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Ellis v. Appleton Papers

April 14, 2006


The opinion of the court was delivered by: Norman A. Mordue, Chief Judge



Presently before the Court is the motion by Brenda S. Smith (Dkt. No. 229) to intervene in this consolidated action. For the reasons set forth below, the motion is denied.


In this consolidated toxic tort action, commenced on April 29, 1994, plaintiffs claim that, during the course of their employment by Tompkins County Department of Social Services in Ithaca, New York, they were exposed to carbonless copy paper manufactured by defendants Appleton Papers, Inc. ("Appleton") and Moore Business Forms, Inc. ("Moore"), and that they were injured by toxic substances contained in the paper. On February 14, 2006, this Court issued a Memorandum-Decision and Order (Dkt. No. 226) granting defendants' motions (Dkt. Nos. 217, 218) to preclude plaintiffs' expert witnesses from offering expert testimony in the case. Thereafter, on March 6, 2006, Brenda S. Smith, pro se, made this motion to intervene (Dkt. No. 229).

On March 30, 2006, Appleton filed a Notice of Settlement (Dkt. No. 231). On the same date, the Court signed a Judgment (Dkt. No. 233) which preserved the motion to intervene.

Defendants oppose Smith's motion to intervene. Attached to Appleton's papers in opposition to intervention (Dkt. No. 238, Exh. 1) is the transcript of a deposition of Smith taken in the context of the instant consolidated action in June 2000. Smith testified that she became ill during her employment at Bell Atlantic (formerly Chesapeake & Potomac Telephone Co. of Va.) in Virginia; that Bell Atlantic terminated her employment in February 1992; and that in February 1993 she came to the conclusion that the cause of her injury was carbonless copy paper. Her application for Workers' Compensation was denied on the ground that she failed to demonstrate that her conditions were an occupational disease. The denial was affirmed. Smith v. Chesapeake & Potomac Telephone Co. of Va., 1995 WL 228247 (Va.App. 1995).

According to Smith, she first became involved in litigation against Appleton and Moore in Virginia in July 1993. She states that the parties "refiled" that action in Maryland in July 1994. The Maryland action was dismissed. Helinski v. Appleton Papers, 952 F.Supp. 266 (D.Md. 1997), aff'd Miller-Jackson v. Mead Corp., 139 F.3d 891 (4th Cir. 1998).

Smith brought another action against Appleton in Virginia in 2002. That action was dismissed. Smith v. Appleton Papers, Inc., No CA-01-965-2 (E.D.Va. 2002), aff'd 42 Fed.Appx. 591 (4th Cir. 2002).

Smith had knowledge of litigation brought by Nancy Rutigliano in New Jersey District Court, Rutigliano v. Valley Business Forms, 929 F.Supp. 779 (D.N.J. 1996) (granting summary judgment dismissing action), aff'd Valley Bus. Forms v. Graphic Fine Color, Inc., 118 F.3d 1577 (3d Cir. 1997). Smith testified at her deposition that she learned about Rutigliano's lawsuit in 1994 and that she and Rutigliano maintained "regular" telephone contact thereafter. In 2000, New Jersey District Court entered a permanent injunction enjoining "Nancy Rutigliano, her agents, deputies, servants, employees, attorneys, and Brenda Smith and Sharon McLaughlin, who have been acting in concert or participation" with Rutigliano from disseminating documents subject to a Protective Order issued by that Court. Smith's motion to set aside the injunction and the underlying protective order was denied. Rutigliano v. Appleton Papers, Inc., 2000 WL 1705152 (D.N.J.).

When questioned at her deposition about Sharon McLaughlin, Smith testified: "Sharon McLaughlin is a plaintiff ... with litigation against Appleton and, I believe, Moore, product liability. She lives in Ithaca, New York." Smith stated that she had spoken with McLaughlin by telephone on numerous occasions beginning in 1994 or 1995, and that at the time of the deposition in 2000 they were in almost daily telephone contact. She also stated that in 1995 or 1996 she, McLaughlin and Cinquanti met and discussed with two lawyers*fn1 the possibility of the lawyers' "taking over all of the current cases" (which presumably would have included McLaughlin's, Cinquanti's, and Smith's claims). Smith's deposition testimony made it clear that she possessed detailed knowledge of the progress of McLaughlin's lawsuit in this Court.


A motion to intervene is governed by Rule 24 of the Federal Rules of Civil Procedure.*fn2

Smith does not specify whether she seeks intervention as of right under Rule 24(a) or permissive intervention under Rule 24(b). As discussed below, ...

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