Opinion
C.A. No. 04C-01-151.
June 30, 2006
Upon Consideration of Defendant's Motion For Reargument DENIED.
Richard A. Zappa, Esquire, Young Conaway Stargatt Taylor, Wilmington, Delaware, Attorney for Plaintiffs.
Dennis D. Ferri, Esquire, Morris James Hitchens Williams LLP, Wilmington, Delaware, Attorney for Defendants.
Before this Court is a Motion for Reargument filed by the Defendants Carl Abramowicz, M.D. and Southern Delaware Imaging Associates, LLC ("Defendants"). In essence, Defendants are seeking reargument pursuant to Superior Court Civil Rule 59 premised on their belief that Dr. Steven H. Krasnow, M.D. ("Dr. Krasnow") should not be precluded from testifying. Defendants argue that the facts and opinions expressed by Dr. Krasnow in the present case are distinguishable from those expressed by Dr. Singer in Gordon v. Hacker. Plaintiffs oppose the motion on two grounds: (a) that the Defendants are merely rehashing arguments already decided by the court; and (b) if the Court were to consider the merits of Defendants' motion, the medical literature which Dr. Krasnow contends supports his opinion is an unreliable basis on which to determine the doubling time. Upon consideration of the motion and response, Defendants' Motion for Reargument is DENIED.
Gordon v. Hacker, Del. Super., C.A. No. 00C-12-199, Scott, J. (Dec. 11, 2003) (Mem.Op.).
BACKGROUND
On January 20, 2006, Plaintiffs filed a Motion in Limine to Preclude the Opinion of Defendants' Causation Expert. Defendants filed their motion in opposition on January 31, 2006. On February 1, 2006, a pre-trial conference was held during which the Court heard arguments on Plaintiffs' Motion in Limine. Plaintiffs conceded that Dr. Krasnow could testify on causation and objected only to his testimony regarding doubling time. Plaintiffs argued that doubling time was not reasonably relied upon by experts in the field of medicine and that there was nothing to support Dr. Krasnow's opinion other than generalized conclusions. It was alleged that Dr. Krasnow never conducted independent research on the doubling times of cancer nor did he have any measurements from diagnostic tests that could support the growth rate. Defendants countered by arguing that Dr. Krasnow was not trying to pinpoint the various stages of Robert Barrow's ("Barrow") cancer. Rather, it was alleged that his opinion, which was based upon studies providing a mean doubling time of cancer tumors, was being offered to show that Barrow's cancer was at the same stage on November 19, 2001, as it was on July 21, 2002.The Court directed the parties' attention to this Court's September 11, 2003, decision in Gordon v. Hacker whereby the Court held that a doctor could not testify regarding the timing of the progression of colon cancer among Stages I, II, and III. Upon consideration of the Plaintiffs' Motion, Defendants' Response, the decision in Gordon, and the parties' arguments, the Court ordered that Dr. Krasnow could testify that Barrow's cancer was at Stage IIIB or IV if he could do so without referring to doubling time. Discussion of doubling time would tend to confuse or mislead the jury. The Court, therefore, precluded Dr. Krasnow from offering only his opinion regarding doubling time at trial for the reasons that had been stated on the record.
On February 23, 2006, the Court held a telephone conference between the parties to address several pending matters before trial. One of the issues raised was the Court's prior decision regarding the testimony of Dr. Krasnow. The Court reiterated its decision that Dr.Krasnow could testify so long as he did not refer to doubling time. Counsel for the Defendants, however, was unsure as to whether Dr. Krasnow could offer his opinion without referring to doubling time but stated that he would consult with him and then submit a letter memorandum to the Court. Upon submission of the parties' letter memorandum, the Court renders its decision.
DISCUSSION
Defendants have filed their motion for reargument pursuant to Superior Court Civil Rule 59(e). "A motion for reargument is the proper device for seeking reconsideration by the Trial Court of its findings of fact, conclusions of law, or judgment. . . . The manifest purpose of all Rule 59 motions is to afford the Trial Court an opportunity to correct errors prior to appeal. . . ." A motion for reargument is not a device for raising new arguments or stringing out the length of time for making an argument. It will be denied unless the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision. "A party seeking to have the Court reconsider the earlier ruling must demonstrate newly discovered evidence, a change in the law or manifest injustice."
Super. Ct. Civ. R. 59 states:
(e) Rearguments. A motion for reargument shall be served and filed within 5 days after the filing of the Court's opinion or decision. The motion shall briefly and distinctly state the grounds therefore. Within 5 days after service of such motion, the opposing party may serve and file a brief answer to each ground asserted in the motion. The Court will determine from the motion and answer whether reargument will be granted. A copy of the motion and answer shall be furnished forthwith by the respective parties serving them to the Judge involved.
Cummings v. Jimmy's Grille, Inc., 2000 WL 1211167, at *2 (Del.Super.) (quoting Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)).
Id. (citing Murphy v. State Farm Ins. Co., 1997 Del. Super. LEXIS 298).
Id. (citing Interim Health Care v. Fournier, 1994 Del. Ch. LEXIS 43).
Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del.Super.).
After reviewing the parties' submissions, the Court is convinced that the Defendants have not shown that the Court has overlooked a controlling precedent or legal principles, or has misapprehended the law or facts such as would have changed the outcome. The Defendants have reiterated substantially all of their previous arguments. Therefore, consistent with the principle that a motion for reargument should not be used merely to "rehash the arguments already decided by the court," the Court is not persuaded that Defendants' motion has any merit. Therefore, Defendants' Motion to Reargue is DENIED and Dr. Barrow is precluded from testifying that Barrow's cancer was at the same stage on November 19, 2001, as it was on July 21, 2002, if the basis of his opinion is doubling time.
Cunningham v. Horvath, 2004 WL 2191035, at *2 (Del.Super.).
IT IS SO ORDERED.