EAST ST. LOUIS - Chief U.S. District Judge Nancy Rosenstengel, who has been combing through cases alleging weed killer paraquat caused Parkinson's disease for plaintiffs she could trust had legitimate claims, decided not to trust any of them and ordered discovery for everyone.
On Feb. 26, she ordered every plaintiff among more than 5,000 to serve subpoenas on third parties for evidence that would prove use of paraquat or exposure to it.
“Each plaintiff is encouraged to serve any and all subpoenas he or she believes are necessary to establish documentary proof of his or her use of or exposure to paraquat,” she wrote.
“This additional limited third party discovery will provide plaintiffs an opportunity to better determine the strength of their claims as well as expose non meritorious claims,” she added.
Rosenstengel set a March 11 deadline for serving subpoenas and specified 21 days for their return.
She gave plaintiffs ten days to upload any documents they receive.
She acted after reviewing results of a test she performed on 25 plaintiffs.
Paraquat plaintiffs seek damages from producer Syngenta and former producer Chevron.
A judicial panel in Washington consolidated suits from federal courts at the outset of litigation in 2021 and assigned Rosenstengel.
She planned to shape settlement by holding trials, and she selected six bellwether plaintiffs.
She set a first trial to start last October.
Chevron sounded an alarm about a year ago after it scanned online obituaries of plaintiffs and identified some who died before they sued.
Chevron also identified plaintiffs who died after suing but remained on the docket without death notices or motions to substitute estate representatives.
A second alarm rang when two trial plaintiffs voluntarily dismissed their claims.
Rosenstengel dealt briefly with dead plaintiffs in an order last May and turned her attention to cases that presented “implausible or far fetched theories of liability.”
She set four categories, starting with plaintiffs who have no information concerning exposure to paraquat as opposed to a different product.
She also set categories for those who have no evidence of Parkinson’s disease, those who claim they used a form of paraquat that never existed such as powder and pellet, and for “other evidentiary issues such as those that led to the voluntary dismissal of the bellwether plaintiffs."
Rosenstengel ordered plaintiffs to cooperate with Syngenta and Chevron in cleaning the docket.
At a hearing in August, she vacated the October trial date and ordered the parties to focus on cleaning the docket.
The result didn’t satisfy her so in January she tested her docket by selecting 25 plaintiffs for depositions and third party discovery.
Nine of them voluntarily dismissed their claims.
Rosenstengel stated they reinforced her concerns, and she selected replacements.
On a parallel track, her special master Randi Ellis has reviewed assessment questionnaires that Rosenstengel ordered all plaintiffs to return.
Rosenstengel wrote that Ellis advised her that many plaintiffs have not produced documentary evidence to support their exposure allegations.
“This may be because such proof does not exist or it may instead be because the relevant documentary evidence is in the possession, custody or control of a third party,” she wrote.
“Until now the court has not required plaintiffs to request or produce such documentary evidence,” she added.
She wrote that additional information would assist her in facilitating expeditious, economical and just resolution of the litigation.
She wrote that should a dispute arise in connection with a subpoena, the plaintiff who served it should promptly notify her.
Meanwhile plaintiffs continue dropping out.
On Feb. 20 and Feb. 26, the clerk posted notices that 27 of them voluntarily dismissed claims.
In one case, Jeffrey Benton of Dallas filed a client’s suit on Feb. 11 and dismissed it on Feb. 16.
On Feb. 23, Rosenstengel dismissed 60 plaintiffs who didn’t return questionnaires.
The Pulaski Kehrkehr firm of Dallas filed 46 of those cases.
Tor Hoerman of Edwardsville filed one.
On Feb. 27, the clerk posted notice that she closed 68 cases.