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September 28, 2004.

IN RE: REZULIN PRODUCTS LIABILITY LITIGATION. This document relates to: 00 Civ. 2843 (LAK).

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Plaintiffs originally sought certification of two classes: a nationwide class under Fed.R. Civ. P. 23(b)(3) of all persons who ingested Rezulin and their spouses and a subclass under Fed.R. Civ. P. 23(b)(2) of asymptomatic Rezulin users who have not manifested physical injury and on behalf of which they sought medical monitoring. The Court denied certification in a prior opinion, familiarity with which is assumed ("Rezulin I").*fn1 The critical points, however, may be summarized briefly.

  First, the Court denied certification of the proposed (b)(3) class on the ground that individual questions predominated. The individual questions included, but were not limited to, whether individual class members were injured or subjected to enhanced risk of injury by their ingestion of Rezulin; the circumstances, duration and dosage of Rezulin ingestion of individual class members; and the likelihood that the Court would be obliged to apply the varying law of many states in determining whether plaintiffs were misled by defendants.

  Second, the Court declined to certify the proposed (b)(2) subclass for a number of reasons. These included its conclusions that plaintiffs had not sustained their burden of demonstrating that the medical monitoring relief sought on behalf of the subclass predominates over the damage claims as required by Robinson v. Metro-North Commuter R.R. Co.,*fn2 its view that a medical monitoring class action would be neither sufficiently manageable nor efficient in view of the need to apply the laws of all fifty states to the claims, the impossibility of determining in any practical way whether individuals were members of the proposed subclass (i.e., whether a given individual was asymptomatic or had manifested physical injury), and that the proposed subclass lacked the requisite cohesiveness for a variety of reasons.

  Plaintiffs now move, pursuant to Local Civil Rule 6.3 and Fed.R. Civ. P. 54, for reconsideration. They challenge the denial of certification for the subclass, arguing that (1) Court misapprehended Robinson v. Metro-North Commuter Railroad Co.*fn3 in denying certification of the Rule 23(b)(2) medical monitoring subclass, and (2) state law variations do not render the proposed 23(b)(2) class unmanageable. Plaintiffs do not challenge the denial of certification of the proposed nationwide Rule 23(b)(3) class, consisting of "all persons who ingested" Rezulin.*fn4

  It is important at the outset to recognize that plaintiffs' current position is markedly different from the position they took in seeking class certification. For one thing, they no longer seek a nationwide medical monitoring subclass. Rather, they now propose to exclude class members from certain states and to divide what originally was proposed as a single subclass into six subclasses, each for a different theory of liability.*fn5 Further, the motion for reconsideration rests principally on a five hundred page affidavit, which purports to contain a detailed analysis of the law of each of the fifty states. As will appear, plaintiffs offered neither the affidavit nor any significant discussion of the substance or variation of state law in litigating the class certification motion previously. I The Procedural Framework

  A. Local Rule 6.3

  "[M]otions for reconsideration are intended to bring to the Court's attention matters that it overlooked, not to `examin[e] a decision and then plug[] the gaps of a lost motion with additional matters.' Indeed, as Chief Judge Mukasey . . . wrote, a party seeking reconsideration `is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings."*fn6

  Plaintiffs' motion for reconsideration is governed by Local Civil Rule 6.3, which provides in pertinent part:
"A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. . . . No affidavits shall be filed by any party unless directed by the court."*fn7
The rule aims to achieve the underlying purpose of enhancing the Court's ability to "ensure the finality of decisions."*fn8 Accordingly, relief is available under Local Civil Rule 6.3 only if the movant demonstrates that the "Court overlooked controlling decisions or factual matters that were put before the Court on the underlying motion."*fn9 Such a motion "may not advance new facts, issues or arguments not previously presented to the court."*fn10

  B. Fed.R. Civ. P. 54(b)

  Plaintiffs rely also on Rule 54(b), which states in relevant part that:
"[A]ny order or other form of decision . . . which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
  The clause making interlocutory orders "subject to revision" confirms the Court's necessary power to correct itself. But the fact that a court may revise a prior order does not give a litigant the right to require that it do so, particularly where the litigant seeks revision in light of materials that should have been submitted earlier.*fn11

  Rule 54(b) motions are subject to the law of the case doctrine. Accordingly, the Court need not reconsider prior adjudications unless doing so would be consistent with the objectives of the doctrine*fn12 which include promoting efficiency and avoiding endless litigation by allowing "each stage of the litigation [to] build on the last and not afford an opportunity to reargue every previous ruling."*fn13 Hence, a court will "generally adhere to [its] own earlier decision on a given issue in the same litigation"*fn14 and not depart from earlier rulings without good reason.*fn15 This provides the Court with discretion to revisit earlier rulings "subject to the caveat that `where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again'."*fn16 Accordingly, courts will consider revising earlier orders only when presented with "cogent or compelling reasons."*fn17 The moving party ordinarily must demonstrate "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice."*fn18 When newly discovered evidence is the basis for reconsideration, "the proponent must demonstrate that the newly discovered evidence was neither in his possession nor available upon the exercise of reasonable diligence at the time the interlocutory decision was rendered."*fn19 The party moving for reconsideration based on the newly discovered evidence must show that (1) the proffered evidence was unavailable despite the exercise of due diligence by the movant in procuring evidentiary support, and (2) manifest injustice will result if the court opts not to reconsider its earlier decision.*fn20

  II Rule 23(b)(2) Certification and Robinson

  In declining to certify a Rule 23(b)(2) subclass, this Court did not misread or misapply Robinson, the controlling precedent in this Circuit with respect to whether certification of a (b)(2) class seeking equitable relief is ...

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