* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60153

Summary Calendar

BETTY BERRY; JAMES MINTER; GEORGE DEATON; LUKE FUNCHESS;

HERMAN MAY

Plaintiffs-Appellants

v.

BORG WARNER; KUHLMAN CORPORATION; PFIZER INC; PHARMACIA

CORPORATION, formerly known as Monsanto Chemical Company

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:04-CV-134

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Betty Berry, James Minter, George Deaton, Luke

Funchess, and Herman May (collectively,the “Plaintiffs-Appellants”) are among

the approximately 160 original plaintiffs in this consolidated mass tort lawsuit

who allege that they were exposed to and harmed by polychlorinated biphenyls

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 08-60153

2

(“PCBs”) and other chemicals from Defendant-Appellee Kuhlman Corporation’s

plant in Crystal Springs, Mississippi. The Plaintiffs-Appellants are the only

original plaintiffs who remain in this action; all others either settled and

dismissed their claims or had their claims dismissed for other reasons. The

Plaintiffs-Appellants ask us to reverse the district court’s dismissal of their

complaint with prejudice. They insist only that the court erred by not first

considering or implementing less stringent sanctions for their failure to comply

with the court’s case management order. Convinced that the district court’s

grant of the Defendants-Appellees’ alternative motions for summary judgment

or to dismiss for failure to prosecute was proper on either basis, we affirm.

I. FACTS AND PROCEEDINGS

In June 2005, the district court entered a case management order

requiring each plaintiff to produce, by September 15, 2005, information

concerning, inter alia, his personal background, alleged exposure to PCBs,

medical conditions, work history, and blood testing data, together with an

affidavit from a qualified expert that the subject plaintiff’s medical conditions

were likely caused by exposure to PCBs from Kuhlman’s plant. Possibly because

the parties were engaged in settlement discussions, this deadline, and even

extended deadlines, for these disclosures came and went without any of the

required information being provided. Indeed, an offer of settlement was made

to each ofthe 160 plaintiffs, and 154 accepted. The Plaintiffs-Appellants are five

of the six original plaintiffs who declined the offer.

Following these settlements, the attorneys for the Plaintiffs-Appellants

moved to withdraw as counsel, citing conflicts of interest. The district court

permitted withdrawal and granted the Plaintiffs-Appellants thirty days within

which to retain new council or to notify the court that they were representing

themselves. After the district court extended the time for the PlaintiffsAppellants to employ new counsel, and just before this new deadline passed, the
No. 08-60153

3

Plaintiffs-Appellants informed the court of their intention to represent

themselves. 

A couple months later, in October 2006, Defendants-Appellees

BorgWarner, Inc. and Kuhlman Corporation moved for summary judgment or,

in the alternative, to dismiss for failure to prosecute, citing, inter alia, the

Plaintiffs-Appellants’ failure to come forward with testimony from a qualified

expert indicating that they had illnesses caused by exposure to PCBs from

Kuhlman’s plant. The Plaintiffs-Appellants objected, insisting that they had

essentially been abandoned by their attorneys and that they were not even

aware of the requirements of the case management order. Given these

circumstances,the district court denied the alternative motions atthattime and

ordered the Plaintiffs-Appellants to produce the documentation required by the

case management order by January 8, 2007, warning that their failure to do so

would result in the dismissal of their claims. Shortly before this deadline, the

Plaintiffs-Appellants moved for another extension. The district court granted

this motion and ordered the Plaintiffs-Appellants to respond by February 20,

2007, stating that no further extensions would be granted. 

Around this same time, the Plaintiffs-Appellants had petitioned the court

for assistance in obtaining records from their former counsel. The district court

made available to the Plaintiffs-Appellants, beginning January 8, 2007, thirtyfour boxes that were believed to contain documents responsive to the case

management order. On March 9, 2007, Nathanial Armistad, one of the attorneys

who had withdrawn from the case and whose firm had provided the PlaintiffsAppellants with access to the boxes, filed an affidavit in which he explained,

inter alia, that (1) the Plaintiffs-Appellants did not show up to view the boxes

until February 1st, at which time they spent less than four hours reviewing the

documents; (2) they never again requested access to the documents; and (3) no

written expert reports were issued in the case with the exception of preliminary
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PCB level data, which had already been made available to the PlaintiffsAppellants.

Following receipt of Armistad’s affidavit, and despite the court’s prior

admonishment that no further extensions would be forthcoming, the court

granted the Plaintiffs-Appellants yet another “final extension,” ordering them

to file their disclosures by March 21, 2007, which they did. After reviewing the

disclosures, the district court dismissed their complaint with prejudice, holding

thatthePlaintiffs-Appellants (1) had failed to comply with the case management

order, and (2) did not have sufficient evidence to support their claims. The

Plaintiffs-Appellants filed a motion to reconsider, yet again insisting that they

could not be faulted for their failure to make the necessary disclosures because

they were unrepresented and unaware of what was required by the case

management order. Atthat same time, attorney Michael S. Allred filed a motion

requesting that he be allowed to appear on behalf of the Plaintiffs-Appellants in

the event that the court granted their motion for reconsideration. Attached to

Allred’s motion were the affidavit and expert report of Dr. David O. Carpenter,

a qualified toxicologist. The district court concluded that the record belied the

Plaintiffs-Appellants’ assertions and thus denied their motion for

reconsideration, which mooted Allred’s conditional request.

II. ANALYSIS

On appeal, the Plaintiffs-Appellants contend that the district court erred

by not considering or implementing less severe alternative sanctions before

resorting to dismissal. The record, however, plainly reveals that the court

provided the Plaintiffs-Appellants with numerous opportunities to comply with

its case management order before dismissing their complaint. The PlaintiffsAppellants were granted no less than three separate extensions over a sevenmonth period to provide the required disclosures. Moreover, each time it

granted an extension, the court cautioned the Plaintiffs-Appellants of the
No. 08-60153

1 See, e.g., Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir.

1985) (“Providing plaintiff with a second or third chance following a procedural default is a

‘lenient sanction,’ which, when met with further default, may justify imposition ofthe ultimate

sanction of dismissal with prejudice.”).

2 Dorsey v. Scott Wetzel Serv., 84 F.3d 170, 171 (5th Cir. 1996) (holding that dismissal

for failure to prosecute “will be affirmed only upon a showing of a clear record of delay or

contumacious conduct by the plaintiff, . . . and where lesser sanctions would not serve the best

interest of justice”).

3 See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998) (“We review a dismissal for

want of prosecution or failure to obey a court order for abuse of discretion.”).

5

consequence for failing to meet the applicable deadline. When the district court

granted the first extension, it warned the Plaintiffs-Appellants thattheir claims

would be dismissed with prejudice if they did not meet the extended deadline;

when it granted the second extension, the court informed them that no further

extensions would be provided; and when the court granted a third and final

extension after reviewing Armistad’s affidavit, it notified them that “[u]pon

failure of any plaintiff to provide any of the information required by the case

management order, that plaintiff’s claim will be dismissed.” 

It is pellucid to us that the district court considered and in fact

implemented less drastic alternative sanctions than dismissal when it afforded

the Plaintiffs-Appellants repeated opportunities to comply with its order, each

time advising them of the consequence if they failed to meet the respective

deadline.1 Because (1) there is a clear record of delay and contumacious conduct

by thePlaintiffs-Appellants, and (2) the district court attempted lesser sanctions

(and even helped provide the Plaintiffs-Appellants with access to the required

information),2 we hold that the court did not abuse its discretion when at long

last it dismissed the Plaintiffs-Appellants’ complaint for failure to comply with

the court’s case management order.3

Furthermore, summary judgment in favor of the Defendants-Appellees

was proper because, at the time the district court dismissed the complaint, the
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Plaintiffs-Appellants had not produced any evidence of causation, an essential

element of their claims. Notably, the Plaintiffs-Appellants failed to provide the

affidavit of a qualified expert stating that their alleged medical conditions were

likely caused by exposure to PCBs or other chemicals from Kuhlman’s plant.

Although the Plaintiffs-Appellants attempted to introduce expert testimony in

the form of Dr. Carpenter’s report after the district court had dismissed their

complaint, introduction of this evidence was contingent on the PlaintiffsAppellants’ motion for reconsideration, which the court denied. Accordingly, we

agree with the district court that, based on the evidence that was properly

admitted, there was no “expert testimony, report or affidavit stating that any

plaintiff suffers from any medical condition that was likely caused by exposure

to PCBs,” without which the Plaintiffs-Appellants could not prove their claims.

The district court’s dismissal of the Plaintiffs-Appellants’ complaint with

prejudice is 

AFFIRMED.