Pallano

• Court: Superior Court of Delaware
• Decided: January 4, 2016
• Docket: N09C-11-021
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANAJAI CALCAÑO PALLANO, et al., ) ) Plaintiffs, ) ) v. ) C.A. No. N09C-11-021 JRJ ) THE AES CORPORTATION, et al., ) ) Defendants. )

ORDER

AND NOW TO WIT, this 4th day of January, 2016, the Court having duly

considered AES’s Motion for Separate Trials; 1 Plaintiffs’ Memorandum of Law in

Opposition to Defendants’ Motion for Separate Trials; 2 Plaintiffs’ Opening

Memorandum in Support of a Joint Trial of Plaintiffs’ Claims Commonly Arising

Out of AES’s Dumping of Coal Ash Waste in Arroyo Barril; 3 and AES’s

Opposition to Plaintiffs’ Motion for a Joint Trial; 4 IT APPEARS THAT:

1. This litigation arises out of the alleged unlawful dumping of toxic

industrial waste (“Coal Ash Waste” or “Waste”) in the Dominican Republic by

The AES Corporation (“AES”) and four of its wholly owned subsidiaries, AES

1 AES’s Motion for Separate Trials (“Defs.’ Mot. Separate Trials”) (Trans. ID. 57752904). 2 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Separate Trials (Trans. ID. 57899787). 3 Plaintiffs’ Opening Memorandum in Support of a Joint Trial of Plaintiffs’ Claims Commonly Arising Out of AES’s Dumping of Coal Ash Waste in Arroyo Barril (Pls.’ Mot. Joint Trial”) (Trans. ID. 57753330). 4 AES’s Opposition to Plaintiffs’ Motion for a Joint Trial (“Defs.’ Opp’n”) (Trans. ID. 57898787). Atlantis, Inc.; AES Puerto Rico, LP; AES Puerto Rico, Inc.; and AES Puerto Rico

Services, Inc. (collectively “Defendants”). 5 Plaintiffs, residents of the Dominican

Republic, allege they were “wrongfully exposed to reproductive, carcinogenic, and

other toxins in the Coal Ash Waste, either directly or in utero, and as a result,

suffered severe personal injuries, including birth defects and death.” 6 These birth

defects include, but are not limited to, conjoined twins, missing limbs, missing

organs, internal organs extruding from the body, cranial and bony malformations,

central nervous system injuries, and gastrointestinal deformities. 7

2. Twenty-five plaintiffs initially brought suit against the Defendants.8 By

agreement of the parties, the above captioned matter (Pallano) was designated to

proceed first. 9

3. According to Defendants, a joint trial will cause significant prejudice and

confuse the jury because the fact that there are multiple plaintiffs will improperly

suggest to the jury that there must be a common cause for the Plaintiffs’ birth

defects, even though each Plaintiff has unique injuries. 10 Defendants also argue

that a joint trial will not serve judicial economy because: (1) the Plaintiffs’

5 Second Amended Complaint ¶¶ 1, 4 (“SAC”) (Trans. ID. 40099941). 6 Id. ¶ 16. 7 Id. ¶ 2. 8 Pls.’ Mot. Joint Trial at 1–2. 9 Id. See also Trans. ID. 43495871. 10 Defs.’ Mot. Separate Trials at 10–12; Defs.’ Opp’n at 13–15.

2 exposures and pregnancies are not similar and occurred at different times; and (2)

each Plaintiff’s alleged injuries are not similar.11

4. Delaware Superior Court Civil Rule 20(a) provides, in pertinent part:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action . . . .

“This rule, like the federal rule it is modeled after, is permissive in nature

with the purpose of promoting trial convenience, expediting the final disposition of

disputes and thereby preventing multiple lawsuits.” 12 However, pursuant to Rule

20(b), the Court “may order separate trials or make other orders to prevent delay or

prejudice.”

5. Pursuant to Delaware Superior Court Civil Rule 42(b):

The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

6. In this case, all of the Plaintiffs’ claims arise out of the Defendants’

alleged unlawful dumping of Coal Ash Waste at the Arroyo Barril port located in

the Samaná Province, and all of the Plaintiffs’ claims rely upon the same theory

that direct or in utero exposure to Coal Ash Waste and its toxic constituents

11 Defs.’ Mot. Separate Trials at 12–14; Defs.’ Opp’n at 15–17. 12 Sequa Corp. v. Aetna Cas. & Sur. Co., 1990 WL 123006, at *7 (Del. Super. 1990)

3 between 2004 and 2008 caused their injuries. All of the claims sub judice share

evidence and witnesses relating to the Defendants’ dumping and removal of the

Coal Ash Waste, testimony from AES’s representatives and eyewitnesses from

Puerto Rico and the Dominican Republic, and expert testimony relating to

causation and damages. Although the Plaintiffs’ injuries are not identical, many of

the Plaintiffs have similar injuries, including cognitive and developmental delays,

limb abnormalities, and digestive abnormities.

7. This litigation began in 2009 and trial is scheduled to begin

April 4, 2016. After considering the parties’ arguments, the facts of this case, and

the relevant rules and law, the Court does not find that separate trials are

warranted. Severance would be inefficient, duplicative, and expensive.

WHEREFORE, for the foregoing reasons, Defendants’ Motion for Separate

Trials is DENIED and Plaintiffs’ Motion for a Joint Trial is GRANTED.

IT IS SO ORDERED.

Jan R. Jurden, President Judge