Rimbert v. Lilly

Decision Date03 August 2011
Docket NumberNo. 09–2307.,09–2307.
Citation647 F.3d 1247
PartiesMark Gilbert RIMBERT, individually and as Personal Representative of the Estates of Gilbert John Rimbert and Olivia Acosta Rimbert, deceased, Plaintiff–Appellant,v.ELI LILLY AND COMPANY, Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Arnold Anderson Vickery, Vickery, Waldner & Mallia, LLP, Houston, TX (Earl Landers Vickery, Austin, TX, with him on the briefs), for PlaintiffAppellant.Andrew See, Shook, Hardy & Bacon, LLP, Kansas City, MO (Christopher P. Gramling and Julia C. Walker, Shook, Hardy & Bacon, LLP, Kansas City, MO; Thomas A. Outler, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, with him on the brief), for DefendantAppellee.Before MURPHY, McKAY, and O'BRIEN, Circuit Judges.MURPHY, Circuit Judge.I. Introduction

Shortly after Mark Rimbert's father began taking Prozac, he killed his wife and himself. Rimbert brought a wrongful death action against Eli Lilly, the manufacturer of Prozac. After discovery, Eli Lilly moved for summary judgment on various grounds and to exclude the testimony of Rimbert's sole expert witness on the question of causation. Those motions were, in all relevant parts, denied by the district judge who was initially assigned the case. The case was thereafter reassigned, and Eli Lilly moved for reconsideration of the prior rulings. The second district judge granted Eli Lilly's motion to exclude Rimbert's expert witness. Rimbert immediately moved for a new scheduling order allowing him time to name a new expert, which the district court denied. The district court then entered summary judgment for Eli Lilly, concluding that, without the expert's testimony, Rimbert could not put forth any evidence Prozac caused Rimbert's father to commit the murder-suicide.

Rimbert appeals the order excluding the testimony of his expert witness. He also appeals the order denying additional time to name a new expert and the resulting entry of summary judgment for Eli Lilly. Exercising jurisdiction under 28 U.S.C. § 1291, this court AFFIRMS the order excluding the testimony, but REVERSES the order denying additional time and corresponding entry of summary judgment. The matter is REMANDED to the district court for additional proceedings consistent with this opinion.

II. Background

Rimbert's father was diagnosed with moderate depression and prescribed Prozac. The initial dose was then increased, and shortly thereafter his father committed the murder-suicide. Rimbert brought this wrongful death suit against Eli Lilly, the maker of Prozac, alleging the use of Prozac caused Rimbert's father to take his own and his wife's lives.

After discovery, Eli Lilly filed three dispositive motions: (1) a motion for summary judgment based on federal preemption, (2) a motion for summary judgment on all Rimbert's claims based on evidentiary sufficiency, and (3) a motion to exclude the testimony of Rimbert's sole expert witness under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After reading the motions, the first district judge to whom the case was assigned made certain disclosures of a personal nature to the parties. He informed the parties he did not believe the circumstances required him to recuse himself from the matter, but offered to have the case reassigned if any party was uncomfortable with his participation. Neither party requested reassignment.

The judge then ruled on Eli Lilly's motions. First, he granted in part and denied in part Eli Lilly's summary judgment motion concerning evidentiary sufficiency, allowing the majority of Rimbert's claims to proceed. Second, he denied Eli Lilly's Daubert motion. Finally, he denied Eli Lilly's motion for summary judgment based on federal preemption. The last of these orders was issued on October 2, 2008. That same day, a pretrial conference was held and the trial date was moved from October 20, 2008, to December 1, 2008, by agreement of the court and the parties.

On October 8, 2008, the district judge made a second disclosure of a personal nature involving a circumstance that had arisen, which, although new, related to the circumstances described in the prior disclosure. Again, the judge indicated he believed he was not required to recuse himself, but offered to have the case reassigned if either party so requested. This time, Eli Lilly requested reassignment and the case was reassigned on October 9, 2008. The same day the case was reassigned, the new district judge vacated the remaining schedule, including the dates for pretrial conferences, pretrial order, jury selection, and trial.

On November 9, 2008, Eli Lilly moved to renew its previous motions or, in the alternative, to certify the orders for interlocutory appeal. On July 21, 2009, the second judge granted Eli Lilly's motion to reconsider the Daubert ruling, reversed the first judge's decision, and excluded from trial the testimony of Rimbert's only causation expert. The second judge did not hold another Daubert hearing, but rather relied on the same evidence, including the transcript of the initial Daubert hearing, as was considered in the first ruling. On July 24, 2009, Rimbert filed a motion for a new scheduling order, in which he requested a new deadline to designate a substitute expert witness. Rimbert suggested a period of sixty days be allowed. Eli Lilly opposed the motion and urged the district court to enter summary judgment in its favor, as the parties acknowledged without an expert witness Rimbert could not establish causation. The district court denied Rimbert's motion, concluding Rimbert had not shown good cause for a modification of the scheduling order under Fed.R.Civ.P. 16(b)(4), and consequently entered summary judgment for Eli Lilly. This appeal followed.

III. Discussion1. Reconsideration of the Daubert Ruling

Rimbert first challenges the grant of Eli Lilly's motion to reconsider the initial judge's Daubert ruling. Rimbert argues that the doctrine of law of the case should apply to constrain a successive district judge's ability to revisit discretionary, interlocutory decisions made by prior judges.

“The law of the case ‘doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir.1991) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). This doctrine is designed to promote finality and prevent re-litigation of previously decided issues, but does not serve to limit a court's power. Wilson v. Meeks, 98 F.3d 1247, 1250 (10th Cir.1996). When law of the case doctrine applies, three circumstances generally warrant departure from the prior ruling: (1) new and different evidence; (2) intervening controlling authority; or (3) a clearly erroneous prior decision which would work a manifest injustice. Id.

This court, however, has declined to apply these limitations to rulings revisited prior to entry of a final judgment, concluding that district courts generally remain free to reconsider their earlier interlocutory orders.” Been v. O.K. Indus., 495 F.3d 1217, 1225 (10th Cir.2007); see Elephant Butte Irrigation Dist. v. U.S. Dep't of Interior, 538 F.3d 1299, 1306 (10th Cir.2008) ([E]very order short of a final decree is subject to reopening at the discretion of the district judge.” (quotation omitted)); Fed.R.Civ.P. 54(b) ([A]ny order ..., however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”). This principle remains true even when a case is reassigned from one judge to another in the same court: [T]he [law of the case] doctrine does not bind a judge to following rulings in the same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the party seeking the benefit of the doctrine.” United States v. Johnson, 12 F.3d 1540, 1544 (10th Cir.1993). The relevant prejudice is limited to lack of sufficient notice that one judge is revisiting the decision of a prior judge and the opportunity to be heard with respect to the new ruling. Id.

Rimbert urges the adoption of a position suggested by the Seventh Circuit, under which law of the case principles would constrain a district judge's power to revisit a prior judge's interlocutory ruling when that ruling is discretionary. See Williams v. Comm'r of Internal Revenue, 1 F.3d 502, 503 (7th Cir.1993). Rimbert argues discretionary decisions should be treated differently because, while two judges may come to different conclusions, if the decision is reviewable only for abuse of discretion, neither may have committed reversible error. See id. Revisiting the initial decision in those circumstances, he contends, allows an unfair second bite of the apple with potentially no recourse on appeal.

Rimbert's argument is foreclosed by this court's precedent. In Wilson v. Merrell Dow Pharmaceuticals, Inc., this court considered the ruling of a district judge in precisely these circumstances. 160 F.3d 625, 628 (10th Cir.1998). There, the initially assigned judge twice denied the defendant's motion for summary judgment based on an argument that the testimony of the plaintiff's expert was not admissible under Daubert. Id. at 627. When the case was reassigned, the second judge entertained a motion to reconsider the previous ruling and granted the summary judgment motion on the Daubert issue. Id. The plaintiff argued on appeal that law of the case doctrine should apply to constrain the second judge's reconsideration of the earlier Daubert ruling, but this court rejected that argument, instead reviewing that ruling for abuse of discretion. Id. at 628–29. Accordingly, Rimbert's argument that law of the...

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