Gougler v. Sirius Products, Inc.

• Decision Date: 20 May 2005
• Docket Number: No. CIV.A. 03-0583-WS-M.,CIV.A. 03-0583-WS-M.
• Citation: 370 F.Supp.2d 1185
• Parties: Gordon L. GOUGLER, as Personal Representative of the Estate of Linda J. Gougler, Deceased, Plaintiff, v. SIRIUS PRODUCTS, INC., and Wal-Mart Stores, Inc., Defendants.
• Court: U.S. District Court — Southern District of Alabama

370 F.Supp.2d 1185

Gordon L. GOUGLER, as Personal Representative of the Estate of Linda J. Gougler, Deceased, Plaintiff, v. SIRIUS PRODUCTS, INC., and Wal-Mart Stores, Inc., Defendants.

No. CIV.A. 03-0583-WS-M.

United States District Court, S.D. Alabama, Northern Division.

May 20, 2005.

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Charles H. Morris, III, Foley, AL, John W. Kelly, III, Selma, AL, for Plaintiff.

Alfred Dovbish, Tiburon, CA, Barry S. Marlin, Los Angeles, CA, Brian P. McCarthy, William Craig Hamilton, Karen Tucker Luce, Michael D. Knight, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL, for Defendants.

ORDER

STEELE, District Judge.

This matter is before the Court on defendants' Motion for Reconsideration of Order Partially Denying Summary Judgment (doc. 89). The Motion has been briefed and is ripe for disposition at this time.

I. Background.

Linda J. Gougler ("Mrs.Gougler") died on June 20, 2002, shortly after using certain cleaning products to clean her bathroom floor. Her husband, Gordon L. Gougler, the personal representative of her estate, brought this action against defendants Sirius Products, Inc. and Wal-Mart Stores, Inc., alleging state-law claims under the Alabama Extended Manufacturers' Liability Doctrine ("AEMLD") and for negligent, wanton and wrongful failure to warn. At the heart of this lawsuit is plaintiff's contention that Mrs. Gougler's death was caused by inhalation of toxic fumes produced by a rust remover called "Zap! Professional Restorer" ("Zap!"), used in tandem with bleach or other cleaning products. Plaintiff maintained that Zap! was defective in the following two respects: (i) its label was inadequate to warn Mrs. Gougler of its hazardous properties, and (ii) the product was unreasonably dangerous regardless of its label, because it had been defectively designed such that its ordinary use resulted in emission of potentially fatal fumes. At the time of Mrs. Gougler's death, Zap! was distributed by defendant Sirius and sold at retailers, including defendant Wal-Mart, where Mrs. Gougler was allegedly an avid shopper.

On March 17, 2005, the undersigned entered a 31-page Order (doc. 81) granting defendants' Motion for Summary Judgment in part, but also denying it in part. In particular, the Court found that all of plaintiff's claims predicated on a failure to warn or deficient labeling theory were preempted by the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261 et seq. ("FHSA"). The Court also ruled that plaintiff's AEMLD claim was not preempted to the extent that it was grounded on a design defect theory relating to the types and concentrations of acids found in Zap!, the reactivity of those acids to other common household cleaners, the product's propensity to release deadly fumes and odors, and the masking of warning odors from those acids via a deceptively pleasant wintergreen aroma.

On April 15, 2005, defendants submitted a Motion to Reconsider (doc. 89) assigning error to the summary judgment Order in three respects: (i) the Order recognized a design defect dimension to the AEMLD claim even though plaintiff had proceeded exclusively on a failure to warn theory; (ii) the Order found that the AEMLD defective design claim was not preempted by the FHSA; and (iii) plaintiff failed to show substantial evidence that a safer, practical, alternative design for Zap! existed at relevant times.

II. Propriety of Reconsideration.

In the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly. See United States v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812 F.Supp. 522, 524 (E.D.Pa.1992); Spellman v. Haley, 2004 WL 866837, *2 (M.D.Ala. Feb.22, 2002) ("litigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling"). Indeed, as a general rule, "[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice." Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala.2003). It is well established in this circuit that "[a]dditional facts and arguments that should have been raised in the first instance are not appropriate grounds for a motion for reconsideration." Rossi v. Troy State University, 330 F.Supp.2d 1240, 1249 (M.D.Ala.2002) (denying motion to reconsider where plaintiff failed to submit evidence in question prior to entry of order and failed to show good cause why he could not have done so).¹ Furthermore, the Eleventh Circuit has declared that "a motion to reconsider should not be used by the parties to set forth new theories of law." Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir.1997); see also Russell Petroleum Corp. v. Environ Products, Inc., 333 F.Supp.2d 1228, 1234 (M.D.Ala.2004) (relying on Mays to deny motion to reconsider where movant advanced several new arguments); Coppage v. U.S. Postal Service, 129 F.Supp.2d 1378, 1379-81 (M.D.Ga.2001) (similar).

Notwithstanding these limitations, reconsideration is appropriate to correct manifest errors of law or fact. See Rule 60(b), Fed.R.Civ.P.; Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir.1996) ("Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence."); Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala.2003) ("A motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice."). The grant or denial of a motion to reconsider is left to the discretion of the district court. See Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir.2000).

Upon review of defendants' Motion, it is evident that they seek reconsideration based solely on newly-raised legal arguments relating to the viability of the design defect claim, which arguments could and should have been presented in their Rule 56 submissions. All of these contentions were available previously. Their only explanation for failure to articulate them in their original summary judgment filings is their mistaken belief that "Plaintiff's AEMLD claim was based exclusively on a failure to adequately warn theory." (Motion to Reconsider, at 2.) This justification is unconvincing, given the prominent indicia in plaintiff's pleadings, discovery responses and summary judgment briefs that his AEMLD claim was rooted in both failure to warn and defective design theories. Therefore, it would be a proper exercise of judicial discretion to deny reconsideration outright on the basis that a motion to reconsider is generally not proper if it is brought for the sole purpose of interposing previously available legal theories.

Notwithstanding the foregoing, the Court finds that pragmatic considerations of efficiency and judicial economy militate in favor of addressing the merits of defendants' Motion to Reconsider. The Motion rests primarily on the purely legal question of the scope of FHSA preemption. No new factual forays are necessary to resolve that issue. Moreover, although denial of reconsideration would be justified under the standard articulated above, such denial would merely postpone the inevitable. In that event, the preemption defense would undoubtedly feature prominently in defendants' trial strategy, presumably in the form of a Rule 50 motion for judgment as a matter of law at the close of plaintiff's evidence. Rather than unnecessarily prolonging the suspense as to the ultimate fate of the preemption question until trial, the Court deems it beneficial for all concerned to confront that legal issue now. For that reason, the Court exercises its discretion in favor of granting defendants' Motion for Reconsideration, and will revisit the March 17 Order in light of the specific legal issues presented in the Motion.²

III. Analysis upon Reconsideration.

A. Whether the Design Defect Claim was Properly Raised.

Antecedent to addressing the preemption issue at the core of the Motion for Reconsideration, the parties spar as to whether the AEMLD "unreasonably dangerous" claim alleging a design defect is even part of this lawsuit. (Motion, at 2-3; Opposition Brief, at 13-14.)³ Defendants are correct that plaintiff could have articulated this theory more concretely; nonetheless, plaintiff's discovery responses and the report of parties' planning meeting were unquestionably sufficient to put defendants on notice of the defective design angle to plaintiff's AEMLD claim.

Back on October 23, 2003, the parties submitted a Rule 26(f) Report of Parties' Planning Meeting (doc. 13). In that Report, plaintiff indicated that "[a]s a result of using [Zap!], Linda J. Gougler was exposed to toxic fumes from which she died on June 20, 2002 as a result of the product's defective or unreasonably dangerous condition." (Doc. 13, at 2.) Although the words "design defect" are not used, this statement fairly conveys plaintiff's position that the propensity to emit toxic fumes is Zap!'s defective or unreasonably dangerous condition. In that same document, defendants evinced their understanding that plaintiff was pursuing this theory. Specifically, defendants asserted that "the product at issue in this case was not in a defective or unreasonably dangerous condition when put to its intended use," and that "[t]he product also adequately warned about hazards associated with its use." (Id. at 3 (emphasis added).) The Rule 26(f) Report verifies defendants' understanding at the inception of this action that plaintiff's AEMLD claim incorporated allegations of a defective product and also a failure to adequately warn.

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