EAST ST. LOUIS – Chevron USA and Syngenta, defending national litigation of claims that weed killer paraquat caused Parkinson’s disease, propose to begin the proceedings by weeding out invalid claims.
Their lawyers moved to dismiss about 100 claims in September, alleging deficiencies under statutes of limitations and other laws of 36 states.
They claimed their motions would “clean up the docket, streamline the litigation, and focus the parties’ attention on the critical legal and factual issues.”
Plaintiff lawyers called the motions premature, but last week they stipulated that 63 plaintiffs would dismiss Chevron USA without prejudice.
Decisions on other plaintiffs rest with Chief U.S. District Judge Nancy Rosenstengel.
A judicial panel in Washington consolidated paraquat claims from district courts earlier this year and assigned them to her.
Her docket carried 329 paraquat cases as of Oct. 15.
In September, Chevron USA and Syngenta told her they found invalid cases.
She told them they could file motions to dismiss.
Chevron USA counsel Leon DeJulius filed a motion on Sept. 13, stating that Chevron USA ceased distributing paraquat 35 years ago, and that many cases were time barred in whole or in part.
The motion to dismiss also states:
In six states, a claim accrues on the date when an injury occurs or is discovered, regardless of a plaintiff’s knowledge of its cause.
A limit of two years governs personal injury claims in Alabama.
A default limit of six years governs in Maine, starting at the point at which a wrongful act produces an injury.
In Michigan, claims for injuries caused by a product are subject to a limit of three years and a wrong is done when a plaintiff is harmed.
In Mississippi, a limit of three years generally applies to civil claims.
In Nebraska, a limit of four years governs product liability claims.
In New York, a limit of three years runs from the date of discovery of an injury or the date when a diligent plaintiff should have discovered the injury. Actions under New York’s consumer protection law likewise accrue when a plaintiff is injured.
Some states have enacted statutes of repose that foreclose liability a certain number of years after the sale of a product.
The statute of repose in Illinois requires a plaintiff to bring a strict product liability claim in 10 years from delivery to its initial consumer.
“In other words, any suit alleging exposure that ended by 2010 or 2011 necessarily involved paraquat that was sold before then, and strict liability claims arising from those sales are barred,” DeJulius wrote.
Indiana’s statute of repose provides that a product liability action must be commenced in 10 years after delivery to the initial consumer.
In Tennessee, any action against a manufacturer or seller of a product must be brought in 10 years from purchase.
In Iowa, claims based on product defect or failure shall not be commenced more than 15 years after purchase.
Georgia bars product liability claims 10 years after first sale.
North Carolina bars product liability actions brought more than 12 years after initial purchase.
Connecticut bars liability actions for 10 years after a defendant parted with a product.
DeJulius next challenged warranty claims, stating that:
A uniform commercial code in most states imposes a limit of four years for an action for breach of contract for sale.
The period in those states begins to run at tender of delivery, even if a buyer couldn’t discover a defect until later.
This rule governs in Alabama, Arizona, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New York, North Dakota, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia, Washington, and Wisconsin.
A limit of six years governs in Michigan and that a consumer fraud statute in Minnesota is subject to a limit of six years.
Finally, DeJulius challenged public nuisance claims.
“Courts have long recognized that to avoid turning nuisance law into a monster that would devour in one gulp the entire laws of tort, the boundaries between products liability and nuisance must be respected,” he wrote.
He wrote that courts allow nuisance claims to proceed only where other aspects of a defendant’s conduct beyond selling a product created a nuisance.
“Here, plaintiffs are squarely attacking the product itself rather than some additional conduct that created any alleged nuisance,” he wrote.
“Indeed, many plaintiffs appear to have nearly copied and pasted their core product liability theories under a public nuisance label.”
He wrote that interference with public health means things like keeping diseased animals or maintaining a pond where malarial mosquitoes breed.
Syngenta filed a companion motion adopting Chevron USA’s arguments.
In response on Oct. 13, lead plaintiff counsel Sarah Doles of Clayton, Mo. asked Rosenstengel to deny the motions without prejudice to being asserted later.
She wrote that analysis would be more appropriate at trial, “when a particular state’s law is at issue and the particular facts of the case are being developed.”
She wrote that the motions implicated choices of law involving 36 states, and the court would address an endless array of issues that would regenerate issues.
She wrote that inquiries into statutes of repose would require determination relating to when a product was sold or a plaintiff was last exposed, and that these inquiries wouldn’t streamline the process.
“Rather, they require a complaint by complaint examination of every allegation, which as the case develops during discovery, could be amended,” she wrote.
DeJulius filed a joint reply for Chevron USA and Syngenta on Oct. 20, stating that Rosenstengel already rejected the position of plaintiffs.
He wrote that selection of trials would be more educated and informed after Rosenstengel has ruled on the scope and nature of the claims.
“The rulings will also guide plaintiffs’ lawyers around the country as they solicit and file new cases,” he wrote.
He disputed the prospect of endless issues, writing that the only relevant facts were alleged in plaintiffs’ complaints.
On Oct. 29, the parties stipulated that 63 plaintiffs didn’t provide a basis for liability of Chevron USA for exposures beginning in 1990 or later.
The firm of Fears Nachawati in Dallas represents 27 of those plaintiffs.
Stephen Tillery of St. Louis represents four.
The Gori firm of Edwardsville, Schlichter Bogard of St. Louis, and Onder Law of Webster Groves, Mo. each represents one.
The parties also stipulated that 43 plaintiffs would dismiss claims against Chevron Phillips Chemical, Chevron Corporation, and Phillips 66, without prejudice.
The firm of Gustafson Gluek in Minneapolis represents 16 of those plaintiffs, and Lockridge Grindal Nauen of Minneapolis represents 14.
The Gori firm, Christopher Cueto of Belleville, and the firm of Carey Danis in Clayton, Mo. represent one each.
Rosenstengel adopted the stipulation on Nov. 1, and gave plaintiffs five days to dismiss claims accordingly.