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Click here for the full text of this decision FACTS:The plaintiffs-appellants, Melba Irvin, et al., appeal the granting of summary judgment by the district court for defendants-appellees, and the subsequent denial of the Irvins’ Rule 59(e) motion to alter, amend, and reconsider in a toxic tort action arising from a chemical release from defendants’ facility. HOLDING:Affirmed. An unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration. Russ v. Int’l Paper Co., 943 F.2d 589 (5th Cir. 1991). In this case, the underlying facts were well within the Irvins’ knowledge prior to the district court’s entry of judgment. However, the Irvins failed to include these materials in any form of opposition or response to the defendants’ motion for summary judgment. Although the Irvins correctly point out that they were not represented by counsel for approximately five months between March and August 2002, they were represented by counsel, George Tucker, before the defendants filed their motion for summary judgment and after the district court subsequently granted the motion. By denying the Irvins’ motion for reconsideration, the district court’s decision is not manifestly unjust in law or fact, nor does it ignore newly discovered evidence. The district court reasonably determined that the facts in this case do not warrant the extraordinary relief associated with the granting of a motion for reconsideration. Therefore, the district court did not abuse its discretion in denying the Irvins’ Rule 59(e) motion. The Irvins maintain that the judgment dismissing their case was premised on representations of material facts that defendants knew to be false. Specifically, the Irvins point to two alleged misrepresentations made by defendants: 1. that the Irvins had not identified any expert witnesses on issues of liability, causation, or damages to support their claims; and 2. that the Irvins had not submitted any expert reports. The Irvins refute these statements, arguing that even though the Irvins had not complied with the deadlines established by the court’s scheduling order, the defendants were still in possession of “a wealth of expert information and reports” establishing causation and damages in the form of responses to interrogatories and requests for production. In addition, the Irvins contend that their interrogatory responses identified experts they intended to use at trial. Conversely, the defendants argue that they have accurately reported all the facts and circumstances supporting their motion for summary judgment, including the Irvins’ failure to identify any expert witnesses or provide expert reports on the issues of liability, causation and damages. The Irvins indeed failed to provide either of the two items as detailed by the defendants. In its ruling granting the defendants summary judgment, the district court judge appears to have inadvertently broadened what the defendants related in their summary judgment motion. Specifically, the court states that the Irvins failed to produce “any medical evidence.” The Irvins did in fact respond to written interrogatories as well as provide opposing counsel copies of treating physician reports. However, while these discovery responses may have constituted medical evidence, the defendants did not state that the Irvins failed to provide evidence, but rather that the Irvins had not produced expert witness lists or expert reports. The real problem facing the Irvins is their basic failure to include this evidence in any form of opposition to the defendants’ summary judgment motion. As such, the district court’s granting of the defendants’ motion was properly based on true and correct statements of fact. The Irvins insist that the district court based its ruling on the Irvins’ failure to comply with the court’s scheduling order. They argue that although the district court characterized its dismissal of the Irvins’ case as a grant of summary judgment, the court’s rationale for its decision “is more properly viewed as an involuntary sanction dismissal” under Federal Rules of Civil Procedure 16(f), 37(b) and 41(b). The court states that it appears clear from the reasons the district court articulates that its decision was premised solely on the failure of the Irvins to respond to or oppose the defendants’ motion for summary judgment. OPINION:DeMoss, J.; DeMoss, Dennis and Prado, JJ. DISSENT: Dennis, J. “Plaintiffs were literally without enrolled counsel during the most critical stages of the proceedings in a factually complex case. Although it is true that at an earlier stage of the case the plaintiffs were represented by a lawyer who collected the evidence in question and submitted it to the defendants, the plaintiffs were completely without counsel during the critical period when that evidence could have been presented to the court. Upon obtaining counsel again, plaintiffs immediately filed the present Rule 59 Motion and submitted the required evidence. . . . “In short, proper application of the factors that this court has instructed district courts to use in deciding whether to consider additional evidence submitted with a Rule 59 motion should have led the district court to consider the evidence.”

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