United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING PLAINTIFFS' MOTION  FOR
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiffs' Motion  for Reconsideration
filed on July 26, 2017. Plaintiffs ask the Court to
reconsider its July 7, 2017, Order  Granting the Joint
Motion  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.
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.
March 20, 2017, Defendants filed a Joint Motion  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
 and held that Saxon would not be permitted to testify
at trial. See Order  at 13-14.
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 , asking the Court to reconsider its
Order  excluding Saxon's testimony. Mot.  at
1-2. Plaintiffs rely upon Federal Rule of Civil Procedure
The Court will consider Plaintiffs' Motion pursuant
to Rule 54(b).
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).
Plaintiffs' Motion is not well taken and will be
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  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  excluding Saxon's testimony at
Saxon's Affidavit [366-1] is untimely.
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
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 ...