Practice Tip: Consider Filing a Renewed Motion for Summary Judgment

A change in the facts or science: Summary judgment motions are quite frequently denied after the court weighs the facts and concludes that a genuine issue of material fact remains in dispute. Anything that changes the balance of facts substantially can warrant a renewed motion for summary judgment. For example, you may have had a motion for summary judgment based on the statute of limitations denied because the court considered that your evidence regarding the timing of plaintiffs' knowledge of the cause of her injury was ambiguous. If you depose the plaintiff and pin down the crucial information, a renewed motion would be entirely appropriate. Even if you have appropriate grounds for filing a renewed summary judgment motion, you still must demonstrate to the court why your renewed motion should be heard. Accordingly, before filing a renewed motion, you should first file a motion seeking leave to do so, explaining why a renewed motion is appropriate. Seek oral argument if you can on both the motion seeking leave to file and on the renewed motion itself. But make sure that there really is something new and dispositive; your judge will not be pleased to see a motion that merely recycles the same arguments or refers to authorities or facts that you could have discussed before but, due to oversight or strategic reasoning, did not.

Julie A Blum is of counsel to Spriggs & Hollingsworth in Washington, D.C. Telephone 202-898-5800.

When your motions for summary judgment in product liability cases are denied, your usual reaction is probably to move on and to begin focusing your case on how to win at trial. While that is usually the best approach, that doesn't mean you necessarily have to give up on the hope of winning the case on summary judgment before trial. Orders denying summary judgment are interlocutory, and so a court has the inherent power to reconsider them and change them at any time before entry of final judgment. See, e.g., Freeman v. Kohl & Vick Mach. Works, Inc. 673 F. 2d 196 (7th Cir. 1982). Nothing in the rules bars a party from filing a renewed motion for summary judgment and, as described below, there are times when such a motion is called for.

A change in the controlling law: This can and does happen. The law changes. It's important to follow the development of the law at issue in your motion while your summary judgment motion is pending and even after it has been denied, and not just so that you can (as you often should) make the same or similar arguments at the close of the other side's evidence or after the trial. Months or even years after you have argued and lost a summary judgment motion, new controlling authority may make your motion a winner. This is particularly important in serial product liability litigation, where identical issues are being addressed in multiple courts over an extended period of time.

A change in the scope or application of regulatory law: This can also happen if your case is pending on a relatively slow track. An interesting illustrative example on this point is federal preemption in prescription drug product liability litigation. Recent FDA pronouncements and amicus briefs in key cases have made it clear that the FDA's position is that federal law regulating the approval and labeling for prescription drugs impliedly preempts state tort claims because such claims conflict with FDA regulatory approval of the drugs and their labeling. Summary judgment motions based on preemption in prescription drug cases that were denied prior to these pronouncements are now ripe for renewal because there has been a marked development in the FDA's interpretation of the preemptive scope of its own regulations.

A change in the facts or science: Summary judgment motions are quite frequently denied after the court weighs the facts and concludes that a genuine issue of material fact remains in dispute. Anything that changes the balance of facts substantially can warrant a renewed motion for summary judgment. For example, you may have had a motion for summary judgment based on the statute of limitations denied because the court considered that your evidence regarding the timing of plaintiffs' knowledge of the cause of her injury was ambiguous. If you depose the plaintiff and pin down the crucial information, a renewed motion would be entirely appropriate. Even if you have appropriate grounds for filing a renewed summary judgment motion, you still must demonstrate to the court why your renewed motion should be heard. Accordingly, before filing a renewed motion, you should first file a motion seeking leave to do so, explaining why a renewed motion is appropriate. Seek oral argument if you can on both the motion seeking leave to file and on the renewed motion itself. But make sure that there really is something new and dispositive; your judge will not be pleased to see a motion that merely recycles the same arguments or refers to authorities or facts that you could have discussed before but, due to oversight or strategic reasoning, did not.

Julie A Blum is of counsel to Spriggs & Hollingsworth in Washington, D.C. Telephone 202-898-5800.