United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE
Federal Tort Claims Act (“FTCA”) case is before
the Court on the “Motion for Relief From Order”
(“Motion”) [Doc. # 2');">22');">2] filed by Plaintiff Brenda
Akpan, to which Defendant United States of America filed an
Opposition [Doc. # 2');">25]. Plaintiff seeks reconsideration of
the Court's Memorandum and Order [Doc. # 17] entered
December 2');">21, 2');">2017. The Court denies the Motion.
April 15, 2');">2014, Plaintiff was driving her vehicle when it was
struck by a U.S. Postal Service delivery vehicle. Plaintiff
was examined at the scene by first responders from the
Cy-Fair Volunteer Fire Department (“Cy-Fair
F.D.”). Plaintiff complained of head and right knee
pain, and asked to be transported to Houston Methodist West
Hospital (“Hospital”). Plaintiff was examined at
the Hospital and released the same day.
filed this FTCA lawsuit on October 5, 2');">2016. She claimed
damages based on injuries to her left knee, neck and lower
back. Plaintiff failed to designate experts and provide
expert reports by the Court-imposed deadline. Following the
close of discovery, Defendant filed a Motion for Summary
Judgment and a Motion for Summary Judgment on Damages.
Plaintiff then filed a Motion for Leave to Designate Expert
Witnesses late, which was denied in the December 2');">21, 2');">2017
Memorandum and Order. Plaintiff does not seek reconsideration
of this ruling.
Court noted in its prior ruling that Plaintiff had an
extensive history of injuries that could be pre-existing or
alternative causes for the damages she claimed in this case.
Therefore, the Court held that Plaintiff needed expert
testimony to establish the causal connection between the
motor vehicle accident in this case and the injury to her
left knee, neck and back. The only exception, the Court held,
was Plaintiff's ability to provide non-expert testimony
regarding the causal connection between the accident and the
treatment by the Cy-Fair F.D. at the scene and at the
Hospital on the date of the accident, something within the
common experience of a lay witness. Plaintiff seeks
reconsideration of this ruling, arguing that Plaintiff should
be allowed to present and rely on her own testimony regarding
the causal connection between the motor vehicle accident on
April 15, 2');">2014, and her alleged left knee, neck and back
Court also noted that Plaintiff failed to present evidence
that any charges for the medical treatment she received on
the date of the accident were reasonable and necessary.
Therefore, the Court limited Plaintiff to her own testimony
regarding the pain and discomfort she experienced that day in
connection with the accident. Plaintiff seeks reconsideration
of the Court's ruling, arguing that she should be
permitted to rely on affidavits obtained pursuant to Section
18.001 of the Texas Civil Practices and Remedies Code.
STANDARD FOR RECONSIDERATION
59(e)[2');">2" name="FN2');">2" id=
"FN2');">2">2');">2] permits a litigant to file a motion to
alter or amend a judgment. Fed.R.Civ.p. 59(e).
Reconsideration of a judgment is an “extraordinary
remedy that should be used sparingly.” Waites v.
Lee County, Miss., 498 F. App'x 401, 404 (5th Cir.
Nov. 2');">26, 2');">2012');">2) (quoting Templet v. Hydrochem, Inc.,
367 F.3d 473, 479 (5th Cir. 2');">2004)). A motion for
reconsideration “is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of
judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 479 (5th Cir. 2');">2004); Knight v. Kellogg Brown &
Root Inc., 2');">2009 WL 1471788, at *6 (5th Cir. 2');">2009)
(quoting Templet, 367 F.3d at 479). Instead, Rule
59(e) serves the narrow purpose of allowing a party to bring
errors or newly discovered evidence to the Court's
attention. See In re Rodriguez, 695 F.3d 360, 371
(5th Cir. 2');">2012');">2) (citing In re Transtexas Gas Corp.,
303 F.3d 571, 581 (5th Cir. 2');">2002');">2)).
litigant seeking relief under Rule 59(e) “must clearly
establish either a manifest error of law or fact or must
present newly discovered evidence.” Balakrishnan v.
Bd. of Supervisors of La. State Univ. & Agr. & Mech.
Coll., 452');">2 F. App'x 495, 499 (5th Cir. 2');">2011) (citing
Ross v. Marshall, 2');">26 F.3d 745');">42');">26 F.3d 745, 763 (5th Cir. 2');">2005)
(quotation marks and citation omitted)). A Rule 59(e) motion
“cannot be used to argue a case under a new legal
theory.” Id. (citing Ross, 42');">26 F.3d
at 763). Moreover, “an unexcused failure to present
evidence available at the time of summary judgment provides a
valid basis for denying a subsequent motion for
reconsideration.” Templet, 367 F.3d at 479
(citing Russ v. Int'l Paper Co., 2');">2d 589');">943 F.2');">2d 589,
593 (5th Cir. 1991)); see also Tate v. Starks, 444
F. App'x 72');">20, 72');">29 (5th Cir. June 2');">21, 2');">2011).
noted in the Court's prior ruling, a viable negligence
claim under Texas law requires proof of “a duty, a
breach of that duty, and damages proximately caused by the
breach.” Kroger Co. v. Elwood, 197 S.W.3d 793,
794 (Tex. 2');">2006). A plaintiff generally may prove causation
either through lay testimony or through expert testimony. See
Hamburger v. State Farm Mut. Auto. Ins. Co., 361
F.3d 875, 884 (5th Cir. 2');">2004). As noted in the Court's
prior ruling, however, a plaintiff may rely on nonexpert
testimony only where “general experience and common
sense” would allow a layman to determine, with
reasonable probability, the causal relationship between the
event and the medical condition and treatment. Id.
(citing Morgan v. Compugraphic Corp., 675 S.W.2');">2d
72');">29, 733 (Tex. 1984)). Determining whether the accident at
issue, rather than some other event or a pre-existing
condition, caused the need for specific medical treatment is
beyond “common experience” and requires expert
testimony by a qualified expert. See Leitch v.
Hornsby, 2');">2d 114');">935 S.W.2');">2d 114, 119 (Tex. 1994). Plaintiff has
not demonstrated that this ruling was a manifest error of law
or fact. As a result, for the reasons stated in the December
2');">21, 2');">2017 Memorandum and Order, the Court denies the request
for reconsideration of the ruling on causation.