Opinion
Case No. 3:02CV7223
April 5, 2004
ORDER
This is an investment advisor malpractice case in which plaintiff Rosalie Devonshire alleges that defendants Bradley Johnston and his firm, The Johnston Group First Advisors, mishandled her securities accounts. On December 29, 2003 this court filed an order granting defendants' motion for summary judgment on plaintiff's claims for breach of contract and negligence. Devonshire v. Johnston Group First Advisors, 300 F. Supp.2d 516 (N.D. Ohio 2003).
In that order, I held that plaintiff's claim for negligence, which plaintiff described as akin to a claim against a doctor, lawyer, or accountant, was a claim for professional malpractice. Accordingly, plaintiff was required to establish the prevailing standard of care for professional investment advisors to raise a genuine issue of material fact for trial. Because she failed to submit expert testimony establishing the standard of care by which the defendants' conduct must be judged, I granted defendants' motion for summary judgment.
Pending is plaintiff's Fed.R.Civ.P. 59(e) motion for reconsideration of the court's order on the negligence claim. "Motions under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence." Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citations omitted). Because plaintiff's motion is based on evidence that was not previously available to her, that motion will be granted.
Plaintiff claims that she sought and intended to submit to the court a report from an expert witness establishing the requisite standard of care. Plaintiff explains, however, that she was unable to do so in a timely fashion because defendants failed to send her all of the documents her expert witness needed to complete his analysis of the case.
Plaintiff has submitted evidence that her expert witness informed her counsel in late September, 2003 that every other page was missing from account data given to plaintiff by defendants. Apparently, the materials had print on both sides, but only the front side of each page was copied for plaintiff. Receipt of the missing information was necessary before the expert could complete his analysis. (Doc. 45 exh. A).
Plaintiff alleges that her counsel contacted defendants immediately after receiving this notice, but defendants did not respond. She has submitted for the record a letter sent by her counsel on October 24, 2003, noting that she had "been trying to contact [defendants' counsel] for some time" and again requesting the missing pages. (Doc. 45 Exh. B). Plaintiff claims she received no response from defendants until November 18, 2003, eleven days after plaintiff submitted her brief in opposition to defendants' motion for summary judgment and one day after defendants had submitted their reply brief in support of their motion for summary judgment.
Plaintiff claims that she "immediately forwarded" the documents to the expert, who finalized his expert witness report on December 19, 2003, and "forwarded it to plaintiff shortly thereafter." (Doc. 45, at 2). Plaintiff explains that she was in the process of writing a supplement to her opposition brief, through which she intended to file the expert witness report, when the court filed the December 29, 2003 order granting defendants' motion for summary judgment.
Plaintiff has submitted that expert witness report with her motion for reconsideration; it concludes that defendants' conduct breached the standard of care required of a professional investment advisor. Thus, it raises a genuine issue of material fact as to whether defendants negligently mishandled plaintiffs securities accounts.
Because plaintiff's motion raises new evidence that was not available to her when she submitted her brief in opposition to defendants' motion for summary judgment, I will grant her motion and allow her to submit her expert witness report. I note that defendants do not deny that they delayed providing plaintiff with the missing pages she requested in October, 2003. I am also mindful of the fact that this case has been delayed several times, as defendant points out, but I am persuaded that plaintiff did not cause this delay. Likewise, there is no evidence that either plaintiff or her counsel deliberately or negligently attempted to conceal this evidence prior to my decision on the motion for summary judgment. Indeed, there is no reason to disbelieve plaintiff's claim that she would have submitted this favorable evidence much sooner if defendants had promptly complied with her request to supply the missing pages from her account statements.
Finally, I agree with plaintiff that no procedural defect precludes the proper submission of plaintiff's expert witness report. Because the January 27, 2004 trial date has been vacated, defendants' argument that the submission of the expert witness report violates Fed.R.Civ.P. 26(a)(2)(C) is moot. Moreover, I see no reason why plaintiff cannot ensure that the expert witness report is properly signed, in conformance with Fed.R.Civ.P. 26(a)(2)(B) and the local rules of this court, when it is filed subsequent to this order.
Thus, it is
ORDERED THAT plaintiff's motion for reconsideration be, and hereby is granted. Plaintiff Rosalie Devonshire shall be permitted to file the expert witness report in support of her negligence claim. The December 29, 2003 order shall be vacated with regard to the negligence claim. Because plaintiff's motion does not challenge my ruling as to her claim for breach of contract, and, at any rate, there is no reason to reconsider that decision, the December 29, 2003 order shall stand as regards that claim.
A status/scheduling conference is scheduled for April 19, 2004 at 9:30 a.m.
So ordered.