Opinion
No. CV 12-280-TUC-CKJ
04-05-2016
Allan K. Morgal, Plaintiff, v. Edward Williams, Defendant.
ORDER
Pending before the Court is Plaintiff's Motion for Reconsideration of Court's Order Granting Defendant's Motion in Limine # 1 to Preclude Plaintiff's Expert Eldon Vail's Opinions and Report (Doc. 184). A response has not been filed. See LRCiv 7.2(g) (no response is to be filed unless ordered by the court).
The Court has discretion to reconsider and vacate an order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S. 1171 (1986). However, motions for reconsideration are disfavored. See generally Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Indeed, a motion for reconsideration is not to be used to ask a court "to rethink what the court had already thought through - rightly or wrongly." Above the Belt, Inc. v. Mel Bohanan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983) (limiting motions for reconsideration to cases where the court has patently misunderstood a party, where the court has made a decision outside the adversarial issues presented to the court, where the court has made an error not of reasoning but of apprehension, or where there has been a controlling or significant change in the law or facts since the submission of the issue to the court); see also United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998).
Plaintiff asserts the Court incorrectly equated the two experts' proposed testimony in finding that both should be excluded, does not give due credit to contrary Ninth Circuit law, and leaves to chance whether jurors' "common sense" will be "informed by an accurate understanding of the procedures and policies for handcuffing and use of force." Motion (Doc. 184), p. 1. Plaintiff's expert, Eldon Vail, is offered to provide testimony as to the evaluation of the factors to consider where force is excessive, "the relationship between the need for force and the amount of force used, the extent of injuries, the threat reasonably perceived by responsible officers, attempts to mitigate the amount of force used, and whether force was used in a good faith effort to maintain or restore discipline." Response to Motion in Limine (Doc. 162), p. 2. Although Plaintiff asserts such testimony does not weigh the credibility (rather, Plaintiff asserts Mr. Vail accepts the facts as alleged by Plaintiff for purposes of this opinion) and does not offer an opinion on the ultimate issue, it appears that Mr. Vail's opinions either weigh the credibility of Plaintiff's allegations or, if those allegations are accepted, gives an opinion as to how the jury should view those facts. The Court finds that, in this case which does not present complex facts, this testimony would improperly invade the role of the jury and would not properly assist the jury in assessing the facts.
Morever, Plaintiff asserts Mr. Vail would also offer opinions about the prisoner grievance process. The Court has previously determined that the expert's opinion for offering opinions regarding the Arizona Department of Corrections' ("ADC") failure to fully investigate the incident should be precluded. Similarly, Mr. Vail's opinions as to the prisoner grievance process is not relevant to a determination of whether Defendant in this case applied force in a good-faith effort to maintain or restore discipline or whether Defendant maliciously and sadistically applied force for the purpose of causing harm.
The Court finds Plaintiff has not established reconsideration of this issue is appropriate. Rather, Plaintiff is requesting this Court to rethink what this Court has already thought through.
Accordingly, IT IS ORDERED Plaintiff's Motion for Reconsideration of Court's Order Granting Defendant's Motion in Limine # 1 to Preclude Plaintiff's Expert Eldon Vail's Opinions and Report (Doc. 184) is DENIED.
DATED this 5th day of April, 2016.
/s/_________
Cindy K. Jorgenson
United States District Judge