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Jeanes v. McBride

United States District Court, W.D. Louisiana

June 25, 2019

GREG MCBRIDE, ET AL., Defendants

         SECTION: “E” (4)



         Before the Court is Plaintiff Janet Jeanes' oral motion, made during the trial of this matter, for reconsideration of the Court's Order and Reasons of June 6, 2019 (“the June 6 Order”)[1] and its Supplemental Order and Reasons on the motion on June 18, 2019 (“the June 18 Supplemental Order”).[2] Both orders addressed Defendant Greg McBride's motion in limine to exclude the testimony of Plaintiff's expert Philip Beard. McBride orally opposed the motion for reconsideration. For the reasons that follow, the Court DENIES Plaintiff's motion for reconsideration.


         The factual background of this case and of Beard's proposed testimony is laid out in the June 6 Order.[3] In that order, the Court ruled that Beard may not testify at trial about the cost estimates made by James Decker. The Court noted that Beard did not independently perform any analysis of Decker's estimates, but rather copied them directly into his report. The Court found that he would be unable to explain the basis for the costs listed in Decker's estimates and that, instead, he would only be able to act as a mouthpiece or spokesperson for Decker.

         The Court also issued a Supplemental Order and Reasons on the motion on June 18, 2019 (“the June 18 Supplemental Order”).[4] In the June 18 Supplemental Order, the Court ruled that Beard may not rely on repair cost estimates from Rock Solid Foundations & Foundation Repairs (“Rock Solid”) and Reed Building Systems, Inc. (“Reed”) because (1) Beard did not disclose any opinions based on those estimates, (2) Beard may not act as a mouthpiece for Rock Solid or Reed, and (3) Beard has not established the estimates are reliable.[5]

         During trial on June 25, 2019, Jeanes moved, outside the hearing of the jury, for reconsideration of the June 6 Order and the June 18 Supplemental Order. She again argued the Court's ruling misinterprets Rule 703 of the Federal Rules of Evidence and constitutes reversible error. In support, she cites Trepel v. Roadway Exp., Inc.[6] and Ohio Envtl. Dev. Ltd. P'ship v. Envirotest Sys. Corp.[[7]]

         RULE 59(e) STANDARD

         A motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure “must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued.”[8] A motion for reconsideration, however, “is ‘not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of [the order].'”[9] “The Court is mindful that ‘[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.'”[10] “When there exists no independent reason for reconsideration other than mere disagreement with a prior order, reconsideration is a waste of judicial time and resources and should not be granted.”[11]

         In deciding motions under the Rule 59(e) standards, the Court considers the following factors:

(1) whether the movant demonstrates the motion is necessary to correct manifest errors of law or fact upon which the judgment is based;
(2) whether the movant presents new evidence;
(3) whether the motion is necessary in order to prevent manifest injustice; and
(4) whether the motion is justified by an intervening change in the controlling law.[12]

         Plaintiff argued the Court's order was reversible error because it misinterpreted Rule 703.

         Plaintiff appears to argue reconsideration of the Court's order is necessary to correct a manifest error of law.


         A district court is “best placed to evaluate” the reasonableness of an expert's reliance on facts or data.[13] Under Rule 703 of the Federal Rules of Evidence, expert witnesses may base opinions on facts or data that the expert “has been made aware of or personally observed, ” including otherwise inadmissible facts or data if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”[14] “Nevertheless, the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility.”[15] A district court also may exclude expert testimony when it is “based on insufficient, erroneous information.”[16] “[T]he ‘reasonable reliance' requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion.”[17]


         I. In the final analysis, Rule 703 does not apply because Beard did not opine about the amount of damages.

         In Beard's expert report, he describes the purpose of his investigation as follows:

The primary thrust of this investigation is to establish threshold limits with regard to structural integrity and workmanship. Based on said thresholds established and data gathered, conclusions and/or opinions will be offered concerning the structural integrity of the structure or that element of the structural system investigated and why said element was defective.[18]

         It is clear that Beard was retained to express opinions about structural integrity and workmanship. He merely inserts into his report, without discussion or analysis, Decker's five pages of estimates of the cost of repair under the heading “Estimated cost to repair all damages.”[19] At the conclusion of his report, Beard states, “The recommendations and costs of repair noted herein are created by the Contractors [sic] failure to provide the following minimum contract and workmanship requirements.”[20] Nowhere does Beard opine that these amounts represent the reasonable cost of repair of the defects in design and construction identified by him. Instead, he merely “notes” the costs of repair he says were estimated by Decker.

         Neither does Beard express his own opinion about the cost of repairs in his deposition. In his deposition, he testifies:

Q. The damage repair that you had an estimated cost of repair or damages. This estimate is not your estimate. Do you agree with that.
A. That's correct. I have a contractor that I've worked with before go and do the estimate based on the information in my report. . . .
Q. [Y]ou didn't do a cost takeoff to determine whether or not any of his numbers ...

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