Burdess v. Cottrell, Inc.

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

GREGORY L. BURDESS, et al., ) Plaintiffs, v. Case No. 4:17-CV-01515 JAR □ COTTRELL, INC., □ Defendant. MEMORANDUM AND ORDER : This matter is before the Court on Defendant Cottrell, Inc.’s (“Cottrell”) Motion to | Reconsider the Court’s January 9, 2019, order denying Cottrell’s earlier motion to reconsider, which dealt with the Court’s denial of Cottrell’s motion for summary judgment. (Doc. 33; see also Docs. 5, 20, 22, 29.) Plaintiffs responded in opposition with a request for sanctions (Doc. 34), and Cottrell has replied (Doc. 35). Background This case concerns a repetitive-use injury sustained by Plaintiff Gregory Burdess, who | was employed as a car hauler by Jack Cooper Transport Company (“JCT”). (Doc. 1.) The rigs | in the JCT motor carrier fleet were manufactured, designed, and placed into the stream of commerce by sale or otherwise by Cottrell. (/d.) Plaintiffs allege that the injury was caused by | Cottrell’s defective design. (/d.) On April 26, 2013, Burdess awoke at 3 a.m. in a motel room in McLean, Illinois and | could not feel his arms. (Doc. 5-3 at 35:15-36:20 (hereinafter “Burdess depo.”).) Burdess spent two hours in bed, “trying to roll around and trying to move [his] hands to get the feeling back in | [his] hands so he could get out of bed to call [JCT] to tell them.” (Cd. at 35:17-21.) Later that

day, Burdess was seen by a doctor in Missouri and was diagnosed with bilateral shoulder impingement syndrome. (Doc. 1.) Burdess and his wife filed suit approximately four years later. Id.) Cottrell moved for summary judgment, arguing that the claims were time-barred. □□□□□ It argued that the action originated in Illinois and that therefore Plaintiffs are subject to | Illinois’s two-year statute of limitations, rather than Missouri's iive-year time limit. (U/d.) On | March 30, 2019, the Court denied Cottrell’s motion for summary judgment, finding that Burdess’s injury was not “capable of ascertainment” until be was examined by his Missouri doctor. (Doc. 14.) Cottrell then sought reconsideration of that denial, arguing that the Court’s interpretation of the Missouri borrowing statute amounts to a “manifest error of law.” (Doc. 22 at 1.) On January 9, 2019, the Court denied Cottrell’s motion for reconsideration. (Doc. 29.) In its order denying reconsideration, the Court wroie, “The Court agrees with Cottrell that the Missouri _ Supreme Court’s 2006 holding in Powel v. Chaminade Coll. Preparatory, Inc., 197 $.W.3d 576, 580 (Mo. 2006), is the appropriate touchstone for applying Missouri’s borrowing statute.” (d. at | 3.) Noting that Powel offered two possible interpretations of the borrowing statute, the Court | wrote: It appears to the Court that the different interpretations largely arise from a pair of □ inconsistent passages from Powel. The first, applied by the Court in its order denying summary judgment, states: Although this Court has mot previously clearly articulated a specific, generally applicable test to be used in making this determination, a consistent approach is evidert upon careful review of this Court’s decisions from the last 40 years: the statute Cottrell initially filed a Motion to Dismiss, which the Court dexied. (Does. 5, 14.) Following conference with counsel, the parties agreed that no addition! discovery regarding the choice-of- law and statute-of-limitations issues was necessary and asked the Court to convert Cottrell’s motion to dismiss to a motion for summary judgment. (See Dov. 20 at n.1.)

of limitations begins to run when the “evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.” At that point, damages would be sustained and capable of ascertainment as an objective matter[.] Powel, 197 S.W.3d at 582 (emphasis added) (quoting Bus. Men’s, 984 S.W.2d at 507). The second, considered by Cottrell to be determinative,” states: In sum, under the above cases the capable of ascertainment test is an objective one. The issue is not when the injury occurred, or ! when plaintiff subjectively learned of the wrongful conduct and that it caused his or her injwy, but whea a rcusonable person would have been put on notice that an injury and substantial □ damages may have occurred and would have undertaken to ascertain the extent of the damages. At that point, the damages would be sustained and capable of ascertainment as an objective □ tnatter. □ Id. at 584. The passages are not contradictory, but each includes something the other does not: in the first, there is no mention of undsrtaking to ascertain the extent of damages; in the second, there is no tention of the injury being potentially actionable. Thus, it is important to determine which encompasses the applicable law. (Id. at 4.) The Court went on to determine that the interpretation supported by the first passage controlled and denied Cottrell’s motion for reconsideration. (da. at 8.) Cottrell now argues that the Missouri Supreme Couri’s recent opinion in State ex rel. | Halsey v. Phillips, 576 S.W.3d 177 (Mo. 2619), clarifies that couits must sppiy the interpretation | supported by the second passage. (Doc. 33.) On that basis, Cottrell suggests that the Court’s | reliance on the first passage was a manifest error of law and argues that, if the Court applies the | second passage, Cottrell is entitled to judgment as a matter of law. (Id.) i. Motion for Reconsiderstion Legal Standard “A district court has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to Rule 59(e).” United State: vy. Metro. St. Louis Sewer Dist., □

440 F.3d 930, 933 (8th Cir. 2005). “Rule 59(e)} motions serve tne limited function of correcting

‘manifest errors of law or fact or to present newly discovered evidence.” Jd. (quoting Innovative Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th 1998)). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Bracht v. Grushewshy, No. 4:04CV1286 HEA, 2007 WL 43847, at *i (E.D. Mo. Jan. 4, 2007) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). Discussion As an initial matter, the Court notes that the Missouri Supyeme Court’s opinion in Halsey □ does not expressly address the inconsistent Powe! passages highlighted by this Court’s order or otherwise explain its application of the Powel standard. 576 3.W.3d at 180. Instead, Cottrell’s argument is based on the fact that the Haisey Court's only reference to Powel is to quote the second passage. Jd. at 180, 182. Accordingly, the Court is sot convinced that Halsey is as compelling as Coitreil asserts. Nevertheless, the Court concludes that Cottreil’s motion for summary judgment fails even under the standard in the second passage. As noted in the Court’s prior order, the second Powe/ passage differs from the first in that | it makes “no mention of the injury being potentially actionabie.” (Doc. 29 at 4 (citing Powel, | 197 S.W.3d at 584).) Without the “potentiaily actionable” element, the question is “when a | reasonable person would have been put on notice that an injury and substantial damages may | have occurred and would have undertaken to ascertain the exteri of the damages.” Powel, 197 | S.W.3d at 584. The Court interprets that passage to present three elements, all based on when a reasonable person would have: (1) been put on notice that an injury may have occurred; (2) been put on notice that substantial damages may have occurred; and (3) undertaken to ascertain the extent of the damages. Cottrell must show that all three elements are met.

a. Notice that an injury may have occurred In its order denying summary judgment, the Court conciuded that “a reasonably prudent

"person waking up in the middle of the night with numbness in fis arms would not conclude that the numbness was the result of an actionable injury.” (Doc. 20 at 6 (emphasis added).) :

_ Actionability is not part of the second Powel passage; all that is required is that a reasonable | person would have been put on notice that an injury occurred. 127 S.W.3d at 584. Nevertheless, | □ the Court believes that the evidence before Burdess at the time ne awoke was not enough fora reasonably prudent person to have concluded that he had suffereci any injury at all: [I]t was the first time [Burdess] had experienced numbness in his arms, .. . [h]e had not recently experienced any slip, fall, or other trauraa that might explain the sensation, and he testified that he had had neo difficuitics with his hands, wrists, arms, or shoulders before that night. There was therefore no obvious cause for the numbness that would lead a prudent person to conciude that it was the result of a specific injury. (Doc. 20 at 6.)

b. Notice that substantial damages may have accurred The Court also believes that the evideace before Burdess would not have led a reasonably | prudent person to conclude that he may have sufferec “substantial damages.” Even if a | ay reasonable person in Burdess’s place would have concludea that they had been injured, “a | reasonably prudent person would have no reason to conciude that the numbness was anything more than a temporary condition until a medical examination :evealed that it was a bona fide | injury caused by the repetitive action of operating a Covreii rig.” (Doc. 20 at 6 (emphasis □ added).) I ce. Undertaken to ascertain the extent of the dzimages

The third element contained in the second Powel passage—the only requirement not included in the first—is that a reasonably prudent person woul have undertaken to ascertain the . 5

extent of the damages. 197 S.W.3d at 584. Cottrell argued that Burdess undertook to ascertain the extent of his damages when he called JCT from his lilinois hotel room to report the numbness. Burdess responded that the appropriate point in time is when he met his physician in "Missouri. The Court concludes that it need not determine this clement because it has already | determined that a reasonable person in Burdess’s position wovid not have been on notice of the | injury or damages. Because Cottrell cannot show either of the jirst two requirements, the claim |

could not have accrued in Illinois, even if the outgoing Jilmois cail to JCT may have satisfied the third requirement. Consequently, the three elements of the second Powel passage were not □□□□ present until Burdess’s “Missouri doctor informed him that tree numbness was not a temporary :

anomaly but was in fact bilateral shoulder impingement syndrorse caused by repetitive motion;” only then would a reasonable person be on notices that he nad surfered an injury and substantial damages. (Doc. 20 at 8.) Conclusion Accordingly, the Court concludes that Burdess’s ciaim accrued in Missouri even under | the standard described in the second Powe! passage. Thus, Missouri’s five-year siatute of ! limitations governs, and Plaintiffs’ May 6, 2017, compiaiut ‘was therefore timely filed. The | Court concludes that its ruling was not the result of “manifest exrors of law or fact.” Fed. R. Civ. | P. 59. Ki. Requests for Sanctions In their response to Coitrell’s motion for reconsicereztion, Plaintiffs request sanctions | against Cottreil’s counsel under 28 U.S.C. § 1927 for “necuiessly increasjing] the cost of litigation to Plaintiffs, Plaintiffs’ counsel, and the taxpayers wuo fund our federal courts” by filing this motion. (Doc. 34 at 9.) They argue that Coittreli’s second motion for reconsideration □

amounts to “a third motion to dismiss based on a theory which had been twice rejected,” and | seek attorney fees. (/d.) □ The Court believes that Plaintiffs’ request for sanctions is unreasonable under these circumstances. Cottrell’s motion is based on a recent application of the relevant standard by the | Missouri Supreme Court that arguably undermined the reasoning in the Court’s prior order. Seeking reconsideration in light of that development is neither unreasonable nor vexatious. See 28 U.S.C. § 1927. The Court wil! therefore deny Plaintiffs’ request for sanctions. Accordingly, IT IS HEREBY ORDERED that Defendant Cottreii’s |fotion to Reconsider (Doc. 33), | is DENIED. :

IT IS FURTHER ORDERED that that Plaintiffs’ request for sanctions (Doc. 34 at 8), is DENIED. □ Dated this 27th day of March, 2020. og KA oe UNITED STATES DISTRICT JUDGE