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In re Consolidated Parlodel Litigation

July 27, 1998


The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge



ORLOFSKY, District Judge:

In an unpublished Opinion and Order dated April 21, 1998*fn1 (collectively the "Transfer Order"), I granted the motion of Defendant, Novartis Pharmeceuticals Corp. ("NPC"), to transfer venue, pursuant to 28 U.S.C. § 1404(a), to the districts where each Plaintiff resides. Plaintiffs have moved for reconsideration of that Order pursuant to L. Civ. R. 7.1(g) or, in the alternative, for certification of this issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). *fn2 For the reasons set forth below, both of these motions will be denied.


In this district, a motion for reconsideration is often referred to as a motion for reargument and is governed by Rule 7.1(g) of the Local Civil Rules. A motion for reargument must present "matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." See L. Civ. R. 7.1(g). "The word `overlooked' is the operative term in the Rule." Chicosky v. Presbyterian Medical Center, 979 F. Supp. 316, 318 (D.N.J. 1997). Mere disagreement with a decision of the district court should normally be raised through the appellate process and is inappropriate on a motion for reargument. Bermingham v. Sony Corp., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); Florham Park Chevron, Inc. v. Chevron, U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988). Only where matters were overlooked which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion. See, e.g., Panna v. Firstrust Savings Bank, 760 F. Supp. 432, 435 (D.N.J. 1991); G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) ("A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.") (quotation omitted).

A motion for reargument "is an extremely limited procedural vehicle" and may not be used to expand the record before the court. Resorts International, Inc. v. Greate Bay Hotel & Casino, Inc., 830 F. Supp. 826, 831 (D.N.J. 1992). Relief under the rule is granted "very sparingly." Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).


In the Transfer Order, I essentially found that certain witnesses would not be subject to the trial court's subpoena power in either venue, but that more witnesses, and more important witnesses, would be unavailable in this Court. Therefore, I concluded that the balance of relevant factors favored transfer of these cases to Plaintiffs' home districts. Plaintiffs move for reconsideration on five grounds. The first three grounds involve considerations relating to anticipated trial witnesses. Plaintiffs contend that: (1) NPC's witnesses are not critical; (2) Plaintiffs' witnesses will not be subject to the subpoena powers of the transferee courts; and (3) this venue would be more convenient for non-party witnesses. Plaintiffs' rhetorical footwork does not convert these disagreements with the Transfer Order into controlling facts which the Court overlooked.

In the ten pages of the Transfer Order analyzing the various factors to be considered in determining whether a case should be transferred pursuant to 28 U.S.C. § 1404(a), approximately five and one- half pages were devoted to considerations relating to witnesses. See Transfer Order at 9-14. I expressly considered the fact that "Plaintiffs contend that many employees and former employees of NPC would be unavailable to testify at trial in Plaintiffs' home states." See id. at 11. If I had denied NPC's motion, the treating physicians would be unavailable to testify; if I had granted the motion, NPC's employees would be unavailable to testify. Essentially, I determined that, in these cases, the treating physicians were the critical witnesses. On this motion for reconsideration, Plaintiffs present valid arguments that treating physicians are not as important witnesses as the NPC's employees. Even the most legitimate disagreement with my assessment of this difficult balance, however, does not present grounds for reconsideration under L. Civ. R. 7.1(g).

Plaintiffs also contend that they have selected primarily local expert witnesses in anticipation of litigation in the District of New Jersey. Plaintiffs' choice of expert witnesses, however, does not alter my original decision. I note that the expense of transporting an expert witness from New Jersey to several trials across the country is likely to be much less than retaining multiple experts to duplicate the same work in different jurisdictions. Nevertheless, even assuming that Plaintiffs are prejudiced by transferring these actions away from a forum which is convenient to their expert witnesses, I am not persuaded that this would alter the ultimate balancing of factors in the Transfer Order.

In the alternative, Plaintiffs request that I certify the Transfer Order for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). That statute permits a district court to certify, in writing, that its order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." See 28 U.S.C. § 1292(b). I will assume for the purposes of this motion that a transfer of venue pursuant to § 1404(a) can be certified for interlocutory appeal under § 1292(b). See Katz v. Carte Blanche Corp., 496 F.2d 747, 755-56 (3d Cir.), cert. denied, 419 U.S. 885 (1974); see also Nascone v. Spudnuts, Inc., 735 F.2d 763, 765 (3d Cir. 1984). But see Katz, 496 F.2d at 753 (finding that "cases such as Standard v. Stoll Packing Corp., 315 F.2d 626 (3d Cir. 1963), [held] that a grant of or refusal to grant a change of venue authorized by 28 U.S.C. § 1404(a) will not be reviewed under § 1292(b)").

Nevertheless, I find that, in these cases, an interlocutory appeal would impede, rather than advance, the termination of the litigation. This litigation involves fourteen separate product liability trials. Each appears to be "an ordinary case, rather than an exceptional one" with "no reason to believe that the trial of [P]laintiffs' claims will be either protracted or excpetionally costly," and therefore "the saving that would result from the possible avoidance of an unnecessary Second trial is [sic] not so significant as to warrant allowance of an immediate appeal." See Mazzella v. Stineman, 472 F. Supp. 432, 436 (E.D. Pa. 1979) (denying request to ...

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