Did it seem to you in law school that sometimes the hardest part of reading cases was not deciphering some obscure legal principle — say, the difference between larceny by trick and taking under false pretenses, or the Rule in Shelley’s Case, or pretty much anything in Article 9 of the Uniform Commercial Code — but just figuring out what happened? For every case with a clear, memorable fact pattern, there was another that would be completely opaque. Behold poor Mrs. Palsgraf getting kabonged on the noggin by a falling roof tile. But also behold the poor first year law student trying to unravel the story of Pennoyer v. Neff. Both resulted in headaches. Is it that life is sometimes muddled, or legal cases are sometimes complicated, or that judges are sometimes bad writers, or that law school textbooks are sometimes badly edited? Is “sometimes” really the right word?
Be grateful that we perused today’s case, Phillips v. Ethicon Endo-Surgery, Inc., 2025 U.S. Dist. LEXIS 16811 (W.D. Tex. Jan. 29, 20250, so that you do not have to. Phillips is a procedural mess. But at least we know why the background of the Phillips case is harder to follow than Finnegan’s Wake or A Brief History of Time: the plaintiffs created what the court called “a complicated procedural history.” The plaintiffs did so both through clumsiness and calculation. Fittingly, it was the plaintiffs who paid the price for constructing such chaos.
The one thing clear about Phillips is that the underlying facts add up to a sad story. A man underwent an operation to repair his colon. The surgery appeared to be successful. The man was discharged and sent home. But an anatomical staple failed, resulting in sepsis, resulting in death. The man’s estate brought a lawsuit. The claim was that a bum staple caused the death.
And then tragedy turned into farce.
The plaintiffs’ various missteps came back to haunt them. First, the plaintiffs sued the wrong manufacturer. At least the plaintiffs acknowledged the error and filed a stipulation of dismissal. Then the plaintiffs sued different defendants, alleging breach of the implied warranty of fitness for a particular purpose, breach of the implied warranty of merchantability, and design defect. The defendants moved to dismiss this complaint in its entirety. Before the court could rule on this motion, the plaintiffs amended their complaint, dropping all of the defendants save one, and dropping the design defect claim. The sole remaining complaint again moved to dismiss. When the magistrate judge recommended dismissal of the amended complaint as inadequately pleaded, instead of giving a reason to support an amendment, the plaintiffs filed another action in Texas state court. This state court complaint added new defendants that were allegedly manufacturers of the staple. Then the plaintiffs amended their state court complaint to add yet another defendant.
Got all that?
The plaintiffs then opposed entry of judgment against them in the federal case — sort of. The plaintiffs conceded that their claim for breach of warranty of fitness for a particular purpose should be dismissed with prejudice. The plaintiffs also agreed that their claim for breach of warranty of merchantability should be dismissed without prejudice, while offering “an explanation as to the complicated [there’s that word again] history of this litigation and Plaintiffs’ continued argument as to why pre-suit notice should not bar their lawsuit.” Ultimately – well, maybe that is the wrong word, since there’s more tale to tell – the district court dismissed both warranty claims with prejudice. The plaintiffs “had never — in any of their briefing — given any ‘indication of how they would amend their complaint to present a viable, non-futile claim for breach of the warranty of merchantability,’ despite having multiple opportunities to do so.”
Meanwhile, the defendants in the state court action (Phillips II) removed the case to federal court. The defendants then moved to dismiss Phillips II case as being barred by the doctrines of res judicata and collateral estoppel. After all, Phillips I and Phillips II were based on the same facts, same legal theories, and the “same parties (or parties in privity).” Once again, the plaintiffs sought to forestall an adverse decision via and amended complaint in Phillips II that dropped some defendants. Inevitably, the remaining defendants moved again to dismiss the claims based on res judicata and collateral estoppel.
And now let’s put Phillips II aside, leaving the motion to dismiss pending in limbo. But we will return to it. (That probably sounds more like a threat than a promise, doesn’t it?)
We must hasten back to Phillips I. As if to pile weirdness upon weirdness, the plaintiffs belatedly sought reconsideration of the dismissal of Phillips I. It is the denial of that motion for reconsideration that is the subject of the opinion with the citation above. It has been said with respect to government regulation that complexity ends up being a form of taxation. In Phillips (be it I or II or whatever might come next), complexity seems to have taxed judicial patience. The plaintiffs had by now squandered all credibility. They characterized their motion for reconsideration as traveling under Fed. R. Civ. P. 59(e) and 60(b)(2), but, due to timing issues, only Rule 59(e) applied. Then the plaintiffs attempted to support their motion for reconsideration in Phillips I by attaching a draft Second Amended Complaint filed in Phillips II. That maneuver did not work. Indeed, it probably reinforced the court’s impression that the plaintiffs were playing games. The key problem for the plaintiffs was that they lacked any excuse for not filing a timely amendment in Phillips I. The plaintiffs argued that they had held off on amending their complaint in Phillips I “so as not to jeopardize the chance of settlement” in an impending mediation.
The court in Phillips I cut through the craziness by following the criteria in Rule 59(e). First, the plaintiffs identified no “manifest error in law or in fact” in the court’s prior dismissal. They had not shown the court any non-futile amendment. Second, the plaintiffs showed no “newly discovered evidence” that undercut the dismissal with prejudice. The plaintiffs alluded to potential testimony and other facts that they asserted might have helped them, but none of it related to a key reason for dismissal — the plaintiffs’ failure to furnish pre-suit notice. Further, nothing prevented the plaintiffs from seeking all of that discovery prior to dismissal. The third and last criterion under Rule 59(e) was whether failure to reconsider would result in “manifest injustice.” The court in Phillips I saw no danger of manifest injustice because the plaintiffs’ failures to move for leave to amend the complaint or provide the court with detail as to what an amendment would include were the result of the plaintiffs’ “strategic choice that did not play out as they hoped.” The plaintiffs’ delays, duplications, and inglorious muteness did them no favors. Bad strategic choices, whether or not they could be laid at the feet of counsel, are not the stuff of manifest injustice. The PhillipsI court applied Rule 59(e), denied the plaintiffs’ motion for reconsideration, and struck a blow for fairness, rationality, and finality.