The opinion of the court was delivered by: Herndon, District Judge
On September 25, 2006, the Court issued an Order (Doc. 65) in this case, denying defendant Cottrell, Inc.'s Motion for Summary Judgment (Doc. 17).*fn1 On October 10, 2006, Defendant filed a Motion for Reconsideration of September 25, 2006 Order or in the Alternative Motion for Leave of Court to Submit Amended Summary Judgment Motion and Request for Oral Argument (Doc. 67). Plaintiffs Craig Yow and Patricia Yow filed a Response in Opposition (Doc. 71), to which Defendant has replied (Doc. 72). In addition, Plaintiffs have filed two Supplements to their Response (Docs. 82 & 87); Defendant has responded to the initial Supplement (Doc. 83).
Specifically, Defendant requests the Court to reconsider its prior Order concerning two issues: (1) whether Gary Page's errata sheet is admissible and (2) whether certain portions of Elwood Feldman's affidavit can be considered lay witness testimony rather than expert testimony (Doc. 67). In its September 25, 2006 Order, the Court refused to permit reference to the substance of the Page errata sheet and also refused to consider it as evidentiary support for Defendant's summary judgment motion (Doc. 65, p. 10). Further, the Court declined to consider anything amounting to opinion testimony in the Feldman affidavit when ruling on Defendant's summary judgment motion, as Defendant had not disclosed Feldman as an expert witness (Id. at 6). Instead, the Court only considered argument and/or testimony regarding Mr. Feldman's personal and factual observations, but would not consider Mr. Feldman's opinions drawn from those observations (Id.). Regarding Defendant's Rule 59(e) Motion, if the Court does not find the Page errata sheet admissible, Defendant alternatively seeks leave of Court to file an amended summary judgment motion (Doc. 67, p. 7). Defendant states that the amended motion would include an affidavit from Mr. Page, which it believes will supply sufficient evidence to allow the Court to grant summary judgment in its favor.
Plaintiffs vehemently oppose Defendant's assertions, arguing that Defendant has failed to advance any legal grounds warranting the Court's reconsideration of its prior Order (Doc. 71). Additionally, Plaintiffs argue that allowing Defendant to file an amended summary judgment motion at this late stage would be tantamount to modifying the scheduling order (as the deadline for filing dispositive motions was December 2005), for which Defendant has failed to show good cause (Id. at 3-5), and such filing would be untimely and unfairly prejudicial (Id. at 9-10).
Defendant requests oral argument on its Rule 59(e) Motion, yet the Court finds the issues can be resolved solely by way of the parties' briefs, and thus, declines to set the matter for hearing. Per the discussion below, Defendant's Motion is granted in part and denied in part.
Defendant makes its timely Motion to Reconsider pursuant to FEDERAL RULE OF CIVIL PROCEDURE 59(e). See FED.R.CIV.P. 59(e) ("Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment"). 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)(citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)). To support a motion for reconsideration based on newly discovered evidence, the moving party must show it did not know and reasonably could not have discovered with reasonable diligence the evidence proffered in the motion for reconsideration until after judgment was rendered. Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264,1269 (7th Cir. 1996). Therefore, a motion made pursuant to Rule 59(e) cannot be used as "a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment." Moro v. Shell Oil Co., 91 F.3d 872, 875 (7th Cir. 1996).
Determining whether to grant a Rule 59(e) motion is at a district court's discretion. See Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000)(stating "[A] motion to reconsider a ruling is constrained only by the doctrine of the law of the case. And that doctrine is highly flexible, especially when a judge is being asked to reconsider his own ruling.")(citations omitted). "The rule essentially enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995) (citation omitted). The function of a motion to reconsider a judgment is not to serve as a vehicle to re-litigate old matters or present the case under a new legal theory. Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000)(citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). Moreover, the purpose of such a motion "is not to give the moving party another 'bite of the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment." Yorke v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 B.R. 963, 977 (N.D. Ill.1990) (citing F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)(other citations omitted)). As one court plainly put it: "A Rule 59(e) motion is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants." Id.
This is a personal injury case for a lower back injury plaintiff Craig Yow allegedly suffered while working as a truck driver for Jack Cooper Transport ("JCT"). On the day of his injury, Yow was operating a car hauling rig, which employs a manual rear skid loading system. After unloading the cars, Yow was pushing the left rear skid back into its housing assembly when it allegedly locked up, causing him to injure his lower back. Defendant is the manufacturer of the car hauling rig operated by Yow the day of his injury. Plaintiffs have sued Defendant based on theories of product liability and negligence regarding the rear skid loading system.
As explained in the Court's previous September 25, 2006 Order (Doc. 65), Plaintiffs originally commenced this action as an Illinois Supreme Court Rule 224 proceeding directed towards Yow's employer, JCT (Doc. 23, p. 8, Ex. G). JCT thereby designated Gary Page to serve as its corporate representative for deposition. Plaintiffs deposed Page on May 3, 2004 (Doc. 23, p. 8, Ex. I). In its prior Order, the Court noted that during his deposition, Page testified that rear skids of the rig were not modified or replaced prior to Yow's injury. Page further testified that if the ...