EAST ST. LOUIS - Chief U.S. District Judge Nancy Rosenstengel, who waited eight months for paraquat lawyers to sweep empty claims from her court, grabbed a judicial broom on Jan. 22 and started the job herself.
She ordered depositions of 25 plaintiffs in litigation against Syngenta and Chevron on claims that the weed killer caused Parkinson’s disease.
She wrote that discovery regarding them would provide representative data about where claims are plausible and substantiated and would expose non meritorious claims.
She wrote that she “remains concerned that a significant number of plaintiffs in the multi district litigation, which now total over 5,000, do not plausibly allege exposure to paraquat.”
She stated the list should be considered preliminary.
“Additional depositions may be ordered after these are underway and the court has reviewed the submissions,” she wrote.
Allen Smith of Ridgeland, Mississippi and Madison Keyes of his firm represent ten of the plaintiffs on the list.
Rosenstengel presides by appointment of a panel of judges in Washington who consolidated cases from many districts in 2021.
She planned a series of jury trials to shape a global settlement, and she selected six trial plaintiffs.
Last February, Chevron moved to dismiss plaintiffs whose deaths it found in online obituaries.
Chevron claimed some plaintiffs died before they sued and some who died after suing lacked estate representatives to pursue claims.
On May 5, Rosenstengel lost a third of her trial plaintiffs when Robert Walkington and Eve Marx voluntarily dismissed their claims.
James Onder of St. Louis County represented Walkington, and Gibbs Henderson of Dallas represented Marx.
On May 18, Rosenstengel addressed the plaintiffs who died and plaintiffs who dismissed by ordering lawyers to submit statements stating whether each client is alive and whether counsel is in contact with the client or the estate.
On Marx and Walkington, she wrote that they proceeded with substantial fact and expert discovery but were voluntarily dismissed “due to evidentiary issues.”
“Considering the revelations in the deceased plaintiffs motion and the voluntary dismissal of Marx and Walkington, the court is concerned about cases that present implausible or far fetched theories of liability,” she wrote.
She quoted a judge who found the evolution of multi district litigation produced incentives to file cases that wouldn’t be filed if they had to stand on their own merit.
“Given the current size of the litigation and the pace of filings, the court would like to identify such cases now rather than letting them remain on the docket indefinitely,” she wrote.
Rosenstengel directed the parties to confer regarding theories of proof so implausible that good faith mandated voluntary dismissal.
On June 20, Syngenta counsel Ragan Naresh of Chicago moved for docket control.
“Neither Ms. Marx nor Mr. Walkington could identify a witness to testify that the product sprayed in their vicinity was in fact paraquat,” he wrote.
Naresh claimed some plaintiffs didn’t have Parkinson’s disease.
He also claimed some alleged they used paraquat in dry mix or premixed, which defendants never sold.
He claimed some alleged they used it where it wasn’t permitted, such as school grounds, and some alleged they used it before 1964, when paraquat came to the market.
“Some cases have gone through full fact and expert discovery, and voluntarily dismissed with prejudice rather than face summary judgment,” he wrote.
“Others went through limited discovery, and even that limited discovery demonstrated that plaintiffs were not exposed to paraquat,” he added.
“Others selected for discovery voluntarily dismissed to avoid discovery altogether,” he continued.
At a hearing in August, Rosenstengel postponed trial and told the parties to keep cleaning the docket.
For months, plaintiffs dismissed claims at a rate of 12 a week.
The docket doesn’t show whether her order in May led to each dismissal, but her most recent order regarding depositions showed the response didn’t satisfy her.
She set a March 22 deadline for depositions.
For each deposition, she ordered a joint summary on two pages within 14 days.
It will include plaintiff’s age, whether plaintiff or someone else applied paraquat, basis for belief of exposure, and details of frequency of exposure and use of protective equipment.
If parties can’t agree on a summary, they’ll state their positions and attach a transcript.
She wrote that if discovery reveals there was no good faith basis to sue in the first place, she’ll consider imposing costs and fees in an appropriate amount.
Two of the 25 plaintiffs on the list for depositions have since voluntarily dismissed their claims.
Rosenstengel placed Dale Noble of Ohio on her list, but his counsel Miriam Agrait of Miami dismissed his suit the previous Friday.
A day after Rosenstengel signed the order, plaintiff Michelle Modjeski of Kentucky removed herself from the list by dismissing her suit.
Patrick McAndrew of Pulaski Kehrkehr in Houston represented Modjeski.
As of Jan. 23, Rosenstengel hadn’t set a date for the first trial.