Avance v. Kerr-McGee Chemical LLC

241 F.R.D. 585, 2006 U.S. Dist. LEXIS 95896, 2006 WL 4399660
CourtDistrict Court, E.D. Texas
DecidedJune 12, 2006
DocketNo. 5:04CV209
StatusPublished

This text of 241 F.R.D. 585 (Avance v. Kerr-McGee Chemical LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avance v. Kerr-McGee Chemical LLC, 241 F.R.D. 585, 2006 U.S. Dist. LEXIS 95896, 2006 WL 4399660 (E.D. Tex. 2006).

Opinion

ORDER

CRAVEN, United States Magistrate Judge.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for Assignment of Duties to United States Magistrate Judges, Defendant’s Motion for Separate Trials (Docket Entry #376), Plaintiffs’ Motion to Name Trial Groups (Docket Entry # 379), Plaintiffs’ Motion to Amend the Scheduling Order to Set New Deadlines for the Completion of Briefing on Pending Motions (Docket Entry # 596) were referred to the Honorable Caroline M. Craven for the pux’poses of hearing and determining said motion. The Court, having reviewed the relevant briefing and hearing arguments of counsel,1 issues the following Order.

BACKGROUND

On September 9, 2004, June Pryor Avance and numerous other plaintiffs (“Plaintiffs”) filed this lawsuit against Kerr-McGee Chemical LLC (“Defendant”), seeking damages caused by their alleged exposure from 1960 to 2004 to Defendant’s creosote and pentachlorophenol. Currently, the case is scheduled for jury selection on September 5, 2006.

THE PARTIES’ POSITIONS

Defendant’s Motion for Separate Trials

On April 24, 2006, Defendant filed its current motion. Pursuant to Rules 20, 21 and 42 of the Federal Rules of Civil Procedure, Defendant moves for separate trials of the individual plaintiffs claims in this case. According to Defendant, each of the 32 or 33 individual plaintiffs2 raise highly particularized claims about his or her alleged exposure and claimed injuries, ranging from asthma and benign rectal polyps to various forms of cancer, cerebral palsy, and endometriosis. Defendant asserts individual trials will prevent coxxfusion to the jury, inefficiency, and prejudice. Defendant points out it has moved to exclude certain expert testimony as to one plaintiff but not to another which, according to Defendant, could cause confusion if the Coux't gx’ants some or all of Defendant’s motions and Plaintiffs are tried together.

Plaintiffs’ Motion for Trial Groups

On April 25, 2006, Plaintiffs filed a Motion to Name Trial Gi'oup, requesting the Coux’t name a trial group consisting of five plaintiffs, all of whom resided at 3101 Cottonwood and each of whom allegedly suffer from various fox-ms of cancer, birth defects, or other serious disorders. They all resided at the same home which, according to air modeling, had the highest exposure. Plaintiffs assert the juxy deserves to see the complete environment history of the house. Plaintiffs at least think families should be able to try their claims together.

Defendant asserts each of the five plaintiffs picked by Plaintiffs’ counsel as the initial trial group are asserting different injuries, different routes and duration of exposures, different fact witnesses, and different treating physicians, and Defendant has different defenses for each plaintiff, taking into account their respective medical histories. Defendant maintains the only common denominator in the proposed tidal group is the address on Cottonwood street. For these reasons, and others, Defendant insists the proposed trial group will result in jury confusion.

[587]*587 APPLICABLE LAW

Under Federal Rule of Civil Procedure 20(a), plaintiffs cannot join their claims in a single action based simply on a common question of law or fact. Rather, plaintiffs must also show that their claims arise out of the same transaction or occurrence or series of transactions or occurrences. Fed. R. Civ. P. 20(a). Where plaintiffs’ claims are misjoined, Rule 21 requires that the claims be severed into separate actions.

Additionally, both Federal Rule of Civil Procedure 20(b) and 42(b) allow for separate trials for (a) the purposes of economy and efficiency, and (b) to further justice or avoid prejudice. See FED. R. CIV. P. 20(b), 42(b). The Court has broad discretion under these rules to evaluate and separate parties or claims. S. Ry. Co. v. Tenn. Valley Auth., 294 F.2d 491, 494 (5th Cir.1961)(“Essentially, the question is one that seems to depend on the facts of each case, a matter to be determined by the trial judge exercising a sound discretion.”); Gwathmey v. United States, 215 F.2d 148, 153 (5th Cir.1954) (“[T]he law very wisely allows the trial judge a broad discretion as to methods which shall be used in accomplishing the best results ....”).

DISCUSSION

The Court, having carefully considered the submissions of the parties and hearing arguments of counsel, is of the opinion Plaintiffs’ Motion to Name Trial Groups should be granted and Defendant’s Motion for Separate Trials should be denied. The Court finds convincing Plaintiffs’ arguments for an initial trial group including June Avance, Clyde Russel Pryor, Peggy Veal, Bart Veal, and Britt Veal, all of whom resided at 3101 Cottonwood at some point in time and each of whom allegedly suffer from various forms of cancer, birth defects, or other serious disorders. The Court declines to limit the trials to individual plaintiffs, as requested by Defendant, as this would not allow Plaintiffs’ counsel the opportunity to present a full and fair picture of their case to the jury.

As urged by Plaintiffs, in order for the entire story to be told to the jury, all of the residents of 3101 Cottonwood, past and present, need to be included in one trial. Moreover, all plaintiffs who are members of the same family should have their claims tried together. The Court is not convinced the trial group will necessarily result in juror confusion. For these reasons, the Court designates a trial group consisting of June Avance, Clyde Russell Pryor,3 Peggy Veal, Bart Veal, and Britt Veal. The trial is currently scheduled before the Honorable David Folsom in September of 2006.

Additionally, Plaintiffs have moved to amend the scheduling order to set new deadlines for the completion of briefing on pending motions. In their motion, Plaintiffs request they be allowed to file, no later than August 1, 2006, their sur-replies on the following motions: (1) the motions for summary judgment and motions to strike evidence on the plaintiffs going to trial in September; (2) Defendant’s Motion for Summary Judgment as to the Diagnosed Plaintiffs (Docket Entry #292); (3) Defendant’s Dose Motion (Docket Entry # 313); and (4) Defendant’s Daubert Motions on Mitchell/Templet, Reigart, Farber, Gardner, and Solansky. Plaintiffs also request until August 1 to file their replies to their own Daubert motions relevant to the September plaintiffs, their reply in support of their Motion for Partial Summary Judgment seeking a determination that Coal Tar Creosote is Capable of Causing Human Cancers (Docket Entry # 307), and their response to Defendant’s motion to strike evidence from that motion.

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Related

Gwathmey v. United States
215 F.2d 148 (Fifth Circuit, 1954)

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Bluebook (online)
241 F.R.D. 585, 2006 U.S. Dist. LEXIS 95896, 2006 WL 4399660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avance-v-kerr-mcgee-chemical-llc-txed-2006.