Law of the Case Doctrine Does Not Bar Trial Judge from Reconsidering Expert Rulings that Were Not Addressed on Interim Appeal — Limits on Applicability of Law of the Case Doctrine

Oliver v. Orange Cnty., Fla., 456 Fed. Appx. 815 (11th Cir. 2012):

"Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case. The law of the case doctrine, however, bars consideration of only those legal issues that were actually, or by necessary implication, decided in the former proceeding." Jackson v. State of Alabama State Tenure Com'n, 405 F.3d 1276, 1283 (11th Cir. 2005) (quotation omitted). Nevertheless, because the "law of the case applies only where there has been a final judgment[,] a court's previous rulings may be reconsidered as long as the case remains within the jurisdiction of the district court." Vintilla v. United States, 931 F.2d 1444, 1447 (11th Cir. 1991) (quotation omitted). Morever, there are exceptions to the law of the case doctrine, namely, where the defendant can show either (1) new evidence; (2) an intervening change in the law that dictates a different result; or (3) that the prior decision was clearly erroneous and would result in manifest injustice. Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985).

As an initial matter, the law of the case doctrine does not apply here because the first appeal in this case did not address the district court's original Daubert ruling. Rather, the only issues resolved and considered during the initial appeal related to qualified immunity defenses asserted by Fiorino and Burk in their motion for summary judgment. See Oliver, 586 F.3d at 904 ("The only issue before us is whether Officers Fiorino and Burk are entitled to qualified immunity on the Fourth Amendment claim that they used excessive and unreasonable force by repeatedly tasering Oliver."). In so doing, we "resolve[d] all issues of material fact in favor of the plaintiff," id. at 901, and as relevant here, simply recited from the record that existed at the time that Dr. Rudner's expert report had opined "to a reasonable degree of medical certainty" about the cause of Oliver's death. Id. at 904. Notably, however, we were not asked to address, and did not address, any arguments concerning whether Dr. Rudner's expert report used reliable methodology or otherwise passed muster under Daubert.2 Therefore, because no Daubert issues were actually, or by necessary implication, decided in the first appeal, the law of the case doctrine did not apply.

Footnote 2. This is because the district court's original Daubert ruling was a non-appealable interlocutory order, which the district court had not primed for interlocutory appeal. See 28 U.S.C. § 1292(b) (providing how a district court may make an otherwise non-appealable order appealable).

Furthermore, since Daubert was not addressed in the appeal, the district court had the right to reconsider its previous rulings on remand. As reflected in the record, at the time the district court entered its order on remand granting the Defendants' second Daubert motion and renewed motions for summary judgment, no final judgment had been entered against the City of Orlando, Fiorino or Burk. Therefore, the court had the discretion and authority to review its prior rulings and orders and the law of the case doctrine did not apply. See Vintilla, 931 F.2d at 1447; see also Technical Resource Servs., Inc. v. Dornier Medical Sys., Inc., 134 F.3d 1458, 1465 n.9 (11th Cir. 1998) (noting that a second judge may reconsider rulings by the first judge before final judgment is entered).

But even if the law of the case doctrine were to apply here, the district court properly applied the exception to the doctrine based on new evidence. As the record shows, on remand, the Defendants introduced new scientific testing regarding the Taser ECD that had taken place during the time that the case had been on appeal, and a follow-up deposition of Dr. Rudner. The district court specifically noted that new evidence had arisen during the pendency of the appeal, and that it was relying on that evidence, in part, in reaching its decision. See Dist. Ct. Order at 4 n.5 (May 31, 2011) (noting, among other things, that "the second deposition of Dr. Rudner (taken January 5, 2011) constitutes new evidence that must be considered"); id. at 6-7 ("The Court has reviewed Dr. Rudner's deposition, expert report, second expert report, and second deposition in order to determine if Dr. Rudner's expert testimony meets the requirements set forth by Daubert and Rule 702.").

Because this new evidence was presented to and considered by the district court, the district court was not bound by the law of the case, if any. Piambino, 757 F.2d at 1120; see also Jackson, 405 F.3d at 1283 ("When the record changes, which is to say when the evidence and the inferences that may be drawn from it change, the issue presented changes as well"). As a result, the district court did not violate the law of the case doctrine when it granted the Defendants' Daubert and summary judgment motions. And indeed, it is worth noting that Oliver does not challenge the existence of this new evidence, much less the substance of the district court's rulings.

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