Palmer v. Sun Coast Contracting Services, Inc.

          ORDER DENYING PLAINTIFFS' MOTION [366] FOR RECONSIDERATION

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Plaintiffs' Motion [366] for Reconsideration filed on July 26, 2017. Plaintiffs ask the Court to reconsider its July 7, 2017, Order [333] Granting the Joint Motion [230] of Defendants Drying Facility Asset Holdings, LLC, Shale Support Services, LLC, and Linfield, Hunter & Junis, Inc., to Exclude or Limit the Testimony of Plaintiffs' Proffered Expert, Jamie Saxon, under Federal Rule of Evidence 702 and Daubert. Having considered the Motion, the record, and relevant legal authority, the Court is of the opinion that Plaintiffs' Motion for Reconsideration should be denied.

         I. BACKGROUND

         Of relevance here, Plaintiffs have asserted that the construction and operation of a “frac sand plant” (“the Plant”) and a multi-track railroad spur on property near houses owned by them has damaged their structures due to vibrations and increased flooding in their subdivision. Plaintiffs designated Jamie Saxon, P.E., as a structural engineer to opine on the causal relationship between the construction/operation of the Plant and the damages to Plaintiffs' houses.

         On March 20, 2017, Defendants filed a Joint Motion [230] to Exclude or Limit Saxon's testimony under Federal Rule of Evidence 702 and Daubert. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On July 7, 2017, the Court granted the parties' Joint Motion [230] and held that Saxon would not be permitted to testify at trial. See Order [333] at 13-14.

         On July 20, 2017, the Court conducted a Pretrial Conference. This matter is set for a two-week jury trial commencing on August 14, 2017. On July 26, 2017, less than three weeks before trial is scheduled to commence, Plaintiffs filed a Motion for Reconsideration [366], asking the Court to reconsider its Order [333] excluding Saxon's testimony. Mot. [366] at 1-2. Plaintiffs rely upon Federal Rule of Civil Procedure 59(e). Id.

         II. DISCUSSION

         A. The Court will consider Plaintiffs' Motion pursuant to Rule 54(b).

         “Rule 59(e) governs motions to alter or amend a final judgment; Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to ‘revise[ ] at any time' ‘any order or other decision ... [that] does not end the action . . . .'” Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *8 (5th Cir. Apr. 14, 2017) (quoting Fed.R.Civ.P. 54(b)). “Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Id. at *9 (quotation omitted); see also Stoffels ex rel. SBC Telephone Concession Plan v. SBC Communications, Inc., 677 F.3d 720, 727-28 (5th Cir. 2012).

         B. Plaintiffs' Motion is not well taken and will be denied.

         The Court excluded Saxon because Plaintiffs had not demonstrated: (1) that Saxon was qualified to offer the opinions for which he was designated; (2) that Saxon employed an accepted or reliable methodology; or (3) that Saxon based his opinions on sufficient facts or data. Order [333] at 10-13. Plaintiffs have now submitted a two-and-a-half page Affidavit [366-1] recently executed by Saxon “to address issues that are contained in [his] report of April 29, 2016, that may have been misunderstood or misinterpreted.” Saxon's Aff. [366-1] at 1. Plaintiffs therefore ask the Court to reconsider its Order [333] excluding Saxon's testimony at trial.

         1. Saxon's Affidavit [366-1] is untimely.

         To the extent that Saxon's Affidavit [366-1] discloses additional information or could be construed as containing a new or even supplemental opinion, it is untimely. See Fed. R. Civ. P. 26; L.U. Civ. R. 26. Plaintiffs' expert designation deadline was April 29, 2016, see Apr. 12, 2016, Text Only Am. Case Mgmt. Order, and discovery was due by January 30, 2017, see Oct. 24, 2016, Text Only Am. Case Mgmt. Order. The trial in this matter is scheduled to commence in about two-and-a-half weeks.

         The United States Courts of Appeals for the Fifth Circuit reviews a court's exercise of discretion to exclude evidence that was not properly disclosed by considering the following four factors: “(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). To the extent ...