Opinion
Civil Action Number 04-220 SECTION "L" (1).
August 25, 2004
ORDER REASONS
Before the Court are the Plaintiffs' Motion for Reconsideration of Plaintiffs' Motion for Voluntary Dismissal and, in the alternative, Plaintiffs' Motion to Designate Order for Immediate Appeal. The matter came before the Court with oral argument on August 18, 2004, at 9:00 a.m. The Court now issues its findings.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2004, Plaintiffs filed this suit in Civil District Court for the Parish of Orleans against four Defendants seeking damages for injuries allegedly arising out of the application of the medical device Intergel to the inside of Tammy Philibert's abdomen when she underwent abdominal surgery to remove endometriosis. In their suit, Plaintiffs, residents and domiciliaries of Meraux, Louisiana, named the following four companies as Defendants:
(1) Lifecore Biomedical, Inc., Minnesota corporation with its principal place of business in Chaska, Minnesota: manufactured Intergel
(2) Ethicon, Inc., New Jersey corporation with its principal place of business in Somerville, New Jersey: distributed and marketed Intergel through its division Gynecare Worldwide. Ethicon is a subsidiary of Johnson Johnson
(3) Johnson Johnson, New Jersey corporation with its principal place of business in New Brunswick, New Jersey: parent of Ethicon
(4) PSS World Medical, Inc., Florida corporation with its principal place of business in Florida. Authorized to do and doing business in Louisiana. No indication of PSS's relationship to Intergel.
In their state court complaint, Plaintiffs requested service on PSS through its agent for service of process. Plaintiffs requested service on the remaining three Defendants via the Louisiana Long Arm Statute. Plaintiffs claim and the record reflects that service was only effectuated on PSS.
On January 26, 2004, PSS timely removed the matter to this Court pursuant to the Court's diversity jurisdiction. Shortly thereafter, PSS filed a Motion for Extension of Time to Respond. However, before PSS answered, Plaintiff moved for voluntary dismissal of PSS, which was properly granted by the Court under Federal Rule of Civil Procedure 41(a)(1) on March 15, 2004. Similarly, before Johnson Johnson and Lifecore answered, Plaintiffs moved for voluntary dismissal of these Defendants, which was granted by the Court on June 14, 2004. However, despite the fact that Ethicon was not served, Ethicon filed an answer to the complaint on June 7, 2004. Thus, Ethicon remains as the only Defendant in the suit before this Court.
Shortly after PSS was dismissed, Plaintiffs retained Florida counsel, Montgomery Larson, to represent them regarding the alleged incident. On March 5, 2004, Plaintiffs filed a separate lawsuit in the 15th Judicial Circuit in Palm Beach County, Florida, in which Plaintiff again sued Ethicon, JJ, and Lifecore for the alleged damages she sustained from Intergel. In the Florida lawsuit, the Plaintiffs did not sue PSS, but did sue another company, Vital Pharma, Inc., a Florida corporation. According to the Defendants in this case, Plaintiffs did not request service of the Florida suit on any of the defendants, and no defendant has made an appearance.
Plaintiffs claim that Montgomery Larson represent many other plaintiffs for injuries arising out of their exposure to Intergel.
Both lawsuits arise from the same operative facts and make essentially identical claims for relief. In the Florida complaint, the Plaintiffs allege that venue and jurisdiction are proper in Florida because Defendant Vital Pharma is a Florida corporation who packaged and distributed Intergel from its Palm Beach County Florida headquarters. In the Florida suit, the Plaintiff seeks damages for:
(1) general negligence;
(2) products liability — including failure to warn, defect in manufacturing, defect in design, breach of express warranty, and breach of implied warranty;
(3) intentional misrepresentation;
(4) negligent misrepresentation;
(5) loss of consortium; and
(6) attorney's fees
Furthermore, Plaintiffs' allegations give rise to a claim for punitive damages under Florida law. Under Louisiana law, Plaintiff's claims arise under the Louisiana Products Liability Act, which provides the exclusive theories of liability against manufacturers for the recovery of damages caused by their products. La.R.S. § 9:2800.52. Thus, under the LPLA the Plaintiff would be required to show that her damages were caused by a product that was unreasonably dangerous in construction or composition, in design, because of an inadequate warning, or because of nonconformity with an express warranty. La.R.S. § 9:2800.54. The LPLA does not recognize a general negligence claim, fraud by misrepresentation, negligent misrepresentation, breach of implied warranty, or strict liability. The LPLA also does not authorize the award of punitive damages or attorney's fees.
Plaintiffs claim that after they filed the Florida suit, no other action was taken on this suit. As a result of no activity, on May 17, 2004, this case was placed on the call docket to be held on June 23, 2004. Plaintiffs stated that they "intended to submit a Motion to Dismiss without Prejudice" prior to the date of the call docket to have the matter removed completely from the Court's docket. However, as stated above, Ethicon filed an answer on June 7, 2004, and the matter was removed from the call docket.
On July 15, 2004, Plaintiffs filed a motion seeking to dismiss Ethicon without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). Clearly, Plaintiffs wish to pursue their case in the Florida forum. Unlike the other Defendants, Ethicon opposed the Motion to Dismiss. Following oral arguments held on July 21, 2004, this Court denied Plaintiffs' Motion for Voluntary Dismissal finding that a Florida court would likely apply Florida law, thus subjecting Ethicon to clear legal prejudice by stripping Ethicon of the defenses available under the Louisiana Products Liability Act.
Plaintiffs now seek reconsideration of their motion, in light of Plaintiffs' agreement to waive any punitive damages that may be granted against Ethicon by a Florida court. In the alternative, Plaintiffs move for the denied motion to be designated as immediately appealable.
II. LAW AND ANALYSIS
A. PLAINTIFFS' MOTION FOR RECONSIDERATION OF MOTION FOR VOLUNTARY DISMISSAL
The Federal Rules of Civil Procedure do not expressly recognize a motion to reconsider, however, the Fifth Circuit has treated motions to reconsider as either motions to alter or amend judgement pursuant to Rule 59(e) or motions for relief from judgment pursuant to Rule 60, depending upon the time at which the motion is filed. Lavespere v. Niagra Machine Tools Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); Green v. United States of America, 2003 WL 21500553, at *2 (E.D. La. 2003) (Duval, J.). If the motion for reconsideration is filed within ten (10) days of rendition of judgment, then Rule 59(e) applies. Otherwise, Rule 60 is applicable. Id. Plaintiffs filed their Motion for Reconsideration on July 30, 2004, less than 10 days after the July 22, 2004 order denying voluntary dismissal, therefore, the motion will be treated as arising under Rule 59(e). District judges have broad discretion in deciding whether to grant a motion to reconsider under Rule 59(e) and a denial will be reviewed on appeal for abuse of discretion.
This District has repeatedly held that, in order to obtain relief under Rule 59(e), the movant (1) must show that the motion is necessary to correct a manifest error of law or fact, (2) must present newly discovered or previously unavailable evidence, (3) must show that the motion is necessary to prevent manifest injustice, or (4) must show that the motion is justified by an intervening change in the controlling law. Jackson v. F.I.E. Corp., 2004 WL 223982, at *1 (E.D. La. 2004) (Lemmon, J.); Robintee v. State Farm Mut. Auto. Ins. Co., 2003 WL 292306, at *1 (E.D. La. 2003) (Vance, J.); United States v. Adams, 2002 WL 826770, at *1 (E.D. La. 2002) (Vance, J.). Plaintiffs have not presented any manifest error of law or fact nor are they arguing any change in the controlling law. However, prongs two (2) and three (3) of the Rule 59(e) analysis warrant some discussion.
Plaintiffs seek to introduce affidavits waiving any possible right to seek punitive damages from Ethicon. However, Plaintiffs' waiver is not the sort of "newly discovered or previously unavailable evidence" that warrants the granting of a motion for reconsideration. Instead, Plaintiffs are using the waiver to impose upon themselves the sort of curative conditions that were within the Court's discretion to craft in lieu of denying Plaintiffs' Motion for Voluntary Dismissal. See Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002). "If [a] district court concludes that granting the motion [for voluntary dismissal] unconditionally will cause plain legal prejudice, it has two options, it can deny the motion outright or it can craft conditions that will cure the prejudice." Id. at 317-318. The Fifth Circuit has consistently held that a defendant suffers legal prejudice if the dismissal would result in the defendant's loss of an absolute defense. Phillips v. Illinois Central, 874 F.2d 984, 987 (5th Cir. 1989). When considering Plaintiffs' Motion for Voluntary Dismissal, the Court found that the Florida court would likely apply Florida law — since at least one of the defendants in that case is a Florida resident — thus stripping Ethicon of the defenses available under the Louisiana Products Liability Act. Ethicon claimed that, in the Florida lawsuit, Plaintiffs seek damages for causes of action that exceed the LPLA's exclusive theories of recovery, such as general negligence, breach of implied warranty, and negligent misrepresentation. Plaintiffs' waiver of punitive damages only remedies a portion of the prejudice to Ethicon recognized by the Court. During oral argument at the initial motion, Plaintiffs had the opportunity to convince the Court that a waiver of any punitive damage award in the Florida lawsuit would erase the prejudice to Ethicon. However, Plaintiffs failed to do so, and this Court chose to deny the motion to dismiss outright rather than to impose any conditions to cure the prejudice to Ethicon. Plaintiffs' affidavits waiving punitive damages are not new evidence requiring the Court to reconsider its denial of Plaintiff's Motion for Voluntary Dismissal.
Plaintiffs also have not asserted that reconsideration is necessary to prevent manifest injustice. To the contrary, the Court finds that granting Plaintiffs' Motion for Voluntary Dismissal would subject the Defendant to injustice. It is appropriate if not required, in considering a Rule 41(a)(2) motion to dismiss, for the Court to consider the interests of the defendant, "for Rule 41(a)(2) exists chiefly for protection of defendants." Fisher v. Puerto Rico Marine Management, Inc., 940 F.2d 1502 (11th Cir. 1991). In this case, the Plaintiffs are Louisiana citizens, whose surgery occurred in Louisiana, and whose injuries were sustained in Louisiana. Furthermore, the device at issue was obtained in Louisiana and Defendant Ethicon was properly served in Louisiana. Plaintiffs have argued that because of these factors, Louisiana law would apply to Defendant Ethicon in a Florida court proceeding. However, one of the defendants in the Florida court proceeding is Vital Pharma, a Florida corporation to which only Florida law can be applied. Therefore, if this Court were to allow Ethicon to be dismissed, one of two situations would arise. First, the Florida court may decide to apply two sets of law — Florida law and Louisiana law — during the Florida trail. This Court believes that this outcome would prejudice Ethicon because the Florida jury would hear evidence regarding punitive damages under Florida law in the same trial in which such evidence is not applicable to Ethicon. To avoid this confusion, the Florida court may decide to apply Florida law to all defendants, thus stripping Ethicon of its defenses under the Louisiana Products Liability Act. In either situation, Ethicon will suffer prejudice sufficient to warrant the denial of Plaintiff's motion to dismiss.
B. PLAINTIFFS' ALTERNATIVE MOTION TO DESIGNATE ORDER AS IMMEDIATELY APPEALABLE
Interlocutory appeals are "exceptional" and are not to be used "simply to determine the correctness of a judgment." Clark-Dietz Assocs.-Eng'rs v. Basic Construc. Co., 702 F.2d 67, 68-69 (5th Cir. 1983). Therefore, pursuant to 28 U.S.C. § 1292, an order may be designated for interlocutory appeal only when the movant shows that such order involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id. at 69. (numbering added). Plaintiffs must satisfy each element of the standard for an interlocutory appeal to be appropriate.
Ordinarily, issues involving "the exercise of judicial discretion do not fall within the ambit of 'controlling questions of law.'" Texaco, Inc. v. Duhe, 44 F. Supp.2d 809, 812 (W.D. La. 1998), citing, Garner v. Wolfinbarger, 430 F.2d 1093, 1097 (5th Cir. 1970). Plaintiffs identify the controlling question of law as what constitutes a clear legal prejudice under Federal Rule of Civil Procedure 41(a)(2). "Usually a court will grant a Rule 41(a)(2) motion providing for a dismissal without prejudice unless the defendant will suffer clear legal prejudice." Phillips, 874 F.2d at 986. It has long been settled that the district court has broad discretion to grant a motion under Rule 41(a)(2). Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990). However, the scope of the Court's discretion in defining legal prejudice sufficient to warrant the denial of a motion for voluntary dismissal is unclear. Certainly, there are specific types of prejudice that the Fifth Circuit has identified as clear or plain legal prejudice, such as the loss of a statute of limitations defense. Phillips, 874 F.2d 984. Likewise, the Fifth Circuit has also held that the mere prospect of a second lawsuit or the fact that a plaintiff may obtain some tactical advantage is insufficient to establish legal prejudice. 9 Wright Miller, Federal Practice and Procedure § 2364, at 165 (1971); Manshack., 915 F.2d at 174. These parameters set fourth by the Fifth Circuit leave open the possibility that the Fifth Circuit intended to narrow the district courts' discretion in identifying situations that rise to the level of plain legal prejudice. Therefore, whether this Court correctly identified a clear legal prejudice to Ethicon may be a controlling question of law, rather than merely the Court's proper exercise of judicial discretion.
Plaintiffs argue that there is substantial ground for disagreement over whether a possible claim for damages not plead in the original complaint filed in another jurisdiction rises to the level of clear legal prejudice sufficient to warrant denial of plaintiffs' Motion for Voluntary Dismissal. "Difference of opinion refers to an unsettled state of law or judicial opinion, not mere discontent by the appealing party." Babcock Wilcox v. Southern Indiana Gas and Electric Co., 2004 WL 626288, at *2 (E.D. La. 2004), citing, In re Harken, 1999 WL 64955, at *2 (E.D. La. 1999). While it is well settled in the Fifth Circuit that voluntary dismissals will be granted unless there is plain prejudice to the defendant, it is not clearly established that the prejudice recognized by this Court is sufficiently plain to justify overriding the generous policy of granting voluntary dismissals under Rule 41(a)(2). The Court believes that it has recognized a prejudice more substantial than "the mere prospect of a second lawsuit." It is the opinion of this Court that the possibility of Ethicon either being stripped of its defenses under the LPLA or being subjected to a trial in which evidence relevant to proof under Florida law and evidence of punitive damages will go to the jury amounts to clear legal prejudice to Ethicon. This prejudice goes beyond "some tactical advantage" to the Plaintiffs. However, as previously stated, there is not enough settled law in this area to refute Plaintiffs's argument that there is substantial ground for disagreement on this matter.
On the issue of whether an interlocutory appeal would materially advance the ultimate termination of the litigation, the Plaintiffs argue that, if they are successful on appeal, litigation in this Court will terminate. However, Ethicon responds that litigation will only terminate in this Court, but Ethicon will still be subject to a lawsuit in Florida. Furthermore, if Plaintiffs are unsuccessful on appeal, litigation in this Court will resume. It is unclear whether this Court should only look to the termination of litigation in this jurisdiction or whether the Court should also consider Ethicon's exposure to litigation in Florida. However, "[a] court should grant an interlocutory appeal if a denial would result in wasted litigation and expense." Babcock Wilcox, 2004 WL at *2. The Court recognizes that the litigation of this case will require several expert witnesses and extensive witness testimony. If the Court were to deny the certification for interlocutory appeal only to have Plaintiffs' Motion for Voluntary Dismissal granted on an appeal on the merits of the case, the parties would have wasted a significant amount of time, energy, and expense litigating the case in this Court and would then have to re-litigate the case in the Florida court. For the sake of "judicial economy and the interests of the parties in obtaining an overall conclusion of the proceedings," an interlocutory appeal is appropriate. Id.
III. CONCLUSION
For the foregoing reasons, the Plaintiffs' Motion for Reconsideration of Motion for Voluntary Dismissal is hereby DENIED. Furthermore, Plaintiffs' Motion to Designate Order for Immediate Appeal is GRANTED.