Destin v. Loiseau et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23441-BLOOM/Reid
KESCEHNER DESTIN,
Plaintiff,
v.
OFFICER E. LOISEAU and SERGEANT
L. DURAND,
Defendants.
________________________________/
ORDER ON PLAINTIFF’S DAUBERT MOTION
THIS CAUSE is before the Court upon Plaintiff’s Motion to Exclude Certain Opinions of
Defendant’s Proposed Expert, Dr. Laurence Dubensky (“Motion”), ECF No. [228]. The Defendant
Officer E. Loiseau filed a Response in Opposition (“Response”), ECF No. [229]. The Court has
reviewed the Motions, the supporting and opposing submissions, the record, and is otherwise fully
advised. For the reasons that follow, the Motion is denied.
I. 	BACKGROUND
On November 18, 2024, Plaintiff filed a Daubert motion seeking to exclude the testimony of
Dr. Laurence Dubensky. ECF No. [124]. The Court denied that motion. ECF No. [195]. Now,
Plaintiff has filed the identical Daubert Motion, albeit untimely, based on the same report and
conclusions 	made 	by 	Dr. 	Dubensky. 	The 	Court 	construes 	the 	Motion 	as 	a 	motion 	for
reconsideration and, as such, it is denied.
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II. 	LEGAL STANDARD
A. Motion for Reconsideration
A motion for reconsideration is “an extraordinary remedy to be employed sparingly.” Burger
King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). “The burden is
upon the movant to establish the extraordinary circumstances supporting reconsideration.” Saint
Croix Club of Naples, Inc. v. QBE Ins. Corp., No. 2:07-cv-00468-JLQ, 2009 WL 10670066, at *1
(M.D. Fla. June 15, 2009) (citing Taylor Woodrow Constr. Corp. v. Sarasota/Manatee Airport
Auth., 814 F. Supp. 1072, 1073 (M.D. Fla. 1993)).
A motion for reconsideration must do two things. First, it must demonstrate some
reason why the court should reconsider its prior decision. Second, it must set forth
facts or law of a strongly convincing nature to induce the court to reverse its prior
decision. Courts have distilled three major grounds justifying reconsideration: (1)
an intervening change in controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or manifest injustice.
Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993) (citations omitted). “Such
problems rarely arise and the motion to reconsider should be equally rare.” Burger King Corp.,
181 F. Supp. 2d at 1369.
Because court opinions “are not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure,” a motion for reconsideration must clearly “set forth facts
or law of a strongly convincing nature to demonstrate to the Court the reason to reverse its prior
decision.” Am. Ass'n of People With Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339, 1340 (M.D.
Fla. 2003) (citations omitted). As such, a court will not reconsider its prior ruling without a
showing of “clear and obvious error where the ‘interests of justice’ demand correction.” Bhogaita
v. Altamonte Heights Condo. Ass'n, Inc., No. 6:11-cv-1637-Orl-31, 2013 WL 425827, at *1 (M.D.
Fla. Feb. 4, 2013) (quoting Am. Home Assurance Co. v. Glenn Estess & Assoc., 763 F.2d 1237,
1239 (11th Cir. 1985)). “When issues have been carefully considered and decisions rendered, the
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only reason which should commend reconsideration of that decision is a change in the factual or
legal underpinning upon which the decision was based.” Taylor Woodrow Constr. Corp., 814 F.
Supp. at 1072-73; see also Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1247 n.2 (S.D. Ala.
2008) (noting that reconsideration motions are to be used sparingly, and stating, “imagine how a
district court's workload would multiply if it was obliged to rule twice on the same arguments by
the same party upon request”).
III. 	DISCUSSION
Plaintiff has failed to set forth any basis for the Court to reconsider the same arguments
previously rejected by U.S. District Judge Jose Martinez. As Defendant correctly points out,
Plaintiff again challenges Dr. Dubensky’s opinions that O.C. spray (i.e., pepper spray) did not cause
Plaintiff to suffer a severe injury. Judge Martinez squarely addressed Plaintiff ‘s arguments and they
were rejected. Moreover, none of the circumstances justifying reconsideration of the Court’s decision
exists here.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion to Exclude
Certain Opinions of Defendant’s Proposed Expert, Dr. Laurence Dubensky, ECF No. [228], is
DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on March 12, 2026.
_____ ___ _______________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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