United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion for reconsideration
(ECF No. 57) brought by Plaintiff Zero Barnegat Bay, LLC
(hereinafter "Plaintiff) in reference to this
Court's ruling on Defendant Lexington Insurance
Company's motion for summary judgment issued on March 18,
2018. (ECF No. 56). Specifically, Plaintiff seeks the
Court's reconsideration of the ruling, which, based on
Plaintiff's expert, found that damages to the pool,
boardwalk, and transformer were caused by first wind, and
then flood. Accordingly, the Court determined that an
anti-concurrent clause of the insurance contract barred
recovery for those damages.
facts relevant to this matter have been set forth in the
Court's previous opinion and will not be repeated.
for reconsideration are governed by Federal Rule of Civil
Procedure 59(e) and L. Civ. R. 7.1(i). The
"extraordinary remedy" of reconsideration is
"to be granted sparingly." A.K. Stamping Co.,
Inc., v. Instrument Specialties Co., Inc., 106 F.Supp.2d
627, 662 (D.N.J. 2000) (quoting NL Indus., Inc., v.
Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.
1996)). The Rule "does not contemplate a Court looking
to matters which were not originally presented."
Damiano v. Sony Music Entm't, Inc., 975 F.Supp.
623, 634 (D.N.J. 1996) (quoting Florham Park Chevron,
Inc., v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162
Third Circuit has held that the "purpose of a motion for
reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence." Harsco
Corp. v. Zlotincki, 779 F.2d 906, 909 (3d Cir. 1985).
"Reconsideration motions, however, may not be used to
relitigate old matters, nor to raise arguments or present
evidence that could have been raised prior to the entry of
judgment." NL Indus., Inc., 935 F.Supp. at 516.
Such motions will only be granted where (1) an intervening
change in the law has occurred, (2) new evidence not
previously available has emerged, or (3) the need to correct
a clear error of law or prevent a manifest injustice arises.
See North River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995) (internal quotation marks
and citations omitted). Because reconsideration of a judgment
after its entry is an extraordinary remedy, requests pursuant
to these rules are to be granted "sparingly,"
Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.
1986); and only when "dispositive factual matters or
controlling decisions of law" were brought to the
Court's attention but not considered. Pelham v.
United States, 661 F.Supp. 1063, 1065 (D.N.J. 1987).
"There is a strong policy against entertaining
reconsideration motions based on evidence that was readily
available at the time that the original motion was heard; and
so the court may, in its discretion, refuse to consider such
evidence." Damiano, 975 F.Supp. at 634
argues that this Court failed to review the deposition
transcript of its expert Todd Heacock. By way of background,
Plaintiff submitted the expert report of Heacock, regarding
the "condition and circumstances that may have led to
the ... damage to an in-ground pool, the timber framed
promenade adjacent to the marine bulkhead (hereinafter
"the boardwalk"), and the transformer located near
the eastern side of the island." (Heacock Report, ECF
No. 39-9, at 1). Regarding damage to the boardwalk, Heacock
opined that "at many locations along the bulkhead, nails
or the remnants of nails were observed to be pried up and, in
many cases, bent over. The tides during the storm event did
extend above the top of the bulkhead and boardwalk. However,
high winds occurred prior to the rise in the water
level." (Id. at 3). Heacock explained,
"[o]nce lifted, direct wind pressure would cause the
nails at the bulkhead to bend and fail. Later, when the water
levels rose, the tide would have carried the remains of the
boardwalk away." (Id.).
the electrical transformer, Heacock opined that the wind
"caused the transformer to slide off its base" and
that "[t]he connection of the power wires below the
transforme[r] prevented the upper section of the transformer
from being carried away by the wind, or by the effects of
flood that occurred after the high wind."
(Id.). Finally, regarding the pool, Heacock
explained that "due to movement caused by wind and later
by flood water the pool is severely damaged . . . ."
(Id. at 4). Heacock concluded, "[t]he effects
of wind and rising water caused significant disturbance at
the residential property on Middle Sledge Island . . . [i]t
is evident from our analysis that wind likely caused
significant damage to these items. Additional damage may have
occurred due to flood after the severe wind event."
prior opposition to Defendant's motion for summary
judgment, Plaintiff failed to address Defendant's
argument that damages to the boardwalk, pool, and transformer
were barred by the policy's anti-concurrent clause.
(See generally PI. Opp., ECF No. 43). However,
Plaintiff now argues this Court failed to review certain
portions of Heacock's deposition, which Plaintiff argues
is where Heacock sets forth his opinion that the boardwalk,
pool, and transformer sustained wind damage, and no water
damage. (PL br., ECF No. 57-1, at 1-2). In its briefing on
the present motion for reconsideration, Plaintiff quotes six
excerpts of Heacock's deposition transcript.
(Id. at 7-11). These deposition excerpts were either
completely omitted from the exhibits that were attached to
the parties' summary judgment briefs, or were partially
omitted in the prior submissions. (See ECF No.
39-10, Excerpts of Dep. Of Heacock; see also ECF No.
43, Plaintiff's Opp. To Summary Judgment and Supporting
Documents). Moreover, Plaintiff has not attached these
excerpts as exhibits to its present motion for
reconsideration. (See ECF No. 57). As such, the
Court is unable to confirm the veracity of the Plaintiffs
quoted portions of Heacock's deposition included in
Plaintiff's present brief on its motion for
reconsideration. For this reason, the Court, in its
discretion, declines to consider this evidence because it was
readily available at the time the motion was heard, but never
submitted to the Court. See Florham Park Chevron, Inc. v.
Chevron U.S.A., Inc., 680 F.Supp. 159, 163 (D.N.J. 1988)
(denying motion for reconsideration based on previously
available evidence because "[a]ny . .. exhibits in
possession of the parties at that time relevant to the motion
for summary judgment should have been advanced then.").
even if this Court were to review and consider the quoted
portions of Heacock's deposition, the Court sees no
reason to change its prior opinion. The quoted portions,
where they conflict with Heacock's expert report, are
inadmissible net opinions. The net opinion rule renders
"an expert's bare conclusions, unsupported by
factual evidence" inadmissible. May v. Atlantic City
Hilton, 128 F.Supp.2d 195, 198 (D.N.J. 2000). "The
rule frequently focuses on the failure of the expert to
explain a causal connection between the act complained of and
the injury allegedly resulting therefrom." Id.; see
also Zeller v. J.C Penney Co., No. 05-2546, 2008 U.S.
Dist. LEXIS, at *22 n.13 (D.N.J. Mar. 31, 2008) ("[T]he
net opinion rule is merely a restatement of the well-settled
principle that an expert's bare conclusions are not
admissible under Rule 702 of the Federal Rules of
newly revealed deposition testimony, Heacock asserts: that
the wind solely contributed to the damage to the boardwalk,
though the flood water may have carried some of the boardwalk
away; that he did not observe any water damage to the
transformer; and that the initial damage to the pool was from
the wind, but flood may have dislodged the pool.
(See PL br. 8-11). Heacock offers no support for the
bare conclusions reached in his deposition testimony.
Further, these conclusions are not supported by his expert
report previously submitted to this Court. (See,
e.g., Heacock Report, ECF No. 39-9). Accordingly, to the
extent the Court considers the deposition excerpts of Heacock
that were not previously submitted in the prior motion for
summary judgment, the Court determines that these are
inadmissible net opinions.
these reasons, Plaintiff's Motion for ...