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Kaid C. Musgrave, et al v. Breg

November 4, 2011

KAID C. MUSGRAVE, ET AL., PLAINTIFFS,
v.
BREG, INC. AND LMA, NORTH AMERICA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

OPINION AND ORDER

This matter is before the Court on Defendant*fn1 Breg, Inc.'s Motion for Reconsideration as to Two Aspects of the Court's September 2, 2011 Summary Judgment Decision (ECF No. 165), Plaintiffs' Memorandum in Opposition to Defendant Breg, Inc.'s Motion for Reconsideration (ECF No. 176), and Defendant Breg, Inc.'s Reply Memorandum in Support of its Motion for Reconsideration as to Two Aspects of the Court's September 2, 2011 Summary Judgment Decision (ECF No. 181). For the reasons that follow, the Court GRANTS Breg's motion.

I. Background

This Court issued an Opinion and Order in which it denied Plaintiffs' Motion for Partial Summary Judgment (ECF No. 109) and granted Defendant's Motion for Summary Judgment as it related to Plaintiffs' common law breach of implied and/or express warranty claims and denied the remainder of Defendant's motion (ECF No. 103). Breg has filed a motion for reconsideration of two discrete portions of that Opinion and Order. Breg's motion is ripe for review.

The Court notes that it has been informed by the parties that this case has settled. The Court, however, is inclined to issue this Opinion and Order so to correct its previous error.

II. Standard

Although the Federal Rules of Civil Procedure do not explicitly address motions for reconsideration of interlocutory orders, the authority for a district court to hear such motions is found in both the common law and in Rule 54(b) of the Federal Rules of Civil Procedure. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed. Appx.949, 959 (6th Cir. 2004). "[D]istrict courts possess the authority and discretion to reconsider and modify interlocutory judgments any time before final judgment." Id. at 652 (citing as examples Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) ("every order short of a final decree is subject to reopening at the discretion of the district judge"); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) ("District courts have inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment.")). Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or, (3) a need to correct a clear error or prevent manifest injustice. Id. at 959(citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)).

III. Discussion

In Breg's motion, it seeks reconsideration (1) to address a portion of the summary judgment decision that calls into question the applicable law as it relates to Plaintiffs' claims for non-economic damages under the Ohio Products Liability Act, and (2) to correct a misstatement about a Food and Drug Administration 510(k) application document that the Court indicated belonged to Breg, Inc.

A. Non-Economic Damages Under the Ohio Products Liability Act

1. Request for Reconsideration

In its Opinion and Order on summary judgment, this Court stated: Defendant argues that, if Plaintiffs' claims survive summary judgment, Plaintiffs' non-economic damages should be capped pursuant to the Ohio Revised Code § 2315.18(B)(2). That statutory provision limits non-economic damages in tort actions to the greater of $250,000 or three times the economic loss to a maximum of $350,000 per plaintiff or $500,000 for each occurrence that is the basis of the tort action. The statute provides for exceptions to the cap for certain types of injuries:

[(B)(3)] There shall not be any limitation on the amount of compensatory damages that represents damages for non-economic loss that is recoverable in a tort action to recover damages for injury or loss to person or property if the ...


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