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Glenn D. Pankey v. Wright Medical Group

March 27, 2012

GLENN D. PANKEY, PLAINTIFF,
v.
WRIGHT MEDICAL GROUP, INC.,A CORPORATION, WRIGHT MEDICAL TECHNOLOGY, INC., A CORPORATION, AND WRIGHT MEDICAL EUROPE SA, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge

E-FILED Tuesday, 27 March, 2012 10:06:46 AM Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion to Reconsider Granting of Summary Judgment in Favor of Defendants Pursuant to F.R.C.P 60 (#89) filed by Plaintiff, Glenn D. Pankey. This court has carefully reviewed the arguments of the parties and the documents filed by Plaintiff. Following this careful and thorough review, Plaintiff's Motion to Reconsider (#89) is DENIED.

BACKGROUND

On February 7, 2012, this court entered an Opinion (#87) and granted summary judgment in favor of Defendants. This court carefully considered the arguments of the parties and the documents provided by the parties. Following this careful and thorough review, this court concluded that: (1) Plaintiff had provided no evidence showing the existence of a manufacturing defect so that Defendants were entitled to summary judgment on that claim; and (2) Defendants were entitled to summary judgment on Plaintiff's design defect claim because Plaintiff had not provided the court with sufficient evidence from which it could conduct a threshold risk-utility analysis. As far as Plaintiff's design defect claim, this court set out a lengthy analysis of the evidence provided and concluded that "Plaintiff has not adequately shown that the risks of the modular design used in the Profemur® prosthesis outweigh the benefits of the design."

MOTION TO RECONSIDER

On March 1, 2012, Plaintiff filed a Motion to Reconsider Granting of Summary Judgment in Favor of Defendants Pursuant to F.R.C.P 60 (#89), with an attached exhibit. Plaintiff also filed a Memorandum in Support (#90), with attached exhibits, and an additional sealed exhibit (#91). On March 19, 2012, Defendants filed a Brief in Opposition to Plaintiff's Motion for Reconsideration (#92). On March 23, 2012, Plaintiff filed a Request for Oral Argument (#93). This court concludes that Plaintiff's Motion is fully briefed and oral argument is not necessary.

ANALYSIS

STANDARD Plaintiff brought his Motion to Reconsider pursuant to Rule 60 of the Federal Rules of Civil Procedure. Under Rule 60(b), the district court "may relieve a party . . . from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect." Eskridge v. Cook County, 577 F.3d 806, 808 (7th Cir. 2009), quoting Fed. R. Civ. P. 60(b). A district court has discretion to deny relief under Rule 60(b), and a district court's decision is reviewed under an "extremely deferential" abuse of discretion standard. Eskridge, 577 F.3d at 808-09. "Because relief under Rule 60(b) is 'an extraordinary remedy and is granted only in exceptional circumstances,' a district court abuses its discretion only when 'no reasonable person could agree' with the decision to deny relief." Eskridge, 577 F.3d at 809, quoting McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). Plaintiff has not explained how he could be entitled to relief under Rule 60(b), and this court concludes that Plaintiff cannot be granted any relief under Rule 60(b).

However, based upon the standard Plaintiff has cited in his Motion, this court concludes that Plaintiff's Motion is, in substance, a Rule 59(e) Motion to alter or amend the summary judgment decision. See Seng-Tiong Ho v. Taflove, 648 F.3d 489, 495 (7th Cir. 2011). Rule 59(e) was amended in 2009 to provide that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." Fed. R. Civ. P. 59(e). Plaintiff's Motion to Reconsider was filed within the time allowed under Rule 59(e).

In order to prevail on a Rule 59(e) motion, a plaintiff must clearly establish that there has been a manifest error of law or fact, or that newly discovered evidence precludes entry of judgment. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006); see also Taflove, 648 F.3d at 505. "A 'manifest error' is not demonstrated by the disappointment of the losing party. It is the 'wholesale disregard, misapplication, or failure to recognize controlling precedent.'" Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000), quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997). Therefore, it is not enough for a party to take "umbrage with the court's ruling and rehash[] old arguments." Oto, 224 F.3d at 606. This is because a Rule 59(e) motion does not give parties a "second chance" to prevail on the merits. Hutcherson v. Krispy Kreme Doughnut Corp., 803 F. Supp. 2d 952, 956 (S.D. Ind. 2011), citing Fannon v. Guidant Corp., 583 F.3d 995, 1002 (7th Cir. 2009). A judgment shall be altered or amended under Rule 59(e) in the limited circumstances where a court: "(1) patently misunderstood a party[;] or (2) made a decision outside the adversarial issues presented; or (3) made an error not of reasoning but of apprehension." Cnty. Materials Corp. v. Allan Block Corp., 436 F. Supp. 2d 997, 999 (W.D. Wis. 2006), citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); see also Hutcherson, 803 F. Supp. 2d at 956.

PLAINTIFF'S MOTION

In his Motion, Plaintiff argued that this court patently misunderstood and misconstrued Plaintiff's expert reports and arguments. Plaintiff contended that these patent misunderstandings caused this court to fail to properly consider and weigh the defects in the Profemur® prostheses with the alleged benefits of the Profemur® prostheses. In support of his argument, Plaintiff attached a letter from one of his experts, Carl Alstetter. Plaintiff also argued that Defendants' failure to supplement discovery regarding additional failure reports and subsequent investigations relating to the Profemur® prostheses, as well as information regarding additional claims and lawsuits, meant that this information was not available to ...


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