United States District Court, W.D. Kentucky, Louisville Division
JAMES B. JOHNSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court
undergoing surgery at the Robley Rex Veterans Affairs Medical
Center in Louisville, Kentucky, Plaintiff James B. Johnson
sued the VAMC, alleging that the VAMC and its employees were
“negligent in their care, diagnosis, and
treatment.” (Docket No. 1, PageID # 2) The United
States moved for summary judgment, and the Court granted that
motion in part, dismissing two of Johnson's claims. (D.N.
47, PageID # 654) Johnson now asks the Court to reconsider
its order. (D.N. 50, PageID # 655) Johnson also seeks leave
to supplement his motion so that he may attach a clarified
expert opinion letter. (D.N. 52, PageID # 675) For the
reasons explained below, the Court will deny both motions.
November 2011, Johnson was admitted into the VAMC due to
abdominal pain. (D.N. 38-2, PageID # 113-14) Doctors
performed an esophagogastroduodenoscopy and discovered a
potentially cancerous mass in Johnson's abdomen.
(Id., PageID # 114) Following a variety of tests by
doctors at the VAMC and the University of Louisville, the
VAMC recommended that Johnson have the mass removed via
surgery, and Johnson consented. (D.N. 38-2, PageID # 135;
D.N. 41-7, PageID # 575) After the operation, a report
revealed that the mass was not cancerous. (D.N. 38-2, PageID
then brought this action against the United States pursuant
to the Federal Tort Claims Act. (D.N. 1) Johnson claimed that
the VAMC was negligent in proceeding with surgery without
first confirming that the mass was cancerous; he also claims
VAMC personnel were negligent in removing his drainage tube.
(D.N. 1; D.N. 38-2, PageID # 120) He further alleged that the
VAMC did not obtain his informed consent before operating.
(D.N. 48-1, PageID # 623) The United States sought summary
judgment. (D.N. 38) The Court granted the United States'
motion in part and dismissed Johnson's informed-consent
and necessity-of-surgery claims. (D.N. 47) Johnson's
drainage-tube claim remains pending. (Id.) Johnson
now asks the Court to reconsider its order pursuant to
Federal Rule of Civil Procedure 59(e), arguing that the Court
failed to view the facts in the light most favorable to him.
(D.N. 50, PageID # 655-66) Johnson also seeks leave to
supplement his motion to add a clarified opinion letter by
his expert witness, Dr. Peter B. Sherer, M.D. (D.N. 52)
Court “may grant a Rule 59(e) motion to alter or amend
[a] judgment only if there is: ‘(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.'” Henderson v. Walled Lake Consol.
Sch., 469 F.3d 479, 496 (6th Cir. 2006) (quoting
Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th
Cir. 2005)); Gati v. W. Ky. Univ., No.
3:14-CV-544-DJH-CHL, 2018 WL 3028572, at *1 (W.D. Ky. June
18, 2018). Rule 59(e) motions may not be used to relitigate
issues already decided or to present arguments that could
have been raised prior to judgment. Howard v. United
States, 533 F.3d 472, 475 (6th Cir. 2008); Roger
Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d
383, 395 (6th Cir. 2007).
no judgment exists, however, Rule 59(e) is inapplicable.
See CGH Transp., Inc. v. Quebecor World, Inc., 261
Fed.Appx. 817, 823 n.10 (6th Cir. 2008). When the Court
grants summary judgment in part and other claims remain
pending, the Court issues an interlocutory order, rather than
a judgment. Id. While the Federal Rules of Civil
Procedure do not expressly address reconsideration of such
orders, the Sixth Circuit recognizes that the Court has
“authority both under common law and under Rule 54(b)
‘to reconsider interlocutory orders and to reopen any
part of a case before entry of final judgment.'”
Saunders v. Ford Motor Co., No. 3:14-CV-00594-JHM,
2015 WL 13547825, at *2 (W.D. Ky. Aug. 4, 2015) (quoting
Rodriguez v. Tenn. Laborers Health & Welfare
Fund, 89 Fed.Appx. 949, 959 (6th Cir. 2004)). Still,
reconsideration is disfavored, and the Court will reconsider
an interlocutory order only if there is an intervening change
in controlling law; new evidence available; or a need to
correct a clear error or prevent manifest injustice.
Rodriguez, 89 Fed.Appx. at 959; Jackson v. City of
Cleveland, 219 F.Supp.3d 639, 642 (N.D. Ohio 2016). As
with Rule 59(e), reconsideration under Rule 54(b) may not be
employed to relitigate issues or present evidence that could
have been introduced earlier. Saunders, 2015 WL 13547825, at
59(e) is inapplicable to Johnson's case because there is
no judgment for the Court to amend. See CGH Transp., Inc.,
261 Fed.Appx. at 823 n.10. Although the Court dismissed some
of Johnson's claims, Johnson's drainage-tube claim
remains pending. (D.N. 47, PageID # 654) Thus, no judgment
has been issued, and the Court will construe Johnson's
request as a Rule 54(b) motion for reconsideration. See CGH
Transp., Inc., 261 Fed.Appx. at 823 n.10; Rodriguez, 89
Fed.Appx. at 959.
has not shown that reconsideration is warranted here. He does
not contend that controlling law has changed, new evidence
exists, or manifest injustice will otherwise result. (D.N.
50) The Court therefore assumes Johnson is attempting to
argue that the Court made a clear error in granting partial
summary judgment. To warrant reconsideration, though, the
error must be so apparent as to be beyond dispute.
Shelbyville Hosp. Corp. v. Mosley, No. 4:13-CV-88,
2017 WL 2275002, at *3 (E.D. Tenn. May 24, 2017); see
also Dose v. Equitable Life Assurance Soc'y, 864
F.Supp. 682, 684 (E.D. Mich. 1994). Johnson merely claims
that the Court failed to view the evidence in the light most
favorable to him and presents the same arguments as those
made in his response to the United States'
summary-judgment motion. (D.N. 50, PageID # 656; see D.N.
41-8) He does not argue that the Court applied an incorrect
legal standard, but rather that the Court's conclusion
was incorrect. (Id.) When a party presents the same
arguments and facts as those previously brought before the
Court, the proper recourse is to file an appeal rather than a
motion to reconsider. Dana Corp. v. United States,
764 F.Supp. 482, 489 (N.D. Ohio 1991) (defendant's
argument that the court incorrectly assessed the facts was
insufficient and essentially the same argument made in its
motion for summary judgment); see also Block v. Meharry
Med. Coll., No. 3:15-CV-00204, 2017 WL 1364717, at *1-2
(M.D. Tenn. Apr. 14, 2017); Bailey v. Real Time Staffing
Servs., Inc., 927 F.Supp.2d 490, 501 (W.D. Tenn. 2012);
cf. Glass v. Nw. Airlines, Inc., 798 F.Supp.2d 902,
910 (W.D. Tenn. 2011) (finding clear error where plaintiff
presented no evidence of an element of her claim but the
court denied defendant's motion for summary judgment).
Johnson thus has not identified a clear error.
does not argue that his proposed supplement presents a change
in controlling law, manifest injustice, or clear error. Nor
does Johnson contend that the letter is new evidence; rather,
Dr. Sherer's letter is a “clarified opinion”
meant to explain the evidence already presented. (D.N. 52,
PageID # 675) Yet Johnson does not suggest that this clarity
was previously unavailable or explain why it was not provided
prior to the Court's ruling. (Id.) Rule 54(b)
does not afford parties the opportunity to present evidence
that could have been presented earlier. See Saunders, 2015 WL
13547825, at *2. Likewise, a party cannot avoid summary
judgment by introducing expert affidavits that contradict the
same expert's prior opinion without explaining the
contradiction. See Yanovich v. Zimmer Austin, Inc.,
255 Fed.Appx. 957, 959-60 (6th Cir. 2007) (finding expert
affidavit contradicting the same expert's prior report
should have been considered by the district court because the
contradiction was explained by a change in the definition of
manufacturing defect); Peck v. Bridgeport Mach.,
Inc., 237 F.3d 614, 619 (6th Cir. 2001) (ruling that
affidavit from plaintiff's expert contradicting the
expert's prior deposition testimony did not warrant
reconsideration of the district court's summary judgment
ruling). Dr. Sherer initially stated that the VAMC's
method was “unusual” and that the VAMC should
have “taken [its] time before proceeding with
surgery.” (D.N. 41-5, PageID # 409) Now, Dr. Sherer
concludes that “[b]eyond a reasonable doubt, [that] the
surgery Mr. Johnson underwent was inappropriate and below the
standard of care.” (D.N. 52-2, PageID # 678) Dr. Sherer
does not explain why his opinion changed nor does he attempt
to explain the inconsistency. (Id.) Finally, the
proposed supplement does not remedy the deficiencies in Dr.
Sherer's opinion that the Court identified in its order
or address the overwhelming evidence in the record indicating
that Johnson's surgery was warranted. (D.N. 47, PageID #
649-52) In sum, even with the proposed supplement,
Johnson's motion does not warrant reconsideration under
Rule 54(b). The motion to supplement will therefore be
reasons set forth above, and the Court being otherwise