Mizel v. Xenonics, Inc.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STEVEN M. MIZEL Plaintiff v. XENONICS, INC. Defendant ) ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 06C-02-145-JOH Submitted: January 25, 2008 Decided: February 21, 2008 MEMORANDUM OPINION Upon M otion of the Defe ndant for Rea rgument - DENIED Norman M. M onhait, Esquire, of Rosenthal Mo nhait & Goddess, Wilmington, Delaware, attorney for plaintiff William O. Lamotte, III, Esquire, of Morris Nichols Arsht & Tunnell, attorney for defenda nt HERLIHY, Judge Defendant Xenonics ( Xenonics ) moves for reargument of the Court s denial of its motion to ex clude plaintiff s expert, L ewis D. L owenfels ( Mr. Lowen fels ). Defendant argues that the Court made an error of law in its decision dated January 11, 2008.1 For a detailed fac tual backgrou nd see the C ourts decision issue d on that date. Defendant contends that the C ourt s distinction betwee n the use of the testim ony in Hill v. Equitable Bank2 and in this case was incorrect. Defendant respectfully submits that whether the question of materiality is an ultimate question given the nature of the case, or is but a step in a theory of liability, the result sho uld be the same [i.e . the testimony should be ex cluded]. 3 The plaintiff responds that defendant has not raised an error of law and simply disagrees with the Court s prior holding. Therefore, as defendant has not raised an appropriate rearg ument issue, th e motion sho uld be denied . Standard of Review Under a Rule 59(e) motion for reargum ent, the only issue is whether the court overlooked something that would have changed the outcome of the underlying de cision. 4 Generally, reargument will be denied unless the underlying decision involved an abuse of 1 Mizel v. Xenonics, 2008 W L 116203 (Del. Super.). 2 1987 WL 8953 (D. Del.)(Expert testimony inadmissable as invading the province of the jury). 3 Defendan t s motion for rear gument p p. 3. 4 McElroy v. Shell Petroleum, Inc., 618 A.2d 91 (Del. 199 2). 1 discretion. 5 Finally , [a] mo tion for rea rgume nt is not inte nded to r ehash th e argum ents already d ecided b y the cou rt. 6 Discussion The Court agrees with plain tiff that defen dant has not raised an erro r of law with regard to the Court s prior decision. Defendant s only argument is th at it disagree s with this Court as to how the holding in Hill relates to this case.7 The Court, howe ver, explained in its origina l decision th at Hill was ina pposite because materiality was not the core issue presen ted here. As stated before, the testimony of Mr. Lowenfels will not invade the province of the jury since it goes to the credibility of M r. Mangerman. A jury determination of whether certain events, had they occurre d, were mate rial is not required in this case. As the testimony is for the purpose of attacking the credibility of a witness, and not to a central ten ent of liability in the case , it will be he lpful to the jury and therefore, will not be excluded . Conclusion For the reasons stated herein, defendant s motion for reargum ent is DENIED. J. 5 Id. 6 Id. 7 See Kennedy v. Invacare C orp., 2006 W L 488590 (Del. Super.). 2
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