EAST ST. LOUIS – Paraquat plaintiffs who moved to sanction Chevron over deposition of a witness 81 years old brought sanctions on themselves.
Chief U.S. District Judge Nancy Rosentengel struck their motion on Sept. 26, and granted a sanctions motion for Chevron.
Rosenstengel posted the decision without comment and didn’t specify any sanction.
She referred the deposition dispute to special master Randi Ellis and ordered the parties to meet in good faith.
Rosenstengel presides over about 2,000 suits against Chevron and lead defendant Syngenta by appointment of a judicial panel in Washington.
On Aug. 18, Chevron disclosed that toxicologist Richard Cavalli would testify as an expert but not a retained expert.
Chevron hired him in 1969 and he worked on paraquat until 1986, when Chevron left the paraquat business.
On Aug. 22 and 23, he testified for seven hours.
On Sept. 20, plaintiff counsel Peter Flowers of St. Charles, Illinois moved to sanction Chevron and counsel Sharyl Reisman of the Jones Day firm in New York.
“Chevron’s attorneys refused to permit Dr. Cavalli to answer basic permissible questions during his deposition,” Flowers wrote.
According to the sanction motion, Cavalli and Chevron attorneys met several times for two to five hours each time to prepare for the deposition.
Reisman allegedly instructed Cavalli to answer without revealing the content of conversations with counsel.
Flowers claimed it became apparent that Cavalli met with attorneys on breaks and on the evening between the days.
He claimed their conversations weren’t privileged and Cavalli should answer questions about them including those that took place on breaks.
He also claimed Reisman repeatedly instructed Cavalli not to answer questions about documents he reviewed.
He claimed Chevron had no basis for withholding information about documents that a non retained expert reviewed.
He asked for sanctions proportional to intentional violations of rules.
He claimed Rosenstengel’s authority included establishing claims as facts.
He claimed she could prohibit Chevron from opposing claims, supporting defenses, or introducing evidence.
He claimed she could stay proceedings, render default judgment, or treat failure to obey as contempt of court.
He asked her to compel production of all documents Cavalli considered or relied upon and all correspondence between him and counsel.
He asked her to prohibit Reisman from defending the second deposition or any deposition of an expert, retained or not.
He asked for permission to bill Chevron for the second deposition and for review of documents Chevron would produce under order, plus travel expenses.
Finally, he asked for a monetary sanction against Jones Day.
On Sept. 23, Reisman’s colleague Leon DeJulius filed an emergency motion to strike Flowers’s motion.
DeJulius claimed plaintiffs sought to transform an ordinary discovery dispute into a personal attack on a Chevron lawyer.
He claimed they bypassed the ordinary process and the special master.
He claimed Chevron disclosed Cavalli as a non retained expert, “to avoid any dispute with plaintiffs regarding whether he was properly noticed.”
He claimed Chevron served a disclosure stating Cavalli wouldn’t testify regarding the state of paraquat science after 1986, and plaintiffs didn’t object.
He claimed Cavalli didn’t offer opinions regarding paraquat’s current safety.
He claimed Cavalli didn’t review any studies after 1986 and didn’t keep up with toxicology after retiring in 1999.
He claimed Cavalli testified about what he knew, his recollection of studies prior to 1986, and reasons why Chevron didn’t believe it needed additional studies.
He claimed plaintiffs didn’t follow up with document requests or attempt to confer with Chevron since the deposition.
He claimed Chevron would address their materially misleading statements and factual misstatements at an appropriate time if necessary.
He addressed one statement, claiming counsel had no substantive discussions with Cavalli during breaks.
Rosenstengel resolved the motions three days later.
She plans to hold trials for plaintiffs she and the parties carefully selected with a goal of reaching verdicts that would shape mass settlement.