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Practice Tip: Consider Filing a Renewed Motion for Summary Judgment

By Julie A. Blum

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.

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