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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 SHARON L ELLIOT, CASE NO. C19-563 MJP 11 Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION 12 v. 13 BNSF RAILWAY COMPANY, 14 Defendant. 15 16 THIS MATTER comes before the Court on Plaintiff’s Motion for Reconsideration. (Dkt. 17 No. 52.) Having reviewed the Motion, the Response (Dkt. No. 57), and all related papers, the 18 Court DENIES the Motion. 19 Plaintiff brings this lawsuit, alleging that during her deceased husband’s career working 20 for Defendant, he was exposed to toxins that caused or contributed to his death. (Dkt. No. 1.) 21 Plaintiff has repeatedly missed discovery deadlines in this matter, including the deadline for 22 expert witness disclosures. (See Dkt. No. 11; Dkt. No. 35, Ex. B.) In fact, Plaintiff did not 23 produce the report of her single expert witness, Dr. Ernest Chiodo, until several weeks after the 24 deadline and days after Defendant filed a Motion for Summary Judgment arguing that Plaintiff 1 did not have the necessary expert testimony to support her allegations. (Dkt. No. 51 at 2.) 2 Finding that Plaintiff’s untimeliness was neither justified nor harmless, on March 13, 2020 the 3 Court granted Defendant’s Motion to Strike Witnesses. (Dkt. No. 51 at 2.) Plaintiff now moves 4 for reconsideration, arguing that the deposition of Dr. Chiodo, taken on March 4, 2020—while

5 Defendant’s Motion to Strike was pending before the Court—remediates “most if not all 6 prejudice” caused by Plaintiff’s untimely disclosure. (Dkt. No. 52 at 2.) 7 Under Local Rule 7(h), “[m]otions for reconsideration are disfavored.” LR 7(h). “The 8 court will ordinarily deny such motions in the absence of a showing of manifest error in the prior 9 ruling or a showing of new facts or legal authority which could not have been brought to its 10 attention earlier with reasonable diligence.” Id.; see also Marlyn Nutraceuticals, Inc. v. Mucos 11 Pharma,

(9th Cir. 2009) (finding a motion for reconsideration warranted only 12 when a district court is presented with newly discovered evidence, committed clear error, or 13 when there is an intervening change in the controlling law). 14 Plaintiff contends that because Defendant had the opportunity to take Dr. Chiodo’s

15 deposition and will now be able to file motions to exclude his testimony and cross-examine him 16 at trial, any prejudice caused by Plaintiff’s late disclosure is remedied and this constitutes “new 17 evidence” under Local Rule 7(h). (Dkt. No. 52 at 2.) But as Defendant notes, the fact that the 18 deposition of Dr. Chiodo would remedy prejudice to the Defendant was already argued and 19 rejected by the Court, and Dr. Chiodo’s deposition occurred more than a week before the Court’s 20 Order, giving Plaintiff ample opportunity to supplement the record, which she failed to do. (Dkt. 21 No. 57 at 2.) Further, the substance of Dr. Chiodo’s testimony was not new, because his 22 testimony was required to be consistent with his report. (Id. (citing Kelly v. City of Oakland, 23

, *6 (N.D. Cal. 1997)).) To prevail on a motion for

24 1 reconsideration, the moving party must bring new facts that “could not have been brought to the 2 court’s attention earlier with reasonable diligence.” LCR(7)(h). Plaintiff has failed to do so 3 here. 4 Plaintiff’s Motion for Reconsideration also fails to address several issues cited in the

5 Court’s Order. First, the untimely disclosure of Dr. Chiodo’s opinions caused a delay in 6 scheduling his deposition, leaving Defendant’s experts unable to review and respond to Dr. 7 Chiodo’s deposition. (Dkt. No. 57 at 5-6.) The deposition also does nothing to cure the time and 8 effort Defendant expended in drafting its motion for summary judgment based on the lack of 9 expert testimony supporting Plaintiff’s allegations. (Dkt. No. 29.) Further, in his expert report, 10 Dr. Chiodo claims he reviewed three depositions, but the transcripts for those depositions were 11 not released until three days after he submitted his report, leading to questions about the value of 12 the report. (Dkt. No. 35, Ex. B at 2-3; Ex. D.) And finally, Plaintiff still has not provided any 13 reason for failing to meet the Court’s deadline in this matter. 14 Therefore, finding that Plaintiff has failed to present new facts or legal authority which

15 could not have been brought to the Court’s attention earlier with reasonable diligence, the Court 16 DENIES Plaintiff’s Motion for Reconsideration (Dkt. No. 52). 17 18 19 The clerk is ordered to provide copies of this order to all counsel. 20 Dated April 21, 2020.

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22 Marsha J. Pechman 23 Senior United States District Judge

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