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Feit v. Great-West Life and Annuityinsurance Co.

October 10, 2006


The opinion of the court was delivered by: Hon. Harold A. Ackerman


ACKERMAN, Senior District Judge

This matter comes before the Court on a motion for reconsideration of this Court's October 4, 2006 Opinion and Order on the motion in limine filed by Defendant Great-West Life and Annuity Insurance Company ("Great-West"). Great-West sought to exclude the expert reports and testimony of two experts, Dr. Duc Duong, M.D. and Dr. Arthur P. Fisch, M.D., proferred by Plaintiff Frani Feit ("Mrs. Feit" or "Plaintiff"). This Court denied the motion with respect to the testimony of Dr. Fisch, but granted the motion in part with respect to the testimony of Dr. Duong, excluding that portion of his report and testimony that concluded that Dr. Feit died of a head or neck injury. For the following reasons, Plaintiff's motion for reconsideration is DENIED.


The Third Circuit has held that "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Local Rule 7.1(i) (formerly Local Rule 7.1(g)) requires the moving party to "set [] forth concisely the matters or controlling decisions which the party believes the [court] has overlooked." L. Civ. R. 7.1(i).*fn1 A motion under Rule 7.1(i) may be granted if: (1) "an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice." Database Am., Inc. v. Bellsouth Adver. & Pub. Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993); see also North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Relief by way of a motion for reargument is "an extraordinary remedy" that is to be granted "'very sparingly.'" In re Lord Abbett Mut. Funds Fee Litig., 417 F. Supp. 2d 624, 627 (D.N.J. 2005) (quoting Yurecko v. Port Authority Auth. Trans-Hudson Corp., 279 F. Supp. 2d 606, 608 (D.N.J. 2003)); see also, e.g., NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996); Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).

Local Rule 7.1(i) does not contemplate a recapitulation of arguments considered by the court before rendering its decision. Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J. 1992); Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989). Rather, the rule permits a reconsideration only when "dispositive factual matters or controlling decisions of law" were presented to the court but were overlooked. Fellenz v. Lombard Inv. Corp., 400 F. Supp. 2d 681, 683 (D.N.J. 2005), citing SPIRG v. Monsanto Co., 727 F. Supp. 876, 878 (D.N.J. 1989), aff'd, 891 F.2d 283 (3d Cir. 1989); Khair v. Campbell Soup Co., 893 F. Supp. 316, 337 (D.N.J. 1995); Resorts Int'l v. Greater Bay Hotel & Casino, 830 F. Supp. 826, 831 (D.N.J. 1992). Ultimately, a motion for reconsideration is not an appeal. It is improper on a motion for reconsideration to "ask the court to rethink what it ha[s] already thought through -- rightly or wrongly." Oritani Sav. & Loan Ass'n v. Fid. & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (quotation omitted).

Still, motions for reconsideration "are not an opportunity to argue what could have been, but was not, argued in the original set of moving and responsive papers." Bowers v. NCAA, 130 F. Supp. 2d 610, 613 (D.N.J. 2001). Thus, matters may not be introduced for the first time on a reconsideration motion, and absent unusual circumstances, a court should reject new evidence which was available, but not presented when the court made the contested decision. See, e.g., Yurecko v. Port Authority Trans-Hudson Corp., 279 F. Supp. 2d 606, 609 (D.N.J. 2003); Resorts Int'l, Inc. v. Greate Bay Hotel and Casino, Inc., 830 F. Supp. 826, 831 & n.3 (D.N.J. 1992).

In its October 4, 2006 Opinion and Order ("October 4 Opinion"), this Court discussed the factual background of this litigation, and the parties' arguments on the motion in limine. This Court refers to and relies upon that prior discussion. In her motion for reconsideration, Plaintiff argues that this Court committed errors of law and fact in excluding Dr. Duong's testimony regarding head and neck injury as the cause of Dr. Feit's death, and committed error in excluding such testimony without the benefit of a Daubert hearing on the matter.

I. The Claimed Failure to Consider Cited Case Law Does Not Warrant Reconsideration

Plaintiff asserts that this Court committed error in failing to consider Dr. Duong's testimony regarding head and neck injury as the cause of death as the product of a "differential diagnosis," and specifically claims that this Court erred in failing to reference either of two cases discussing differential diagnosis, Creanga v. Jardal, 185 N.J. 345 (N.J. 2005) and Heller v. Shaw, 167 F.3d 146 (3d Cir. 1999) in rendering its decision to exclude Dr. Duong's testimony. In response to this argument, the Court simply notes that Plaintiff's informal four-page letter brief in opposition to Great-West's motion in limine failed to reference either of these cases, and failed to mention the concept of the "differential diagnosis." Consequently, Plaintiff's argument regarding these "overlooked" cases falls afoul of the admonition to confine the grounds for reconsideration to matters previously presented to, but overlooked by, the court on the original motion. See Fellenz, 400 F. Supp. 2d at 683.*fn2

II. "Differential Diagnosis" Does Not Cure Dr. Duong's Report and Testimony

Plaintiff seems to believe that the mere invocation of the term "differential diagnosis" will miraculously provide the scientific methodology to support Dr. Duong's conclusion that head or neck injuries caused Dr. Feit's death, even though Dr. Duong's report and deposition testimony clearly reveal that his opinion lacks any evidentiary foundation or reliable analysis. Nevertheless, on the assumption that the "differential diagnosis" technique was implicitly referenced in Dr. Duong's testimony as to his methodology, this Court has reviewed the case law on "differential diagnosis" techniques and still found Dr. Duong's opinion wanting and inadmissible.

A review of the case law regarding differential diagnosis indicates that such a methodology must be properly supported in order to be reliable and admissible. In Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 609 (D.N.J. 2002), the district court noted that "the technique of differential diagnosis has been found to be a reliable technique when properly performed." Id. (citing Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741-42 (3d Cir. 1994) (emphasis supplied)). No less an august authority than Creanga, cited by Plaintiff, cautions that while a trial court may admit a properly supported differential diagnosis into evidence, "that does not mean that simply by uttering the phrase 'differential diagnosis' an expert can make his or her opinion admissible." 185 N.J. at 357.

According to Magistrini, "[d]ifferential diagnosis . . . is a standard scientific technique which identifies the cause of a medical problem by eliminating the likely causes until the most probable one is isolated." 80 F.Supp. 2d at 609. A ...

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