IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Tamara K. Gallo, et al., : 

 

Plaintiffs, : 

 

v. : Case No. 2:11-cv-680 

 

E.I. DuPont De Nemours and : JUDGE ALGENON L. MARBLEY

Company, et al., Magistrate Judge Kemp

 :

Defendants. 

 

 OPINION AND ORDER

 This case is a putative class action involving an herbicide

manufactured by defendant DuPont and which was sold under the

registered trade name “Imprelis.” According to the complaint

(and a number of other similar complaints filed in various courts

around the country), Imprelis killed not only the weeds it was

designed to eradicate, but a good bit of other plant life as

well, including mature trees which were located near sites where

Imprelis was applied. When the complaint was filed, DuPont was

still marketing Imprelis, but since that time all marketing of

the product has ceased and it has been recalled.

Shortly after the case was filed, and well before the

defendants’ answers are due, plaintiffs filed a motion asking

that the Court both allow expedited discovery and order DuPont to

stop communicating with potential class members. The former

request is now fully briefed (DuPont responded to both matters in

its memorandum in opposition, but the reply brief addresses only

the discovery issue). For the following reasons, the Court will

deny the request for expedited discovery.

I.

When the motion for expedited discovery was filed, Imprelis

was still being sold and applied as an herbicide for turf. In

fact, it apparently had been marketed as the first real advance

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in turf herbicides in many years. According to the complaint,

however, the unexpected adverse effects of its use began to

appear almost immediately, leading DuPont to issue a series of

communications about the nature of the problems which landowners

were experiencing and the possible causes of those problems. By

July 27, 2011, DuPont had announced that it was considering some

type of remediation and claims program. Plaintiffs, believing

that whatever DuPont was proposing would not be sufficient to

solve the problems it had allegedly created, were, according to

their supporting memorandum filed on July 29, 2011, considering

moving for preliminary injunctive relief. At the same time,

however, they recognized that a number of similar cases had been

filed and that an effort was underway to have all of these cases

consolidated and transferred to the Judicial Panel on

Multidistrict Litigation for coordinated pretrial proceedings.

To prepare for the filing of a preliminary injunction

motion, and for other reasons discussed more fully below,

plaintiffs proposed, in their motion, that they be allowed to

request documents from DuPont prior to the time that discovery

would ordinarily commence, which is on or after the date of the

meeting of the parties required by Fed.R.Civ.P. 26(f). Their

motion listed eighteen separate categories of documents they

wished to ask for, and described this list as a “limited”

document production. At a telephone conference held among the

Court and counsel, plaintiffs stated that they would probably be

satisfied, at least initially, with the production of studies

which DuPont submitted to the United States Environmental

Protection Agency. 

The landscape has changed somewhat since the motion was

filed. According to the parties’ subsequent filings, on August

4, 2011, DuPont voluntarily suspended further sales of Imprelis,

and a week later, the EPA issued a “Stop, Sale, Use, or Removal

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Order” which effectively precludes any further sales of the

product. DuPont argues that these actions nullify any need for

the plaintiffs to move for a preliminary injunction, and it

contends that there is no other basis for ordering early

discovery - or, for that matter, permitting any discovery pending

the transfer of the case to the MDL, although it has not filed a

formal motion for a stay of proceedings pending that anticipated

transfer. In their reply, plaintiffs take issue with the notion

that there is no longer a need for expedited discovery, and

reiterate their desire to have at least the studies which DuPont

submitted to the EPA produced early on. They have also made

various proposals which, in their view, respond to DuPont’s

concern about the potential for duplicative and inconsistent

proceedings with respect to that production. These arguments

frame the issue which the Court must now decide.

 II.

One of the issues which frequently arises when a case is

awaiting transfer to the JPML is what proceedings, if any, ought

to occur while the case is pending in a potential transferor

court. Often, all such proceedings, even the filing of

responsive pleadings, are stayed on the theory that once the

transfer is ordered and a transferee court is selected, any

pretrial issues are better handled by that court in the course of

consolidated proceedings. Many times the parties agree to a

stay, but occasionally, they have differing views about whether a

stay is appropriate.

Here, although the motion for expedited discovery seems to

raise an issue which is conceptually distinct from the issue of

whether this case should be stayed pending transfer, the

difference between the two is largely illusory. Although it is

true that DuPont has not yet answered, which is one of the events

(although not the only one) which triggers the issuance of a

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notice of initial Rule 16 conference from the Court, plaintiffs

are responsible to some extent for the absence of an answer,

having elected to send DuPont a waiver of service rather than

making service when the complaint was filed. Had plaintiffs done

the latter, the answer date would already have passed, the Court

would likely have scheduled the initial Rule 16 conference, and

the Rule 26(f) meeting of the parties - the triggering event for

discovery - would be imminent or would already have occurred. 

For that matter, now that counsel have appeared for DuPont, the

Court could easily schedule an initial Rule 16 conference and set

into motion the events that would allow plaintiffs to propound

discovery without the need for the Court to accelerate that

process. Thus, the real issue here is not so much whether

plaintiffs should be allowed to serve their discovery somewhat

earlier than the Rules of Civil Procedure contemplate, but

whether they should be permitted to do any discovery for whatever

period of time the case remains pending in this Court.

As DuPont points out, the Court has recently dealt with a

similar issue in the related cases of Hall v. General Elec. Co.,

Case No. 2:07-cv-942 (S.D. Ohio) and Hagwood v. General Elec.

Co., Case No. 2:07-cv-548 (S.D. Ohio). In orders issued in both

cases on December 4, 2007, the Court granted in part and denied

in part a motion to stay the cases pending transfer to the JPML. 

In both Hall and Hagwood, for reasons of judicial economy and

efficiency, and in order to avoid inconsistent or duplicative

proceedings, the Court ordered that 

Any pretrial proceeding which can reasonably be

deferred or which would create a significant risk of

duplicative discovery proceedings or inconsistent

pretrial rulings [be] stayed until a decision on the

motion to transfer is made by the Judicial Panel on

Multidistrict Litigation.

See Hagwood v. General Elec. Co., 2007 WL 4287655, *2 (S.D. Ohio

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December 4, 2007). The Court adopted the test set out in Rivers

v. The Walt Disney Co., 980 F.Supp. 1358 (C.D. Cal.1997), which

focuses on whether a stay will prejudice the plaintiff, whether

the refusal to order a stay will prejudice the defendant, and

“the extent to which judicial economy and efficiency would be

served by the entry of a stay.” Id. at *1. Such a stay is not,

of course, automatic, see Barber v. BP, PLC, 2010 WL 2266760

(S.D. Ala. June 4, 2010), but “[d]uplication of case management

tasks by multiple courts is not an economical use of judicial

resources.” Fuller v. Amerigas Propane, Inc., 2009 WL 2390358,

*2 (N.D. Cal. August 3, 2009). The interest of the public, as

well as that of the parties, is also a factor in the balancing

test to the extent that the litigation touches upon issues of

concern to the broader public. See Dowler v. Medicine Shoppe,

2007 WL 2907519 (S.D. Ohio October 3, 2007). The case law cited

by the parties does not suggest a materially different legal

standard under which to judge this issue.

There is no question that, in general, it is more efficient

to defer discovery in a potential MDL case until all of the cases

which will form part of the MDL are identified, transferred, and

consolidated. Once that occurs, lead counsel are usually

appointed, and discovery such as the production of relevant

documents is done once rather than on multiple occasions in

response to not only multiple, but perhaps different, requests. 

As part of the consolidated process, if any issues arise

concerning either the propriety of the requests or the

sufficiency of the responses, a single judge can make one ruling

which will govern in all cases. The disadvantages of allowing

discovery to go forward in individual cases prior to transfer are

obvious.

On the other hand, as the Court’s subsequent order in the

Hagwood case (see 2007 WL 4572451 (S.D. Ohio Dec. 26, 2007))

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demonstrates, there are times when the possibility that relevant

documents might be destroyed justifies limited discovery if the

aim of that discovery is to preserve those documents for future

proceedings. Additionally, uncertainty over whether or when a

transfer to the JPML will occur, or the likelihood of a

substantial delay in that process, may also favor permitting some

discovery to go forward. And, as plaintiffs’ supporting

memorandum argues, if there is the possibility that injunctive

relief will be necessary to prevent further harm to either the

plaintiffs or the public and the issuance of such relief cannot

await a transfer, any discovery necessary to the determination of

that issue has to occur in the potential transferor court. The

question here is primarily whether, now that the product is off

the market, the risk of harm without some type of injunctive

relief is substantial enough to warrant ordering discovery here,

even though it is clear that the subject of that discovery - the

test results DuPont submitted to the EPA - will be common to all

the Imprelis cases which have been or will be filed. 

The reply brief, which was filed after the EPA’s stop order,

sets forth plaintiffs’ best arguments for discovery prior to

transfer. According to plaintiffs, there is, first of all, no

undue burden to DuPont to produce the studies because they were

already provided to the EPA and can be quickly retrieved with the

push of a button. Second, they note that the information will

have to be produced eventually in the litigation no matter where

it ends up being sent. Third, they argue that despite the fact

that Imprelis is no longer being sold, the harm that is has

caused is ongoing and remediation is needed. The sooner that

remediation occurs, they argue, the sooner the harm will abate,

and the way to get the case moving quickly toward resolution is

to begin discovery now. Plaintiffs argue that they may be able

to assist the EPA in developing a remediation plan, or they may

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be able to make an early demand on DuPont to resolve the case

through a settlement that includes remediation. They also have

not abandoned the idea of seeking preliminary injunctive relief,

and point out that if they do so, they will need to have the

information they seek through discovery to support such a

request.

These types of arguments are not unique to this case. Many

potential MDL cases involve either ongoing harm or present a

strong case for an early settlement. But the harm in most of

these cases, as it appears to be in this one, is primarily

financial, and it is unclear how delaying discovery for a short

period of time might adversely affect the plaintiff class’s

ability to recover money damages, even if the damages are still

increasing. There is no solid evidence that the product has

caused any human injury or that such a risk exists. In short,

this does not appear to be a case which, at this juncture, is a

prime candidate for some type of preliminary injunctive relief.

This is also not a case where there is a substantial risk of

evidence disappearing, or memories growing dim, if discovery does

not begin immediately. This case, and the other twenty-plus

lawsuits, were filed with great dispatch after the alleged

problems with Imprelis began to be noticed. The studies which

plaintiffs seek were submitted to the EPA and presumably will be

maintained by that agency, so they will be available in their

present format even if discovery does not begin immediately. In

short, the case that plaintiffs will be prejudiced by a delay in

discovery is not a compelling one. 

The Court recognizes that plaintiffs have offered to provide

any discovery they receive to plaintiffs in other cases and to

set up an online document depository. They have also suggested

that if DuPont is concerned about a protective order, an

appropriate order can be negotiated now and applied to others who

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want to view the documents. But that simply illustrates the

problem with doing discovery here that will be sought by the

plaintiffs in all of the potential MDL cases. There is no

guarantee that any other group of plaintiffs will, in fact, agree

to the terms of a protective order that these plaintiffs might

find satisfactory, nor is there any mechanism in place to resolve

this type of dispute. Further, there is no guarantee that the

specific discovery sought by these plaintiffs will be the first

discovery which lead counsel in an MDL might seek (although that

is a fairly strong possibility); nevertheless, any initial

discovery request in the MDL case will almost certainly differ

from the one at issue now in at least some respects, and it is

impossible to know whether the differences will be significant to

the progress of discovery. Finally, if DuPont does raise

objections to providing studies (and it has suggested that there

are multiple studies and that they are voluminous), there is the

possibility of inconsistent adjudications of any objections or

motions to compel, as well as the chance that the same battles

will have to be fought more than once, which subverts the

interest in judicial economy which is typically furthered by a

stay. Consequently, neither prejudice to DuPont nor a risk of

duplicative and inconsistent adjudications, with the concomitant

loss of judicial efficiency, can be ruled out.

In the end, the balance of relevant factors favors a stay. 

The Court sees little benefit to plaintiffs from an immediate

commencement of discovery, little prejudice to them from a delay,

and some potential for harm to the defendants and the judicial

interests involved in MDL proceedings if discovery proceeds on an

independent track in this case. While the factors favoring a

stay are not overwhelming, they predominate over the factors

which underlie the plaintiffs’ arguments. For that reason, the

Court will deny plaintiffs’ request for expedited discovery.

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 III.

Based on the above analysis, the Court denies plaintiffs’

motion for expedited discovery (#4, part two).

IV.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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