EAST ST. LOUIS – Chief U.S. District Judge Nancy Rosenstengel, presiding over 3,800 claims that weed killer paraquat caused Parkinson’s disease, gave plaintiff lawyers 31 days to tell her how many of their clients are dead.
In an order on May 15 she adopted measures that defendants Syngenta and Chevron requested after finding active plaintiffs in obituaries online.
“Based on its review of the parties’ submissions on this issue, the Court has concerns about the integrity of the docket in this litigation,” she wrote.
Rosenstengel wrote that counsel must certify with respect to each plaintiff who had an active case as of May 15 whether the plaintiff is living or deceased.
She wrote that for a living plaintiff, counsel must certify whether counsel is in contact with the plaintiff.
If a plaintiff is deceased, she wrote that counsel must provide a date and certify whether counsel is in contact with the person appointed to act on behalf of the estate.
Rosenstengel wrote that if there is no such person counsel must disclose the status of proceedings to appoint one.
She added that where a complaint was filed or a questionnaire was submitted on behalf of a plaintiff after death, counsel must show cause regarding the circumstances of the submission.
“Any case for which counsel is unable to provide this certification will be subject to dismissal without prejudice,” she wrote.
A judicial panel in Washington consolidated paraquat suits from district courts in 2021 and assigned them to Rosenstengel.
This February, defense counsel Sharyl Reisman moved for an order on deceased plaintiffs.
She claimed Chevron began an investigation after obituaries of two plaintiffs indicated they sued eight and nine months after they died.
Reisman claimed Chevron identified at least 20 complaints or amended complaints that were apparently filed after death.
She claimed Chevron found 39 other cases where plaintiffs died after filing complaints but counsel didn’t disclose the fact to defendants.
She added that plaintiffs' counsel submitted initial or amended questionnaires after death in 13 cases.
“The inherent limitations on Chevron’s investigation make it likely that the problems run even deeper,” she wrote.
Reisman also claimed counsel falsified a deceased plaintiff’s signature on sworn discovery responses.
Lead plaintiff counsel Sarah Doles of Florida filed a response under seal.
Reisman replied that counsel hadn’t bothered to dismiss the improper actions.
She claimed plaintiffs admitted that a firm amended six questionnaires using a verification page that predated deaths of plaintiffs.
Rosenstengel wrote that her order shouldn’t be read to suggest she found that any attorney engaged in misconduct.
She wrote that for purposes of the order she considered counsel to be in contact with a plaintiff if they communicated in the last three months.
She wrote that regular communication is critical in mass torts to ensure that plaintiffs are identifiable for purposes of recovery, if any.
Rosenstengel wrote that she preferred to receive the certifications in an Excel spreadsheet.
She also directed the parties to confer within two weeks regarding cases that present theories of proof so implausible that good faith demands their voluntary dismissal.
She wrote that if defendants believe after conferring that certain cases do not present viable causes of action, they should identify them and seek appropriate relief no later than June 20.
She added that she selected six cases for specific discovery and two were voluntarily dismissed due to evidentiary issues.
She quoted a decision of a Georgia judge that multi district litigation produced incentives for filing cases that wouldn’t be filed if they had to stand on their own merit.
She wrote that she’d like to identify such cases now rather than letting them remain on the docket indefinitely.