Giglio v. Monsanto Company et al
Filing
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ORDER Granting Defendant's 51 Motion to Bifurcate Discovery. The parties shall lodge an amended discovery plan consistent with this order by 8/10/2016. A telephonic case management conference is set for 8:30 a.m. on 8/17/2016. Signed by Magistrate Judge William V. Gallo on 8/2/2016. (rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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EMANUEL RICHARD GIGLIO,
Case No.: 15-cv-2279-BTM (WVG)
Plaintiff,
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ORDER GRANTING
DEFENDANT’S MOTION
TO BIFURCATE DISCOVERY
v.
MONSANTO COMPANY,
Defendant.
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[ECF No. 51]
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This is a product liability action in which plaintiff Emanuel Richard Giglio alleges
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that exposure to Roundup, an herbicide manufactured and marketed by defendant
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Monsanto Company, caused him to develop non-Hodgkin’s lymphoma. On April 29, 2016,
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Judge Moskowitz partially granted and partially denied defendant’s motion to dismiss.
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ECF No. 37. Plaintiff’s remaining claims include negligence, design defect, failure to warn,
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and breach of implied warranty. Now before the Court is defendant’s motion to bifurcate
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discovery and to limit the first phase of discovery to “general causation,” that is, the
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question of whether Roundup is capable of causing non-Hodgkin’s lymphoma. ECF No.
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51. Plaintiff opposes the motion. ECF No. 53. For the reasons that follow, the Court grants
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defendant’s motion.
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The Federal Rules of Civil Procedure must be “employed by the court and the parties
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to secure the just, speedy, and inexpensive determination of every action,” Fed. R. Civ. P.
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15-cv-2279-BTM (WVG)
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1, and courts are authorized to tailor their scheduling orders to fit the particular needs of
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each case, Fed. R. Civ. P. 16. Courts have recognized that bifurcated or phased discovery
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can be an efficient management tool in certain cases. Compare, e.g., In re Hanford Nuclear
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Reservation Litig., 292 F.3d 1124, 1129 (9th Cir. 2002) (describing as “sensible” phased
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discovery schedule entered in mass tort case), and Perry v. Novartis Pharm. Corp., 564 F.
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Supp. 2d 452, 455 (E.D. Pa. 2008) (granting summary judgment to defendants after
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discovery limited to the issue of causation), with Gonzalez v. Texaco, Inc., No. C 06-2820,
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2007 WL 661914, at *1 (N.D. Cal. Feb. 28, 2007) (denying motion for phased discovery
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in toxic tort action due to concern that phased discovery would lead to increased costs and
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delay), and True Health Chiropractic Inc. v. McKesson Corp., 13-cv-2219, 2015 WL
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273188, at *1-3 (N.D. Cal. Jan. 20, 2015) (denying motion to bifurcate discovery in
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putative class action on grounds that line between class and merits discovery would be
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difficult to police and could cause additional litigation). Of the two other courts handling
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ostensibly similar Roundup cases that have been brought to this Court’s attention, one has
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opted to bifurcate discovery, see Hardeman v. Monsanto Co., 16-cv-525, ECF No. 48 (N.D.
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Cal. June 16, 2016), while the other has not, see Kennedy v. Monsanto Co., No. 16CM-
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CC0001 (Mo. Cir. June 27, 2016).
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Here, the Court finds that conducting discovery in phases is an efficient solution that
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may prevent the parties from engaging in extremely broad and potentially wasteful
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discovery. Whether Roundup is capable of causing non-Hodgkin’s lymphoma is a
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threshold issue on which all of plaintiff’s claims rest, and competent expert testimony is
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generally necessary to establish causation in a personal injury action. See Avila v. Willits
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Envtl. Remediation Trust, 633 F.3d 828, 836 (9th Cir. 2011) (citing Jones v. Ortho Pharm.
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Corp., 209 Cal. Rptr. 456, 462 (1985)). The allegations in plaintiff’s complaint span forty
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years and delve into defendant’s marketing, labeling, and testing of Roundup. Proceeding
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immediately on all issues would subject the parties to highly extensive discovery that may
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ultimately be unnecessary if defendant prevails on its Daubert motion. Limiting phase one
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to general causation, on the other hand, will enable the parties and the Court to arrive
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expeditiously at a potentially dispositive issue that the Court firmly believes can be
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separated from other liability and damages issues.
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Plaintiff makes several arguments against bifurcation. First, plaintiff argues that the
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prospect of full discovery on all issues in the Kennedy case in Missouri state court renders
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illusory any benefit to be achieved from phased discovery in this case. However, although
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proceedings in other Roundup cases have some relevance, the Court is dealing only with
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the case before it. Focusing initial discovery on general causation serves efficiency interests
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for both the parties and the Court, regardless of how discovery does, or does not, proceed
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in Missouri.
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Plaintiff also argues that bifurcation will increase the length and cost of litigation
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because defendant will appeal any adverse decision on the Daubert motion and because
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bifurcation will give rise to unnecessary discovery disputes. Both points are highly
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speculative. Even if defendant were permitted to appeal from an adverse Daubert decision,
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or a decision denying summary judgment, there is no certainty that a stay would be granted
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pending the appeal. And the Court is confident that the parties (in the first instance) and
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the Court (if necessary) will be able to reasonably define the boundaries of discovery on
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general causation and promptly resolve any discovery disputes if they arise.
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Plaintiff also argues that bifurcation will prejudice him by permitting defendant to
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attack his experts twice, once on general causation and again on specific causation.
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However, even if defendant is allowed to attack plaintiff’s experts twice, the same
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opportunity will also be given to plaintiff.
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Finally, plaintiff argues that the importance of the issues—Roundup is an
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extensively used agricultural product—weighs in favor of full discovery. But plaintiff will
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have an opportunity to engage in full discovery as long as plaintiff overcomes the Daubert
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barrier on general causation. Moreover, any public interest in this case surely lies in the
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question of whether Roundup is capable of causing non-Hodgkin’s lymphoma, which is
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the issue on which phase one discovery will focus. The Court therefore finds plaintiff’s
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“importance-of-the-issues” argument unpersuasive.
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Accordingly, the Court grants defendant’s motion to bifurcate discovery. The parties
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shall lodge an amended discovery plan consistent with this order by August 10, 2016. A
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telephonic case management conference is set for 8:30 a.m. on August 17, 2016. No later
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than 4:00 p.m. on August 16, 2016, each attorney participating in the conference shall call
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chambers at (619) 557-6384 and provide a telephone number at which the attorney may be
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reached at the time of the conference.
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IT IS SO ORDERED.
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Dated: August 2, 2016
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15-cv-2279-BTM (WVG)
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