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Powell v. Tosh

United States District Court, Sixth Circuit

May 3, 2013

TERRY POWELL, et al., Plaintiffs,
v.
JIMMY TOSH, et al., Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Plaintiffs' three Motions to Reconsider. (Docket Nos. 583; 584; 585.)

In their first Motion, Plaintiffs move the Court to reconsider that portion of the Court's Opinion and Order at Docket No. 536 in which the Court granted Defendants summary judgment relative to Plaintiffs' claims of punitive damages, negligence, and negligence per se. (Docket No. 583.) The Tosh Defendants[1] and the Howell and Davis Defendants[2] separately have responded, (Docket Nos. 594 & 592, respectively), and Plaintiffs have replied, (Docket No. 599).

In their second Motion, Plaintiffs move the Court to reconsider that portion of the Court's Opinion and Order at Docket No. 537 in which the Court excluded certain proposed expert testimony by Plaintiffs' experts Thomas Card and Neil Webster. (Docket No. 584.) The Tosh Defendants and the Howell and Davis Defendants separately have responded, (Docket Nos. 589 & 590, respectively), and Plaintiffs have replied, (Docket No. 600).

In their third Motion, Plaintiffs move the Court to reconsider that portion of the Court's Opinion and Order at Docket No. 536 in which the Court granted Defendants summary judgment on Plaintiffs' temporary nuisance claims. (Docket No. 585.) The Tosh Defendants and the Howell and Davis Defendants separately have responded, (Docket Nos. 593 & 591, respectively), and Plaintiffs have replied, (Docket No. 601). These matters are now fully briefed and ripe for adjudication.

BACKGROUND

The facts pertinent to the Plaintiffs' claims in this matter were recited in full in the Court's prior Opinion addressing collectively Defendants'[3] various motions for summary judgment. ( See Docket No. 536, at 3-7.) Similarly, the facts pertinent to the Court's decision regarding the admissibility of Plaintiffs' proposed experts Neil Webster and Thomas Card were discussed in the Court's prior Opinion addressing Defendants' various motions in limine. ( See Docket No. 537, at 25-52.) In the interest of brevity, the Court will not recite the factual background again, but instead incorporates by reference its prior recitations.

STANDARD

"District courts have inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment." In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008). "A district court may modify, or even rescind, such interlocutory orders." Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991). Although the Federal Rules of Civil Procedure do not provide expressly for "motions for reconsideration, " courts generally construe such motions as motions to alter or amend a judgment under Rule 59(e). E.g., Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); Taylor v. Colo. State Univ., 2013 WL 1563233, at *8-9 (W.D. Ky. Apr. 12, 2013).

The Sixth Circuit has consistently held that a Rule 59 motion should not be used either to reargue a case on the merits or to reargue issues already presented, see Whitehead v. Bowen, 301 F.Appx. 484, 489 (6th Cir. 2008) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)), or otherwise to "merely restyle or rehash the initial issues, " White v. Hitachi, Ltd., 2008 WL 782565, at *1 (E.D. Tenn. Mar. 20, 2008) (internal quotation marks and citation omitted). "It is not the function of a motion to reconsider arguments already considered and rejected by the court." Id. (citation omitted). As another district court in this Circuit put it, "Where a party views the law in a light contrary to that of this Court, its proper recourse is not by way of a motion for reconsideration but appeal to the Sixth Circuit." Hitachi Med. Sys. Am., Inc. v. Branch, 2010 WL 2836788, at *1 (N.D. Ohio July 20, 2010) (internal quotation marks and citations omitted). Accordingly, the Sixth Circuit instructs that a motion for reconsideration should only be granted on four grounds: "Under Rule 59, a court may alter or amend a judgment based on: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). Furthermore, because there is an interest in the finality of a decision, this Court and other district courts have held that "[s]uch motions are extraordinary and sparingly granted." Marshall v. Johnson, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19, 2007) (citing Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F.Supp. 644, 669 (N.D. Ohio 1995)); accord Rottmund v. Cont'l Assurance Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992).

DISCUSSION

I. Plaintiffs' Motion to Reconsider Relative to Plaintiffs' Claims of Negligence and Negligence Per Se , and for Punitive Damages, (Docket No. 583)

In its prior Opinion, the Court granted Defendants summary judgment on Plaintiffs' negligence and negligence per se claims, finding that Plaintiffs had failed to prove they suffered injuries to support those claims. (Docket No. 536, at 23-27.) The Court also granted Defendants summary judgment on Plaintiffs' gross negligence and punitive damages claims, finding that "[t]he undisputed facts do not support a finding that Defendants failed to exercise even slight care." (Docket No. 536, at 27.) Plaintiffs now move the Court to reconsider those conclusions, arguing that the Court erred (1) by failing to recognize that punitive damages were still available for their nuisance claims, and (2) by determining they had not put forth sufficient evidence of damages to show a genuine issue of material fact on their claims of negligence and negligence per se. ( See Docket No. 583-1.)

A. Plaintiffs' claim for punitive damages can proceed based on their remaining nuisance claims.

As to their punitive damages claims, Plaintiffs argue that the Court erred by failing to recognize that, by Kentucky statute, punitive damages are available for their remaining claim of permanent nuisance. Kentucky Revised Statutes § 411.560(4) does provide that punitive damages are recoverable if a claimant recovers damages for private nuisance. In this regard, the Court agrees that its prior decision was in error and that punitive damages are recoverable on Plaintiffs' permanent nuisance claims. Thus, in light of the clear statutory law on this point, Plaintiffs have presented a viable basis for reconsideration under the applicable standard for a Rule 59(e) motion. See, e.g., Leisure Caviar, 616 F.3d at 615 ("Under Rule 59, a court may alter or amend a judgment based on: (1) a clear error of law....'")

However, the Court's inquiry into the propriety of its previous decision does not end there. Although Kentucky law permits recovery of punitive damages for private nuisance, a claimant must still show, by clear and convincing evidence, that a defendant acted with "oppression, " "fraud, " or "malice." Ky. Rev. Stat. § 411.184. "Malice, " for purposes of punitive damages, is now equated with "gross negligence, " which is defined as "the absence of slight care" or "reckless indifference or disregard for the rights of others." See City of Middlesboro v. Brown, 63 S.W.3d 179, 181 (Ky. 2001); see also Williams v. Wilson, 972 SW.W.2d 260 (Ky. 1998) (holding unconstitutional the subjective awareness standard of "malice" in § 411.184(1)).

Having previously noted that "[t]he undisputed facts do not support a finding that Defendants failed to exercise even slight care, " the Court questions whether Plaintiffs have put forth sufficient evidence to establish a genuine issue of material fact that Defendants' acts breached the statutory threshold of oppressive, fraudulent, or recklessly indifferent conduct. In the interest of appropriate caution, the Court finds that this issue need not be decided definitively at this juncture. Rather, the question whether Plaintiffs have put forth sufficient evidence to instruct the jury on punitive damages may be raised and decided at trial after the close of Plaintiffs' proof. Accordingly, the Court will vacate its prior grant of summary judgment in Defendants' favor on Plaintiffs' punitive damages claim. Plaintiffs may recover punitive damages in accordance with Ky. Rev. Stat. § 411.560(4) if they recover damages on their remaining nuisance claims and if they prove that Defendants' "conduct in engaging in the specific activity which is alleged to be the nuisance meets or exceeds the standards set forth in [§] 411.184." For these reasons, the Court will grant Plaintiffs' Motion to Reconsider relative to their claim for punitive damages.

B. Summary judgment was, and remains, appropriate on Plaintiffs' negligence and negligence per se claims.

As to their claims of negligence and negligence per se, Plaintiffs argue that "the

Court misinterpreted the proof required to establish damages under Kentucky negligence law, " and that they have put forth sufficient evidence demonstrating the physical and emotional harm suffered as a result of the odor emitted from Defendants' hog barns. (Docket No. 583-1, at 6-7.) Here, Plaintiffs reason that "the Court's application of Osborne v. Keeney, 2012 WL 6634129 (Ky. 2012)[, ] to Plaintiffs' negligence claims has caused manifest injustice."[4] (Docket No. 583-1, at 5.) The Kentucky Supreme Court decided Osborne December 2012 after briefing was completed on the underlying motions for summary judgment in this matter.[5] In its prior Opinion, the Court referenced the Osborne decision in a single citation, stating:

Plaintiffs have also failed to present personal injuries to support a negligence claim. First, all but one Plaintiff acknowledge they have suffered no physical harm as a result of the odors from the Defendants' barns. Although some Plaintiffs recount mental or emotional distress as a result of the odors, none have sought or received treatment or counseling and none present medical proof in support of their distress claims. This is insufficient to support a negligence cause of action in Kentucky. See Osborne v. Keeney, 2012 WL 6634129, at *9 (Ky. Dec. 20, 2012) ("Distress that does not significantly affect the plaintiffs [sic] everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment").

(Docket No. 536, at 25 (footnote omitted).)

Plaintiffs now contend that "the holding in Osborne is not applicable here, because that case dealt only with the damages for negligent infliction of emotional distress, a separate cause of action which has always required greater scrutiny than other negligence claims." (Docket No. 583-1, at 8.) Plaintiffs further contend that because Osborne applies retroactively, "the Court should allow Plaintiffs additional time to comply with its new requirements for expert testimony, rather than granting summary judgment for failure to comply with a requirement that did not exist under Kentucky law at the time the issue was submitted to the Court." (Docket No. 583-1, at 9.) Despite Osborne 's impact on emotional distress claims and damages related thereto, the reasoning underlying this Court's prior conclusion that summary judgment was warranted on Plaintiffs' negligence and negligence per se claims remains unaffected.

In Osborne, the Kentucky Supreme Court held that "the impact rule is no longer the rule of law in Kentucky" where a plaintiff seeks to recover for claims involving emotional distress.[6] 2012 WL 6634129, at *13. The Kentucky Court went on to conclude that: "these cases should be analyzed under general negligence principals. That is to say that the plaintiff must present evidence of ...


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