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Fox v. Cheminova

March 1, 2006


The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge


Presently before the Court is a motion by defendants Cheminova Inc. and Cheminova A/S (collectively, "Cheminova" or "defendants") for an order precluding plaintiffs, James E. Fox and others ("plaintiffs"), from offering evidence regarding punitive damages, or in the alternative, for an order compelling complete responses to damage discovery. Plaintiffs oppose the motion.


A. History of the Discovery Disputes

Prior to February 16, 2006 Only the most recent history of this case relevant for purposes of the present motion will be set forth herein. Pursuant to a conference before me on December 19, 2005, defendants' counsel, in late December 2005, served its first set of damages interrogatories ("Defendants' First Set of Damages Interrogatories") upon plaintiffs' counsel. (See Cheminova Defendants' First Set of Damages Interrogatories to Members of the Plaintiff Class ("Defendants' First Set of Damages Interrogatories"), annexed as Exh. A to Declaration of Robert J. Burns, Esq. in Support of Order of Preclusion, or, in the Alternative, Order Compelling Production ("Burns Decl.").) At some point thereafter, the interrogatories were transformed into a "damages questionnaire" to be submitted to the plaintiff class members. This questionnaire, which paralleled the language of the interrogatories, requested, inter alia, "complete and accurate copies of your federal and state income tax returns for each year from 1995 through 2004, with all filed worksheets, schedules, and forms attached to theses returns. . . In addition, please provide executed Authorizations for years 1999 through 2005. A copy of the Authorization is annexed hereto as Exhibit A." (Defendants' First Set of Damages Interrogatories ¶ 5. See also Defendants' First Set of Damages Interrogatories Exh. A, IRS Form 4506, Request for Copy of Tax Return.) By letter dated December 22, 2005, plaintiffs' counsel moved for a protective order against Cheminova's interrogatories "because most of the information requested by the Questionnaire is, or will be available to Cheminova from Special Master James M. Catterson in the form of claim forms and tax records from approximately 235 class members whose incomes collectively represents at least two-thirds of the income earned by the class." (Pls.' Letter Motion for a Protective Order, from Gladstone N. Jones to the undersigned, dated December 22, 2005, at 1.) Plaintiffs argued that the Questionnaire was unduly burdensome, particularly with respect to the absent class members not part of the group of 235 who had submitted tax records and proof of claim forms to the Special Master (hereinafter, the "settlement claimants"). (Id. at 6-7.) In his conclusion, plaintiffs' counsel stated: "[P]laintiffs urge this Court to enter a protective order that prohibits Cheminova from propounding its proposed Questionnaire on all 1,100 absent class members. Rather, plaintiffs urge the Court to limit discovery to the 235 members who have submitted Proof of Claim Forms and to limit any questionnaire to relevant questions that seek information unavailable to Cheminova through other sources." (Id. at 7.) On January 6, 2006, Cheminova was able to review the files of Special Master Catterson, which included proof of claim forms and miscellaneous (but incomplete) tax returns of the approximately 235 settlement claimants. (Burns Decl. ¶ 5.) By letter dated January 13, 2006, the defendants filed opposition to the plaintiffs' motion for a protective order. Defendants argued that this is a case about individualized, rather than aggregate damages, and that defendants are entitled to damages discovery with respect to all 1,100 class members and not limited to the settlement distribution protocols or information provided to Special Master Catterson by only 235 class members. (Letter from Christopher G. Kelly to the undersigned, dated January 13, 2006.) In mid-January, plaintiffs' counsel produced miscellaneous addition tax returns for certain of the 235 settlement claimants, along with some, though not all, copies of tax return authorizations. (Burns Decl. ¶ 6.)

By order dated January 18, 2006, the undersigned denied plaintiffs' motion for a protective order without prejudice to renewal, depending on the outcome of the initial trial on liability. Thereafter, by Order dated January 19, 2006 and Amended Order dated January 20, 2006, Judge Platt set forth a trial plan by which the three named plaintiffs would be tried on the issues of liability, punitive liability, and causation (for all plaintiffs), and entitlement to pecuniary damages for the three named plaintiffs. (Amended Order by Judge Platt, dated January 20, 2006.) If the jury determines that one or both defendants are liable for punitive damages, then the jury will be reconvened to determine the amount to be awarded the class as a whole for punitive damages. (Id.) By order dated January 26, 2006, I modified the January 18, 2006 order to permit damages discovery in conformance with the trial plan set forth by Judge Platt. The January 18, 2006 order did not, however, affect the denial of plaintiffs' motion for a protective order. (See Order by the undersigned, dated February 17, 2006.) On January 27, 2006, defendants served damages discovery demands addressed to the three named plaintiffs, and interrogatories seeking information regarding plaintiffs' punitive damages claim. (Letter from Christopher G. Kelly to Judge Platt, dated February 9, 2006, at 2.)

Thereafter, by letter dated January 27, 2006, the defendants continued to argue that, because the plaintiffs intend to base their claim for punitive damages on their experts' industry-wide aggregate damages calculations, defendants still needed individual discovery from all 1,100 class members. (Letter from Christopher G. Kelly to the undersigned, dated January 27, 2006.) In response, plaintiffs continued to insist that defendants did not need discovery from all absent class members, and that plaintiffs had produced to defendants the tax records and proof of claim forms for the 235 class members who participated in the partial settlement. (Letter from Gladstone N. Jones to the undersigned, dated February 2, 2006.) Then, by letter dated February 9, 2006, defendants' counsel maintained that not only had it not received interrogatory responses from the entire class of 1,100, it had not received complete responses from the 235 settlement claimants. (Letter from Christopher G. Kelly to the undersigned, dated February 9, 2006, at 1.)

In early February, the parties attempted to resolve some of the discovery disputes. Defendants' counsel states that, over several conferences between opposing counsel, defendants have agreed to defer at this time any obligation for plaintiffs to respond to its damages interrogatories seeking discovery relating to non-pecuniary damages (i.e., Defs.' Interrogatories Numbers 12 and 13). (Burns Decl. ¶ 12.) According to defendants, plaintiffs agreed to provide by February 15, 2006 "all additional documents they could gather regarding the alleged pecuniary damages sustained by the 235 participating settlement claimants" (id.), which would include "written authorizations allowing Cheminova to obtain federal tax returns filed by these plaintiffs from the IRS. . . ." (Letter from Christopher G. Kelly to Judge Platt, dated February 9, 2006, at 3.) Plaintiffs' counsel confirmed this understanding in a letter to Judge Platt dated February 13, 2006, stating "[p]laintiffs are hopeful that by February 15th, we will be able to produce individualized responses to the Damages Interrogatories and an additional executed IRS release form from every one of these approximately 235 absent class members." (Letter from Gladstone N. Jones to Judge Platt, dated February 13, 2006, at 1.) Apparently plaintiffs' hopes did not pan out since this information remains unproduced in large part.

B. The Discovery Disputes at Present

Despite the parties' apparent attempts to resolve at least some of the ongoing discovery issues in this action, on February 21, 2006, defendants filed the instant motion pursuant to Federal Rule of Civil Procedure 37, seeking an order precluding the plaintiffs from introducing at trial any evidence relating to punitive damages, or alternatively, compelling plaintiffs to immediately produce full and complete responses to Cheminova's damages discovery requests. (Defs.' Mem. at 2.)

Defendants argue that such relief is necessary because plaintiffs' incomplete document productions and insufficient interrogatory responses have prejudiced defendants and deprived them and their experts of evidence necessary to conduct their damages analysis. (Id. at 3.) Defendants argue primarily that plaintiffs have failed to produce a considerable amount of discovery requested in Defendants' First Set of Damage Interrogatories, propounded on December 19, 2005, particularly information concerning the 235 settlement claimants' tax forms.

(Burns Decl. at 7-10.) According to the defendants, these deficiencies include, inter alia:

i) IRS 1040 Forms

Defendants contend that of "the 215 class claimants whose discovery materials have been reviewed and preliminarily analyzed by Cheminova's experts, approximately 50% are missing 1040 federal tax return forms for all or some years. Of this 50%, approximately two-thirds are missing the 1040 form for all years ...

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