an error not of reasoning but of
apprehension.” Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).
Timms have moved for reconsideration on several bases. First,
they point to “critical facts of the accident as
described by the eyewitness” as supporting the
experts' conclusions that there was a defect in the
subject tire. I don't know whether that's true or
not. But that's the problem. The Timms' argument was
that there was excess flash and a too-thin rubber chafer
strip - a defect - that caused the tire to become unseated
from the motorcycle rim. Whether these issues are defects,
whether the tire in fact had these issues, and whether these
issues could have caused the tire to become unseated are all
questions that are well beyond the understanding of an
average person. And so the Timms needed expert testimony to
answer these questions. The Timms presented William Woehrle.
But for all of the reasons stated in my Opinion granting
summary judgment, Woehrle's proposed testimony failed to
meet the standards of Daubert and Federal Rule of
Evidence 702. Nothing the eyewitnesses saw and testified to
affects my analysis in that regard.
the Timms rehash all of the same arguments for claiming that
their experts, Dr. Daniel Lee and Woehrle, are qualified to
provide testimony concerning the alleged defect in this case.
But the Timms have failed to provide any newly discovered
evidence or to point out a manifest error of law that would
persuade me to change my conclusion. The Timms' only new
evidence is a magazine article from Cycle World.
This article was published in 1981 and is hardly new.
Moreover, as their arguments relate to Dr. Lee, the Timms
never even opposed the defendants' motion to exclude his
testimony. That argument has long been waived.
only error of law that the Timms identify is that my
conclusion that the opinions of their experts fail to meet
the Daubert standard is contrary to the holding in
Metavante Corporation v. Emigrant Savings Bank, 619
F.3d 748 (7th Cir. 2010). I note that the Timms mentioned
this alleged error of law only in their reply brief.
Generally, arguments raised for the first time in a reply
brief are deemed waived. See Hess v. Reg-Ellen Mach. Tool
Corp., 423 F.3d 653, 655 (7th Cir. 2005). Nevertheless,
I will address the Timms' argument.
Metavante case is entirely inapposite. In that case,
the proposed expert was a consultant who was experienced in
financial services technology. He testified that defendant
company Metavante had performed its services in a
commercially reasonable way. Id. at 760. To reach
his conclusion, he relied on “‘the level of
deposits that were achieved on this system, the number of
accounts that were opened, transactions that were involved,
' as well as Metavante's responsiveness to
Emigrant's concerns and issues.” Id.
Importantly, the Seventh Circuit agreed with the district
court that the expert's testimony was not ipse
dixit. But that was because the expert offered something
other than “because I said so.” Id. The
expert had based his conclusions on his experience in the
industry and his observation of what other businesses did, as
to be considered “commercially reasonable.”
opinions offered by Woehrle and Dr. Lee could not be more
different from the opinion at issue in Metavante.
The question in this case was whether the alleged defects
caused the tire bead to become unseated from the rim, thereby
causing the Timms to lose control of their motorcycle. Where
the question was one of whether a certain practice was
“commercially reasonable, ” it makes sense that a
person's experience in the industry is highly relevant.
What other basis could a person have for concluding a
practice is reasonable? Here, Woehrle's experience, as it
was presented to me, is not sufficient to answer the highly
technical question of whether the defects caused the tire
bead to become unseated. And even if it was sufficient, the
Timms do not explain how Woehrle's experience would have
given him any insight into whether the defect caused the
unseating. Moreover, in Metavante, the expert's
opinion was based on the usual business practice, not just
his experience as a general matter. His opinion wasn't
ipse dixit because it was based on something
other than “because he said so.”
Id. That is not the case here. As explained in my
Opinion, Woehrle's opinions were based on exactly that.
the Timms claim that I misconstrued the ultimate opinions of
their experts. I don't see how this is the case, and the
Timms don't explain it to me. All of the Timms'
arguments on this point are the same arguments they raised in
their brief in opposition to summary judgment. For instance,
they now argue that excess flash is more than a cosmetic
defect. The whole dispute at the summary judgment stage
centered on whether excess flash is a defect that could have
caused their accident. The Timms had already presented the
evidence that Goodyear scrapes the flash off the tires before
sending them out. The problem with the Timms' argument
was that they had offered only the testimony of Woehrle to
support their contention that excess flash is a defect that
caused their injuries, but Woehrle's opinion was, in my
view, not reliable.
the Timms state that Goodyear no longer manufactures the tire
at issue in the case and is out of the motorcycle tire
business altogether. They haven't told me when they
learned this or in any way indicated that this is new
evidence. But even if it was new and I permitted the Timms to
introduce it, this one piece of evidence, standing alone,
does not alter my prior conclusion that summary judgment is
appropriate. It also does not constitute a manifest error of
law for which altering the judgment would be proper.
addition to seeking reconsideration, the Timms also seek to
supplement the record with several depositions. The Timms
presumably had these depositions in their possession when
they filed their brief opposing summary judgment - long
before judgment was entered. They have not pointed to any
reason why I should allow them to present them now when they
could have easily done so before.
of the above reasons, the Timms' motion to reconsider [DE
353] is DENIED. The Timms' Motion to Supplement with
Depositions in ...