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Polson v. Cottrell

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


May 21, 2007

ROBERT POLSON AND MARY L. POLSON, PLAINTIFFS,
v.
COTTRELL, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

Now before the Court is Defendant's Rule 59 motion to reconsider Order denying motion to bar Plaintiffs' expert Linda Weseman from testifying (Doc. 129). Plaintiffs oppose the motion (Doc. 129). Based on the following, the Court denies the motion.

Strictly speaking, a motion to reconsider does not exist under the Federal Rules of Civil Procedure. Hope v. United States , 43 F.3d 1140, 1142 (7th Cir. 1995) . Despite this fact, such motions are routinely presented, and this Court will consider them if timely-filed. If filed within ten days of the entry of a judgment or order in the case, the motions are construed as motions to alter or amend under Federal Rule of Civil Procedure 59(e) . See Britton v. Swift Transportation Co., Inc. , 127 F.3d 616, 618 (7th Cir. 1997)("the key factor in determining whether a 'substantive' motion is cognizable under Rule 59 or 60 is its timing"); Mendenhall v. Goldsmith , 59 F.3d 685, 689 (7th Cir.), cert. denied, 516 U.S. 1011 (1995)("any post-judgment substantive motion that is made within ten days of the entry of judgment is deemed a Rule 59(e) motion.").

A Rule 59(e) motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence. " LB Credit Corp v. Resolution Trust Corp. , 49 F.3d 1263, 1267 (7th Cir. 1995). citations omitted. It is at a district court's discretion as to whether reconsideration is warranted under Rule 59(e). See Pickett v. Prince , 207 F.3d 402, 407 (7th Cir. 2000).

Here, Cottrell maintains that the Court's March 28, 2007 Order denying its motion to bar Weseman contains a mistake of fact in that this case does not involve rear-loading skids, but ratchets, and that Ms. Weseman has refused to discuss her ratchet work for Boystun post contract formation. Plaintiffs oppose the motion arguing that Weseman did not rely on any confidential communications with Boydstun in forming her opinions in this case.

As noted in the Court's March 28, 2007 Order, the Court is well aware that this is a chain and ratchet case and not a rear-loading skid case. The record indicates that Weseman testified "There exists nothing whatsoever regarding my post-April 23, 2005 communications with Boydstun Metal Works, Inc., which were considered by myself in forming of my opinions in this case." (Doc. 121 Ex. B. ¶ 2). Moreover, Weseman testified that she has not advised Boydstun on the chain and ratchet system since the April 23, 2005 contract and that she has freely provided all prior advice.*fn1 She also has testified in the past that Boydstun soft tie-down systems tests performed in the past do not form the bases of her opinions.*fn2 Further, Wesman has not withheld any testimony in this case and Cottrell has not deposed her.*fn3

Because Cottrell has not shown that the Court's Order contained a mistake of law or fact or that it is clearly erroneous, the Court denies Cottrell's Rule 59 motion to reconsider Order denying motion to bar Plaintiffs' expert Linda Weseman from testifying (Doc. 129).

IT IS SO ORDERED.

David R Herndon United States District Judge


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