Washam v. BNSF Ry. Co.

1

BRADLEY WASHAM PLAINTIFF v. BNSF RAILWAY COMPANY DEFENDANT

No. 3:19-cv-00231 KGB

United States District Court, E.D. Arkansas, Northern Division

March 31, 2022

ORDER

KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE

Before the Court is defendant BNSF Railway Company's (“BNSF”) motion for Daubert hearing and reconsideration of exclusion of expert William Neale (Dkt No. 186). Plaintiff Bradley Washam responded in opposition to the motion for hearing and reconsideration (Dkt. No. 189). BNSF filed a reply (Dkt. No. 190). Mr. Washam filed a sur-reply (Dkt. No. 193). For the following reasons, the Court denies, in part, and grants, in part, BNSF's motion for Daubert hearing and reconsideration of the exclusion of expert Mr. Neale (Dkt. No. 186).

I. Overview Of Arguments

By prior Order, this Court examined the parties' filings; applied the controlling analysis pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and controlling authorities construing it; and ruled that, on the record before it, BNSF did not “meet its burden of establishing by a preponderance of the evidence that Mr. Neale's testimony will be reliable or helpful to the jury in this case.” (Dkt No. 145, at 22). The Court entered its Order on October 2, 2020, excluding Mr. Neale's proposed expert testimony based on the then-existing record before the Court (Dkt. No. 145). That record included Mr. Neale's expert report, excerpts of his deposition testimony, and his affidavit, along with the parties' filings (Dkt. Nos. 105, 117, 123). On April 23, 2021, BNSF first requested a Daubert hearing and reconsideration of the Court's ruling (Dkt. No. 186).

The Court conducted a status conference with counsel on October 5, 2021, at which time counsel discussed with the Court the status of pretrial matters, including this pending motion (Dkt. No. 208). At that hearing, counsel for BNSF made clear that BNSF requests a hearing to present Mr. Neale and his anticipated testimony for the Court's consideration. Counsel for BNSF also explained that, even if the Court persists in its ruling to exclude portions of Mr. Neale's testimony challenged by Mr. Washam, counsel for BNSF believes that there are some topics Mr. Neal still should be allowed to address before a jury (see also Dkt. No. 186, at 22-23 (explaining further this request)).

A. BNSF's Argument

In support of its motion for reconsideration, BNSF argues that, when this Court ruled on the motion to exclude Mr. Neale's proposed expert testimony in this case, the Court based its ruling on argument made for the first time in the reply brief filed by Mr. Washam (Dkt. No. 186, at 1). BNSF contends that Mr. Neale's methodology was not challenged by Mr. Washam in his opening brief and that “BNSF was prejudiced by not being able to respond to this argument” (Id.). As a result, BNSF seeks reconsideration of the Court's Order and a Daubert hearing purportedly “for purposes of curing this prejudice” (Id.).

BNSF states:

Mr. Neale is a video reconstructionist and analysis expert who was retained in this case because one of the key pieces of evidence pertinent to the case is the surveillance video from the Anchor Packaging Industry in Jonesboro, Arkansas. Mr. Neale's job was to analyze the video to determine what occurred when Mr. Bradley Washam (‘Plaintiff') was not visible on the footage.

(Id., at 2). In its current motion, BNSF maintains that “Mr. Neale used video analytical software to determine small changes in the pixels, not perceptible to the human eye, in order to extrapolate Plaintiff's position when he is not in view of the camera.” (Id.). In other words, BNSF asserts that Mr. Neale's analysis and anticipated testimony is “based on explanation of the physical evidence available to the parties through the video that is not able to be perceived by a lay person.” (Id.).

B. Mr. Washam's Argument

Mr. Washam maintains that BNSF's argument is without merit in that his Daubert motion “clearly challenged Neale's ‘methodology' and evidence bearing on such was presented by both sides for the Court to consider, and that BNSF “was not ‘prevented' from presenting evidence supporting Neale's methodology” (Dkt. No. 189, at 1). Mr. Washam specifically points this Court to BNSF's opposition to Mr. Washam's Daubert motions in which BNSF “addressed the issue of his methodology and its reliability.” (Id. (citing Dkt. Nos. 117 and 117-4)).

II. Applicable Legal Standards

A. Standard For Motion For Reconsideration

This Court acknowledges that a district court has “the inherent power to reconsider and modify an interlocutory order any time prior to the entry of judgment.” K.C. 1986 Ltd. P'ship v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007) (internal quotation marks and citation omitted). The standard for reconsideration of an interlocutory order is less clear. Vosdingh v. Qwest Dex, Inc., No. Civ. 03-4284 ADM/AJB, 2005 WL 1323007, at *1 (D. Minn. June 2, 2005).

Although Federal Rule of Civil Procedure 54(b) states that “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. . . may be revised at any time before the entry of a judgment, ” some language in Eighth Circuit caselaw suggests that motions to reconsider “are nothing more than Rule 60(b) motions when directed at non-final orders.” Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (citing Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003); Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999)). This language has been characterized by other courts as dicta and criticized for failing to recognize a district court's inherent authority to reconsider interlocutory orders, authority which as a practical matter a district court needs in order to modify orders in response to the changing circumstances of a lawsuit before it. Garrett v. Albright, No. 4:06-CV-4137-NKL, 2008 WL 268993, at *2 n.2 (W.D. Mo. Jan. 30, 2008) (Laughrey, J.) (expressing disagreement with Elder-Keep ); Laird v. Stilwill, 982 F.Supp. 1346, 1354 (N.D. Iowa 1997) (holding that a district court's discretion to amend an interlocutory order is greater than its power to amend a final judgment); see also Vosdingh, 2005 WL 1323007, at *1 (observing that “[s]ince this Court owes no deference to itself and knows it makes mistakes, motions to reconsider will be granted and a change made when convinced an error has been made, manifest or not.”).

For these reasons, the Court determines that, although the Federal Rules of Civil Procedure do not expressly provide for motions to reconsider, Rule 54(b) encompasses the power to revise an interlocutory order any time prior to the entry of final judgment. See Thunder Basin Coal Co., L.L.C. v. Zurich Am. Ins. Co., No. 4:12-CV-231 (CDP), 2013 WL 6410012, at *1 (E.D. Mo. Dec. 9, 2013); Trickey v. Kaman Indus. Techs. Corp., No. 1:09-CV-00026 (SNLJ), 2011 WL 2118578, at * 1-2 (E.D. Mo. May 26, 2011); see, e.g., Jiang v. Porter, No. 4:15-CV-1008 (CEJ), 2016 WL 193388, at *1 (E.D. Mo. Jan. 15, 2016) (applying Rule 54(b) to a motion to reconsider the denial of a motion to dismiss).

Specifically, Rule 54(b) states that:

[A]ny order. . . 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.

Fed. R. Civ. P. 54(b).

Under Rule 54(b), a court may reconsider an interlocutory order to “‘correct any clearly or manifestly erroneous findings of fact or conclusions of law.'” Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Canada, No. 4:00-CV-1073 (CEJ), 2011 WL 1599550, at *1 (E.D. Mo. Apr. 27, 2011) (quoting Jones v. Casey's Gen. Stores, 551 F.Supp.2d 848, 854 (S.D. Iowa 2008)); see Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988). In particular, a motion to reconsider may be granted if the earlier decision: “‘(1) misunderstood a party, (2) made a decision outside of the adversarial issues, or (3) would be rendered incorrect because of a ‘controlling or significant change in law' since the issues were submitted to the Court.'” Trickey, 2011 WL 2118578, at *2 (quoting Westinghouse Elec. Co. v. United States, No. 4:03-CV-861, 2009 WL 881605, at *4 (E.D. Mo. Mar. 30, 2009)); see also Pet Quarters, Inc. v. Ladenburg Thalmann and Co., No. 4:04-CV-00697-BRW, 2011 WL 1135902, at *1 (E.D. Ark. Mar. 28, 2011) (reasoning that an “intervening change in the controlling law is a recognized ground for granting a motion for reconsideration”).

A motion to reconsider under Rule 54(b), however, is “not a vehicle to identify facts or legal arguments that could have been, but were not, raised at the time the relevant motion was pending.” Julianello v. K-V-Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015); see also Evans v. Contract Callers, Inc., No. 4:10-CV-2358 (FRB), 2012 WL 234653, at *2 (E.D. Mo. Jan. 25, 2012) (“Although the Court has the power to revisit prior decisions of its own. . . in any circumstance, [it] should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” (internal quotation marks and citation omitted; formatting in original)).

Finally “when evaluating whether to grant a motion to reconsider, the Court also has an interest in judicial economy and ensuring respect for the finality of its decisions, values which would be undermined if it were to routinely reconsider its interlocutory orders.” Trickey, 2011 WL 2118578, at *2 (citing Disc. Tobacco Warehouse, Inc. v. Briggs Tobacco and Specialty Co.,...