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Rosenstengel orders Wendler to make genuine good faith effort to resolve discovery dispute in Nivea lotion litigation

MADISON - ST. CLAIR RECORD

Friday, November 22, 2024

Rosenstengel orders Wendler to make genuine good faith effort to resolve discovery dispute in Nivea lotion litigation

Federal Court

EAST ST. LOUIS – Chief U.S. District Judge Nancy Rosenstengel stayed out of a discovery dispute upon finding Edwardsville lawyer Brian Wendler didn’t try to resolve it without her.    

Rosenstengel denied his motion to compel discovery from Beiersdorf Inc. of Connecticut on Sept. 10, finding he should have conferred with opposing counsel.  

She found his motion didn’t contain essential facts to establish good faith. And, she admonished him to take seriously the requirement in federal civil procedure for resolution of discovery disputes without court intervention. 

Wendler represents Mahogany Bolden of St. Clair County, who sued Beiersdorf and Wal-Mart in the county court in January. 

She claimed a Beiersdorf lotion of the Nivea brand burned and irritated her skin, causing painful, severe, and permanent injuries. 

Wendler alleged Beiersdorf failed to test its product properly, supply instructions for spot testing, or supply warnings that it could cause chemical burns. 

He claimed defendants were aware of adverse and severe reactions and they failed to inform consumers and sales representatives. 

Defendants retained attorney Jaclyn Kinkade of Cassiday Schade in St. Louis, who removed the suit to district court in February. 

In May, Rosenstengel set trial next March. 

After a conference in June, she filed minutes stating that if a discovery dispute should arise, the parties should file a motion and a response. 

It arose and on July 17, defendants moved to extend the discovery deadline from July 18 to Aug. 17. 

Kinkade wrote that she first learned of the product at issue and the alleged date and location of the purchase on July 7. 

She wrote that she “had to go to plaintiff’s counsel’s office in order to view the product, photographs, and receipts identified in plaintiff’s initial disclosures. 

“Given that defendants only learned the actual allegations in this matter ten days ago, there has been insufficient time to answer plaintiff’s 42 requests for production of documents and 21 interrogatories directed at each defendant.” 

Rosenstengel denied Wendler’s motion in four days, reminding the parties that she wanted them to confer before asking her for assistance. 

The parties conferred a day later but it didn’t go well and Kinkade amended her motion and filed it before sunset. 

She wrote that she had prior communication about time to respond, “but plaintiff’s counsel indicated he was not inclined to consent to the required extension.” 

She wrote that counsel wouldn’t agree to an extension longer than seven days.  

Rosenstengel granted Kinkade’s motion on that date and admonished the parties to work cooperatively when possible. 

Cooperation ended on Aug. 28, when Wendler moved to compel Beiersdorf. 

He certified that he personally conferred with Kinkade on Aug. 25. 

“No accord was reached,” Wendler wrote. 

Kinkade responded on Sept. 9, claiming Wendler cold called her while driving. 

She claimed it was difficult to hear him and at one point the call disconnected. 

She claimed he made no concession or movement towards reasonable resolution but demanded she withdraw her objections. 

She claimed he refused to amend the scope or time frame of a single request but made the call so he could file his motion. 

She called his requests vastly overbroad and unduly burdensome. 

She claimed 100 of 129 pages in Bolden’s discovery were pictures of her breasts. 

She claimed Bolden allegedly saw a nurse practitioner on one occasion who ordered Benadryl and a corticosteroid pill. 

She claimed she recently learned that in 2018, Wendler wrote to Beiersdorf and Beiersdorf offered to test the lotion free of charge. 

“Plaintiff’s counsel was provided a $14 check and a prepaid return label, however plaintiff did not return the product and retains it in his opposition,” Kinkade wrote. 

She claimed that in the year Bolden purchased the lotion, there was one complaint made to Beiersdorf of a burning sensation associated with the product. 

Rosenstengel denied Wendler’s motion and found the matter apparently could be easily resolved. 

She directed him to make genuine good faith efforts to resolve the dispute. 

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