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Medisim Ltd. v. BestMed LLC

April 23, 2012

MEDISIM LTD., PLAINTIFF,
v.
BESTMED LLC, DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Medisim Ltd. ("Medisim") brings this action against BestMed LLC ("BestMed") for patent and copyright infringement, unfair competition, false designation of origin, false advertising, deceptive acts and practices, unfair competition, and unjust enrichment. On March 6, 2012, I issued an opinion on cross-motions to exclude various expert reports ("March Opinion"). Medisim ow moves under Local Rule 6.3 for re-consideration of the March Opinion as it relates to its experts, Lipson and Keegan.*fn1 With the Court's permission, BestMed formally opposed the motion.*fn2 For the reasons stated below, the motion is denied in part and granted in part.

II. BACKGROUND

The background to this motion, including a description of the Lipson and Keegan Reports, is fully set forth in the March Opinion. I excluded that portion of the Lipson Report that discussed whether the KD-2201 meets the "deep tissue temperature" limitation of the '668 Patent as unreliable, and also barred him from testifying at trial on that subject.*fn3 I excluded the Keegan Report because Keegan used a flawed control and an improper respondent universe.*fn4

III. LEGAL STANDARD FOR RECONSIDERATION

Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court.*fn5 A motion for reconsideration is appropriate where "'the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'"*fn6 A motion for reconsideration may also be granted to "'correct a clear error or prevent manifest injustice.'"*fn7
The purpose of Local Rule 6.3 is to "'ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'"*fn8 Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."*fn9 Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively, to reargue "'those issues already considered when a party does not like the way the original motion was resolved.'"*fn10 A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced,"*fn11 nor is it a substitute for appeal.*fn12

IV. DISCUSSION

A. Lipson May Testify as to "Deep Tissue Temperature" Insofar as He Does Not Rely on His Flawed Empirical Testing In the March Opinion, I concluded -- based on the arguments of the parties and the scientific literature reviewed by the experts -- that it is impossible to measure "deep tissue temperature" -- as that term was construed in the Markman Opinion -- without using the zero-heat-flux method. Because of this conclusion, I held that Lipson would not be allowed to testify that the Accused Products met the "deep tissue temperature" limitation of the '668 Patent.*fn13

Medisim argues that this holding was flawed in two ways. First, it argues that I misread the scientific literature, and that it is indeed possible to measure "deep tissue temperature" without the zero-heat-flux method, as indicated by Lipson's empirical testing of the KD-2201 in "test mode." Second, it argues that my exclusion of Lipson's "deep tissue temperature" opinions was overly broad, as the flaws identified in the March Opinion only relate to a portion of his testimony on the subject.*fn14

Medisim's first argument is rejected for three reasons. First, Medisim does not point to new evidence, or evidence that this Court overlooked. Second, Medisim does not argue that this facet of the March Opinion results in manifest injustice. Third, and most importantly, it does nothing more than register the belief that the March Opinion was incorrect as a technical matter. Such an argument is a matter for appeal, not reconsideration.*fn15 Accordingly, Lipson may not testify that the KD-2201 meets the "deep tissue temperature" limitation of the '668 Patent based on his empirical testing of that product in "test mode."

Medisim next argues that the March Opinion overlooked the possibility that Lipson's "deep tissue temperature" opinions might find independent support in the 510(k) letters -- including an American Society for Testing and Materials ("ATSM") standard referenced therein -- and deposition testimony of K-Jump witnesses referenced in his report. Accordingly, it asserts that Lipson should be allowed to give his "deep tissue temperature" opinions based on those materials ("Reconsideration Materials").*fn16

As explained in the March Opinion, I have serious doubts regarding whether Lipson's "deep tissue temperature" opinions are correct. On the strength of those concerns, I found that Lipson's opinions on the subject was a mere ipse dixit, and that accepting it as reliable would therefore violate my duty as a gatekeeper. Because of my focus on that issue, I did not give adequate consideration to the Reconsideration Materials -- which ...


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