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Walsh v. Chez

February 22, 2008

LAURA WALSH & DANIEL WALSH, ADMINISTRATORS OF THE ESTATE OF JASON WALSH, DECEASED, AND LAURA WALSH & DANIEL WALSH, IN THEIR OWN RIGHT PLAINTIFFS,
v.
MICHAEL G. CHEZ, M.D., AND AUTISM AND EPILEPSY SPECIALTY SERVICES OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM ORDER AND OPINION

Plaintiffs Laura Walsh and Daniel Walsh, on their own behalf and as the administrators of the estate of Jason Walsh (collectively, "the Walshes") filed a motion pursuant to Rule 59(e) asking the court to vacate or reconsider its dismissal order of December 4, 2007 and grant leave to supplement their Rule 26(a)(2) disclosures. For the reasons stated below, the court denies plaintiffs' motion.

I. BACKGROUND

The Walshes' five-year old son, Jason, was treated by Dr. Michael G. Chez for autism. After suffering through numerous medical complications, he died in May 2003. The Walshes sued Dr. Chez and the Autism and Epilepsy Specialty Services of Illinois (collectively, "Chez") alleging medical malpractice. Their theory of liability was that Chez was liable for deviating from the standard of care "[i]n prescribing an abrupt wean from daily high-dose steroids to a twice-a-week pulse-dose, a schedule not recognized or accepted within the pediatric community." Compl. ¶ 24(h).

As the case neared trial, the parties presented the court with numerous motions in limine. One of these was Chez's Motion in Limine No. 10,*fn1 which asked the court to bar the Walshes' experts from testifying, in part, because they failed to identify a standard of care. After the court had considered briefs, supplemental reports, and oral argument, it granted Chez's motion to exclude the Walshes' experts. The court then dismissed the case because the Walshes could not make a prima facie case without that testimony.

Two days later, the Walshes filed a motion for reconsideration and to vacate the December 4, 2007 order. In their reply brief, the Walshes clarified that the motion was filed pursuant to Rule 59(e) and the court will construe it as such.

II. ANALYSIS

In their Rule 59(e) motion, the Walshes argue that: (1) they should be allowed to file supplemental expert reports as "new evidence" because the court did not inform them that their existing reports and supplements were insufficient; and (2) the court made a manifest error in law when it granted the defendants' motion in limine.*fn2

A. Legal Standard - Rule 59(e)

Rule 59(e) provides that "[a] motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(e). "The decision whether to grant or deny a Rule 59(e) motion is entrusted to the sound judgment of the district court . . . ." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996) (internal citations omitted). The grounds for a Rule 59 motion are extremely limited; in fact, "there are only three[:] newly-discovered evidence, an intervening change in the law, and manifest error in law."*fn3 Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998) (internal citations omitted). The moving party must "clearly establish" one of the grounds for relief. See Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (quoting Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001) (contrasting Rule 59 with Rule 60 and observing that the former has a lower threshold of proof but the latter allows for additional grounds for relief)).

B. Arguments

The Walshes do not argue that there has been an intervening change in the law; therefore, the court need only address two of the grounds that justify a Rule 59(e) motion: (1) ...


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