Opinion
C.A. Nos. 97C-06-193 (CHT), 97C-06-194 (CHT), 97C-07-113 (CHT).
Submitted: December 30, 2003.
Decided: April 27, 2004.
On the Plaintiff's Motion for Consolidation.
Thomas Crumplar, Esquire, Robert Jacobs, Esquire, JACOBS CRUMPLAR, P.A., 2 East 7th Street, P.O. Box 1271, Wilmington, Delaware 19899; and James L. Ferraro, Esquire, Ana Rivero-Alexander, Esquire, Lynn M. Holtzman, Esquire, FERRARO and ASSOCIATES, P.A., 200 South Boulevard, Suite 3800, Miami, Florida 33131, Attorneys for the Plaintiffs.
James W. Semple, Esquire, MORRIS JAMES HITCHENS WILLIAMS LLP, 222 Delaware Avenue, P.O. Box 2306, Wilmington, Delaware 19899; and William L. Anderson, Esquire, Michael L. Martinez, Esquire, CROWELL MORING LLP, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2595, Attorneys for the Defendants.
OPINION AND ORDER
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
As the record reflects, this litigation consists of three separate cases which arise out of physical and mental defects and/or deformities suffered by the eight minor plaintiffs at birth. The plaintiffs contend that their conditions resulted from the exposure of the mothers of the minors while pregnant with them, to Benlate, a product manufactured by the defendant, the DuPont Company. The essence of the plaintiffs complaint is that the Benlate is a teratogen and usage of the product by the plaintiffs as intended by the defendant, unbeknownst to the plaintiffs, caused the injuries around which this litigation centers.
The guardians and/or parents of Philip Brown, Gary Copland, Jared Johnstone, and Khalid Memon filed their lawsuit on July 15, 1997. The guardians and/or parents Emily Bowen and Darren Griffin initiated suit on June 24, 1997. The guardians and/or parents Blake Ison and Jesse Hanham filed suit on June 24, 1997.
Teratogen is "any agent that can disturb the development of an embryo or fetus. Teratogens may cause a birth defect in the child. Or a teratogen may halt the pregnancy outright." WEBSTER'S NEW WORLD MEDICAL DICTIONARY available at http://medterms.com.
The exposure and births are alleged to have taken place between 1984 and 1995. Three of the minors and their respective parents or guardians were residents of England/Wales and three were from Scotland during that period. The remaining Plaintiffs were residents of New Zealand All but the New Zealand mothers were alleged to have been exposed to Benlate while participating in or accompanying someone spraying vegetation during the course of gardening. The New Zealand mothers were alleged to have been exposed to Benlate during the course of their employment in that country. Benlate was sold for personal and professional use in the aforementioned countries as opposed to the United States where it was sold for professional use only.
The defendant denies that Benlate is a teratogen or that the product was in any way responsible for the injuries visited upon the plaintiffs. It argues that there is no reputable scientific evidence to the contrary and that the problems about which the plaintiffs complain had other medically verifiable causes. Additional legal defenses were raised as well.
On May 20, 2003, the plaintiffs filed motions to consolidate the three cases for purposes of pretrial proceedings and trial. They argue that common questions of law and fact predominate and that the defendant would not suffer any prejudice as a result of consolidation. Because of the logistical difficulties posed by the New Zealand cases, the plaintiffs modified their position to request that all but those cases be tried together and the New Zealand cases be tried later. Alternatively they suggest combinations of three trials with the initial trial of the claims of either three or four of the children which would be followed by a second trial consisting of the remainder of the plaintiffs from England/Wales and Scotland The New Zealand claims would be tried last.
The defendant opposes that motion at least in so far as any combination of plaintiffs for purposes of trial is concerned. Notwithstanding the degree of legal and factual commonality which might arguably be said to exist between the cases and/or plaintiffs, there is no combination of plaintiffs for trial purposes which would not result in undue prejudice to the defendants and deny the defendant a fair trial. It does, without waiving that objection, acknowledge that trial of the Bowen and Griffin cases together presents the least objectionable alternative combination. To a large degree, the parties have been able to agree on a coordination of discovery and related pretrial proceedings. To the extent that there have been disagreements in that regard, they have been resolved thru the intervention of the Court.
DISCUSSION
The plaintiffs' motion is based upon Superior Court Civil Rule 42(a). In relevant part, the rule states:
Consolidation. When actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. . . .
In determining whether to grant a motion to consolidate actions, the court has a great deal of discretion. The first question to consider in resolving such a controversy is whether there are common questions of law, of fact, or both. In addressing the issue of commonality, the question is whether there is a sufficient nexus between the cases to warrant consolidation. This in turn involves a review of the substantive and temporal similarity of the evidence to be presented as well as the extent of any geographical ties between the claims and parties.
Olson v. Motiva Enterprises, L.L.C., 2003 WL 21733137, at *4 (Del.Super.Ct.); see also Bryson v. Delaware Sand Gravel Co., 1987 WL 9607, at *1 (Del.Super.Ct.) citing Super. Ct. Civ. R. 42(a).
In determining whether to consolidate actions, the Court must go on to consider any savings in time, effort and cost versus any inconvenience, delay or expense which might result from consolidation. Even where considerations of convenience or savings predominate, a motion to consolidate should not be granted if it would result in undue prejudice or would be fundamentally unfair to one or more of the parties involved, or confuse the jury.
Joseph v. Shell Oil. Co., 498 A.2d 1117, 1123 (Del.Ch. 1985).
Id. at *4-5.
Turning now to the facts of this case, it is evident that there is evidence in the record both in support for and against consolidation.
First, the claims comprising the instant controversy do in fact involve common questions of law and fact. Specifically, there is the question as to whether Benlate is a teratogen generally. There is also the question of whether the exposure to the chemical in each of the cases was responsible for, as well as the extent of any consistency between, the injuries suffered by the minor Plaintiffs. At the very least, each minor Plaintiff suffered severe ocular injury along with retarded development, intellectual, emotional and physical.
Significantly, the witnesses and evidence to be presented in support of each claim will either be the same or substantially similar, at least as to causation. The same conclusion holds true as to that aspect of the defense. On the other hand, by definition, the witnesses concerning the individual damage claims will be different because the treating physicians and related witnesses are different for each of the minor Plaintiffs. The geographic (three countries) and temporal spread (1984 to 1995) between the claims is somewhat problematic and does not appear to militate in favor of consolidation. However, the nature of the testimony and evidence will at least be similar, both in support of and in the defense against that aspect of the individual claims. Counsel for each of the Plaintiffs is also the same as is counsel for Defendant in all three cases.
Given this background, the Court must conclude that the threshold requirement of Rule 42(a) has been met. As noted above, this conclusion does not end the controversy. It leads instead to a further inquiry concerning the existence of any convenience and/or efficiency to be gained if consolidation were to be ordered. At the same time, the Court must ascertain whether consolidation would result in any hardship and/or prejudice to the parties. Finally, it must weigh the positives, if any, against the negatives that might be found to exist in that situation.
While the parties may disagree as to what efficiency there would be or how much would be gained by consolidating the cases, it is readily apparent that there would be some such advantage. Again, the bulk of the testimony as to each claim would focus on the issue of causation given the novelty of the subject matter and the science surrounding it. The attorneys are the same for each claim, and discovery has been conducted jointly for the greater part of the litigation. As a result, there would have to be savings in terms of the time and resources of the parties as well as of the Court, which would in turn favor consolidation.
Notwithstanding the foregoing, it is the final factor, i.e., the potential for juror confusion and/or prejudice to the parties if consolidation were ordered that is the most troubling.
To the extent that the Defendant argues that the issue is novel, the science complex, and as a result, there is likely to be juror confusion if the claims were consolidated, the Defendant is correct. However, that would be the same whether the claims are tried individually, all together or in some combination in between. This factor does not militate against consolidation. The possibility of prejudice presents a different situation.
The novelty of the issue and the complexity of the science involved have a different impact. Combined with the nature of the deformities/injuries suffered by the minor Plaintiffs, any grouping of those individuals would necessarily lend itself to the argument that a jury would be prejudiced against the Defendant based on the commonality of the injuries linked to exposure to Benlate. Stated differently, a jury might impose liability based solely upon exposure to the product given the nature of those conditions and the number of the injured minor Plaintiffs. This obviously militates against a finding in favor of consolidation.
In weighing the convenience to be gained by consolidation versus the prejudice which might result, Rule 42 obviously allows the Court to determine whether the two sides of the equation can be reconciled so that a fair trial results for all involved in the process. Given the circumstances of this case, the Court believes that consolidation to some degree is warranted. To do so in the manner which is outlined below will not result in undue prejudice or hardship to either the Plaintiffs or the Defendant which outweighs the convenience/economies to be gained.
More specifically, the claims filed on behalf of the eight children shall be tried in groups of two, as follows:
1. Emily Bowen (Date/Place of Birth: Cardiff, Wales — August 9, 1994) and Darren Griffin (Date/Place of Birth: King's Lynn, England — November 23, 1995);
2. Phillip Brown (Date/Place of Birth: Ladybank, Scotland — February 15, 1984) and Khalid Memon (Date/Place of Birth: London, England — June 24, 1985);
3. Jared Johnstone (Date/Place of Birth: Kelso, Scotland — September 3, 1993) and Gary Copland (Date/Place of Birth: Strathaven, Scotland — June 6, 1992); and
4. Blake Ison (Date/Place of Birth: Christchurch, New Zealand — November 13, 1993) and Jesse Hanham (Date/Place of Birth — Christchurch, New Zealand, November 10, 1990).
In attempting to balance the various factors involved in light of the parameters of Rule 42 and the case law in this area, the Court has taken into consideration the geographical locations of the alleged exposure of the birth mothers to Benlate and births of the children as well as the nature of the exposure to that chemical along with complaints of the injuries suffered. Other factors involve the temporal associations between the relevant events and conflicting defenses or elements of proof, including, but not limited to evidence, which may have limited admissibility in one case and none in another. Lastly, the Court has considered the impact of consolidation in this manner in so far as the availability of witnesses and counsel are concerned.
Segregating the claims in groups of two achieves some economies of scale in terms of time and resources of the parties and the Court. It also minimizes any possible prejudice which might result from the grouping of the complaints against Benlate in light of the injuries allegedly resulting from being exposed thereto in utero. The claims paired together are sufficiently close in terms of geography and time to make consolidation appropriate, but the number does not suggest a pattern based upon that fact alone. Limiting the number in this fashion also facilitates the prosecution of each individual claim and defense thereto while minimizing the risk of juror confusion based upon the science or the injuries suffered by the children.
Other than the New Zealand Plaintiffs, which are grouped together, the nature of the exposure, i.e., during the course of spraying garden plants or trees, is not dramatically different in any of the remaining six claims. Timing and geography are of greater concern and have been accommodated to the extent possible. In terms of timing, the claims grouped together are fifteen to sixteen months apart, again, with the exception of the New Zealand Plaintiffs, where practical considerations of proof, witness convenience/availability and the limited extent of discovery conducted thus far, have dictated otherwise. The exception, in terms of geography, again, is the New Zealand Plaintiffs, for much the same reasons.
The order of the trials is premised upon the status of trial preparation and the age of the claims. It also takes into account the impact of the reversal of the Court's April 25, 2002 statute of limitations decision and subsequent remand on the issue of pretrial discovery and scheduling of the trial. The Bowen and Griffin claims were chosen to be tried first because, unlike the other six claims, there was no interruption in the pretrial proceedings and discovery, which is virtually complete, and which have failed to reveal any significant problems in bringing these cases to trial before the others. Even defense counsel acknowledges, while not conceding, that to try Bowen and Griffin together presents fewer problems from their prospective than if the cases were tried in some combination, other than individually.
Mark Ison, et. al., Matthew Bowen, et. al., Michael Brown, et. al. V.E.I. DuPont De Nemours And Company, Del. Super., C.A. Nos. 97C-06-193, 97C-06-194, 97C-07-113, respectively, Toliver, J. (April 25, 2002) (Mem. Op.). This opinion was later amended and reissued on April 29, 2002.
In light of prior discussions with counsel, eight weeks have been set aside to try the case, including jury selection. Trial will begin with jury selection on Tuesday, October 12, 2004. Monday, October 11, is a state holiday. The case should go to the jury on or before December 3. The trial day will usually begin at 10:00 a.m. and end at 5:00 p.m. Depending on what is going on, it is likely that we will meet frequently, if not daily, before trial begins at 9:30 or 9:45 a.m., or at the end of the day, at 5:00 or 5:15 p.m.
The pretrial conference will take place on September 27, 2004 at 1:00 p.m. Hopefully it should conclude before 4:00 p.m. The Plaintiffs' draft of the pretrial stipulation should be completed and presented to the Defendant on or before September 10. The Defendant should make whatever additions, comments and/or objections so that the completed stipulation is filed with the Court no later than September 22.
In terms of jury selection, I believe that it would be in everyone's best interests to empanel a "special jury," given the subject matter of the case and the technical information that will be presented. The selection of such a jury is governed by 10Del. C. § 4506 and Superior Court Civil Rule 40. While both of the aforementioned authorities indicate that the party making the request bear the expense of empaneling such a jury, under the circumstances of this case, it would seem appropriate to evenly divide those costs between both sides. Baring some unforeseen argument or change in circumstances, that is what will be done.
The panel of prospective jurors for this trial would be selected and summons issued on or before August 20, 2004. That summons would include a jury questionnaire which would be prepared by the Court based upon submissions from the parties. Those submissions should be filed with the Court on or before July 30. Objections to the proposals shall be filed with the Court on or before August 6. The Court will review the submissions and meet with counsel on August 13 at 1:00 p.m. for purposes of completing the questionnaire.
The dates of the trials of the remainder of the Plaintiffs' claims have not been addressed herein for at least two reasons.
First, until the Bowen/Griffin trial is completed, there will be no experience upon which to base a realistic estimate of the length of any of the other trials. For example, if the Bowen/Griffin trial takes no more than four weeks as the Plaintiffs have estimated, it is likely that two of the combined trials can go forward during the April thru June, 2005 rotation. If not, there could only be one such trial during that rotation and one in the October thru December, 2005 rotation. The final trial would have to take place in 2006. In any event, the Court is finally convinced that back to back trials during the October thru December 2004 rotation are simply not feasible for the reasons articulated in the memorandum of the parties, principally by the defense.
Second, depending upon the outcome of the Bowen/Griffin trial, there may be post-trial proceedings and/or appeals which would affect the remaining trials. There is also the possibility, however remote, that there could be a settlement following and depending upon the outcome of the Bowen/Griffin trial. Once that trial is concluded, the situation will become clearer and the Court, along with the parties, will be in a better position to plan for the future in that regard.
The final issue to be addressed is the scheduling order pertaining to the balance of the pretrial and trial proceedings pertaining to the Bowen and Griffin claims, along with the claims of the other Plaintiffs as consolidated. In that regard, the Court and counsel will meet in chambers on April 27, 2004 at 1:00 p.m. To the extent the parties have not been able to reach agreement, the Court will resolve the differences and schedule the necessary events as it deems appropriate.
CONCLUSION
For the reasons stated above, the Plaintiffs' motion seeking the consolidation of the claims set forth in the civil action numbers listed above is hereby granted to the extent described herein.