IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SANDRA KIVELL, )
individually, and as Personal )
Representative of the Estate of )
Milton J. Kivell, deceased, )
) C.A. No. N15C-07-093 ASB
Plaintiff, )
)
v. )
)
UNION CARBIDE CORP. et al., )
Defendants.
Decided: January 29, 2018
On Plaintiff’s Motion for Reargument.
GRANTED.
ORDER
On this 29th day of January, 2018, and upon Plaintiff’s, Sandra Kivell,
individually and as representative of the Estate of Milton J. Kivell, deceased, Motion
for Reargument, it appears to the Court that:
1. This Court granted summary judgment on August 30, 2017 in favor of
Defendant Union Carbide Corporation (“UCC”). The Court granted
Defendant’s motion for summary judgment based on Louisiana case law
including Western District of Louisiana’s decision in Roach v. Air Liquid
America.
2. On this Motion, Plaintiff argues that UCC did not advance any of the
evidentiary issues relied on by this Court in its motion for summary judgment,
and thus waived the arguments concerning the presence of asbestos in the Taft
facility.
3. Additionally, Plaintiff’s main argument on her Motion is that evidence, not
available at the time of summary judgment, was discovered by Plaintiff’s
counsel. Plaintiff contends that the contracts, and subsequent documents
produced by Kiewit on August 29, 2017, contain evidence that this Court
determined Plaintiff was missing on summary judgment. On the other hand,
Defendant argues that Plaintiff’s argument falls short of the Rule 59 standard
to show that newly discovered evidence could not in exercise of reasonable
diligence, have been discovered for use at the time of Plaintiff’s motion.
Defendant argues that Plaintiff’s case has been pending since July 2015, and
Plaintiff had approximately two years to conduct discovery.
4. On a motion for reargument under Superior Court Civil Rule 59(e), the only
issue is whether the Court overlooked something that would have changed the
outcome of the underlying decision.1 Thus, the motion will be granted only
if “the Court has overlooked a controlling precedent or legal principles, or the
1
Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000)
aff'd, 763 A.2d 90 (Del. 2000).
2
Court has misapprehended the law or facts such as would have changed the
outcome of the underlying decision.”2 A motion for reargument is not an
opportunity for a party to rehash the arguments already decided by the Court
or to present new arguments not previously raised.3 A party seeking to have
the Court reconsider the earlier ruling must “demonstrate newly discovered
evidence, a change in the law, or manifest injustice.”4 “Delaware law places
a heavy burden on a [party] seeking relief pursuant to Rule 59.”5
5. The Court will consider the documents as newly discovered evidence because
it is a piece of evidence that the Court did not have and was not able to
consider at the time of its decision. Plaintiff seems to have laid out his position
in the initial Motion. Defendant should respond to Plaintiff’s argument
regarding the new evidence and Plaintiff may then reply.
6. Therefore, Plaintiff’s Motion for Reargument is hereby GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
2
Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
3
Id.
4
Brenner, 2000 WL 972649, at *1.
5
Newborn v. Christiana Psychiatric Services, P.A., 2017 WL 394096, at *2 (Del.
Super. Jan. 25, 2017)(citing Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875,
at *1 (Del. Super. Apr. 27, 2007)).
3