Adams et al vs 3M Company et al

Filing 195

OPINION & ORDER: 1. Court GRANTS in part and DENIES in part DE 62 , DE 66 , DE 69 , DE 75 , DE 78 , DE 81 , DE 85 , DE 88 , and DE 91 . Court DENIES DE 72 and 73 as withdrawn; 2. Court GRANTS in part and DENIES in part DE 63 , DE 67 , DE 70 , DE 73 , DE 76 , DE 79 , DE 82 , DE 86 , DE 89 , and DE 92 . Plaintiffs, in coordination with their respective counsel, may file a joint first amended complaint, limited to basis authorized, b y no later than October 31, 2024; 3. Court GRANTS DE 151 . Plaintiffs SHALL fully comply with Court's Scheduling Order by no later than October 31, 2024, to extent they have not already done so. On that date, the WT&P Plaintiffs also SHALL FILE in record a proper motion for reinstatement, identifying each specific plaintiff is in full compliance with Court's Scheduling Order; 4. Court GRANTS in part and DENIES in part DE 145 and DE 146 . The parties SHALL file a joint status report as specified by no later than October 22, 2024; and 5. Court GRANTS DE 61 and DE 157 . Plaintiff Patricia Blair is SUBSTITUTED in place of Roger Blair, as executrix of his estate. Court DIRECTS Clerk to amend case caption in accordance with this order. Signed by Judge Robert E. Wier on 9/26/2024. (RCB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
BRIAN ADAMS, et al.,
Plaintiffs,
v.
3M COMPANY, et al.,
Defendants.
I.

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No. 7:21-CV-82-REW-CJS
OPINION & ORDER

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Background
This matter involves a mass tort action brought by hundreds of former coal miners and/or

their spouses for personal injuries allegedly arising from the failure of respirators to protect the
miners against exposure to coal, rock, and dust while working in the mines. See generally Compl.
(DE 1-1 at 224–74).

As a result of the allegedly defective respirators, the miners (or,

representatively, their survivors) claim that they suffer from coal worker’s pneumoconiosis
(“CWP” or “black lung” disease), COPD, and other injuries. See id. ¶ 1. Defendants are
manufacturers and sellers of the respirators, or as applicable, their corporate successors-in-interest.
See id. ¶¶ 3, 10, 12, 18. Defendants 3M Company f/k/a Minnesota Mining and Manufacturing
Company (“3M”), Mine Safety Appliances Company (“Mine Safety”), American Optical
Corporation (“AOC”), Cabot Corporation (“Cabot”), Cabot CSC Corporation (“Cabot CSC”),
Aearo LLC (“Aearo”), and Aearo Technologies, LLC (“Aearo Tech”) 1 represent the
“Manufacturing Defendants.” See id. ¶ 11. The “Selling Defendants” consist of Defendants Mine

While Aearo Tech is a named defendant in the action, Plaintiffs do not clearly identify it as a
Manufacturing Defendant. However, subsequent filings confirm that Aearo Tech is a Manufacturing
Defendant. See, e.g., DE 1 (Notice of Removal) at 7 n.2.

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Service Company, Inc. (“Mine Service”), Network Supply a/k/a/ Network Supply, Inc. a/k/a
Roswell, Inc. (“Network Supply”), Regina Mine Supply, Inc. (“Regina Mine”), Carbon Mine
Supply, LLC (“Carbon Mine”), M & M Mine Supply, Inc. (“M & M Mine”), and Kentucky Mine
Supply Company (“Kentucky Mine”). See id. ¶ 18. Plaintiffs bring claims for strict liability,
negligence, breach of implied warranty, punitive damages, and, as applicable for a given plaintiff,
wrongful death against all defendants. See id. ¶¶ 19–35, 51–61. Plaintiffs separately allege
intentional misrepresentation against the Manufacturing Defendants. See id. ¶¶ 36–46. Plaintiffs
also argue that the Selling Defendants are not immune from liability under Kentucky’s
“middleman” statute. See id. ¶¶ 47–50.
Plaintiffs filed this action on April 14, 2021, in Pike Circuit Court. See Compl. Defendants
later removed the action to this Court. See DE 1. After litigation over remand, the matter remains
before the Court. See DE 42 (Sixth Circuit Order).
On May 30, 2023, the Court entered a scheduling order, directing Plaintiffs to answer a set
of targeted interrogatories and produce certain documents within 60 days. See DE 48 (Scheduling
Order). The Court also warned Plaintiffs that failure to comply with those deadlines would result
in the dismissal of their claims without prejudice. See id. at 2. At that point, Plaintiffs would have
an additional 60 days to comply, and if they failed to do so, the Court would dismiss their claims
with prejudice. See id. at 3. The first 60 days came and went with no compliance from any
plaintiff. See DE 57 (Order of Dismissal without Prejudice) at 1. At that time, the Court dismissed
Plaintiffs’ claims without prejudice and again warned Plaintiffs that if they failed to comply with
the Scheduling Order by September 29, 2023, the Court would dismiss their claims with prejudice
in a final order. See id. at 1–2.
The parties have since filed various motions, notices, and status reports in the record

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consequential to the Court’s Scheduling Order. The Court will address each set of filings as
grouped and sequenced most logically. This behemoth, a structure chosen by Plaintiffs’ original
strategies, turns but slowly.
II.

Motions to Reinstate and Sever Claims, for Leave to File First Amended Complaints
By September 29, 2023, Plaintiffs filed notices in the record indicating that they had

answered the interrogatories in compliance with the Scheduling Order. See DE 83 (Notice of
Compliance); DE 93 (Certificate of Service). The plaintiffs (by then) represented by Michael
Martin 2 (the “Martin Plaintiffs”) move to reinstate their claims and sever their claims into separate
individual actions. See DE 62 (Blair Motion); DE 66 (Balthis Motion); DE 69 (Cook Motion); DE
75 (R. Pugh Motion); DE 78 (Dotson Motion); DE 81 (Staton Motion); DE 85 (Perry Motion); DE
88 (D. Pugh Motion); DE 91 (Fleming Motion). The Martin Plaintiffs also move for leave to file
first amended complaints in light of their severance requests. See DE 63 (Blair Motion); DE 67
(Balthis Motion); DE 70 (Cook Motion); DE 76 (R. Pugh Motion); DE 79 (Dotson Motion); DE
82 (Staton Motion); DE 86 (Perry Motion); DE 89 (D. Pugh Motion); DE 92 (Fleming Motion).
In response, Defendants agree that the Martin Plaintiffs provided answers to some of the
interrogatories but challenge the sufficiency of those interrogatories. See DE 94 (3M Status
Report) at 1–2; DE 95 3 (Mine Safety Response); DE 96 (Mine Safety Response); DE 97 (3M
Response); DE 109 (AOC, Cabot CSC, and Aearo Tech Response) at 2. Defendants further note

While Glenn Martin Hammond has withdrawn as counsel for the majority of the plaintiffs in this action,
confusion still remains regarding whether he withdrew his representation for these nine plaintiffs. See DE
194 (Hammond Withdrawal Order). He has not filed anything substantive in the record since September
28, 2023. See DE 83. Since that time, Martin has exclusively submitted filings on behalf of these plaintiffs.
Therefore, for purposes of this motion, the Court will assume Martin is the only attorney representing these
nine plaintiffs.
2

The briefings of the parties and the arguments raised in those filings are nearly identical as to each
individual Martin Plaintiff. Therefore, the Court will only cite to a representative response or reply in lieu
of a swath of record citations for ease of reference.
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that, as of the deadline, none of the plaintiffs had produced the full documents identified in the
Court’s Scheduling Order. See DE 94 at 1; DE 95; DE 96; DE 97 at 2; DE 109. Because Plaintiffs
did not fully or timely comply with the Scheduling Order, Defendants request (in a status report
and not in a formal motion, by operation of the prior rubric) that the Court dismiss all plaintiffs’
claims with prejudice. See DE 94 at 2. The Martin Plaintiffs maintain that they inadvertently
failed to produce the documents because counsel was expecting to receive requests for production
and authorization forms from Defendants. See DE 102 (Reply) at 3–4. Now, the Martin Plaintiffs
represent that they have produced, or are in the process of producing, the identified documents
See DE 102-1 (Exhibit A); DE 102-2 (Exhibit B); DE 105 (3M Reply).
To fairly process the compliance issues, the Court considers its prior orders and the full
case history. In determining if dismissal is an appropriate sanction for the failure to comply with
a discovery obligation 4 or other court order 5, courts consider the following factors: (1) whether the
plaintiff’s failure to comply is “due to willfulness, bad faith, or fault;” (2) whether “the adversary
was prejudiced” by the plaintiff’s dilatory conduct; (3) whether the plaintiff “was warned that
failure to cooperate could lead to dismissal;” and (4) “whether less drastic sanctions were imposed
or considered before dismissal was ordered.” Mager v. Wisconsin Cent. Ltd., 924 F.3d 831, 837
(6th Cir. 2019). A plaintiff acts with the requisite willfulness, bad faith, or fault upon a showing
that his conduct “display[s] either an intent to thwart judicial proceedings or a reckless disregard
for the effect of [his] conduct on those proceedings.” Mulbah v. Detroit Bd. of Educ., 261 F.3d
586, 591 (6th Cir. 2001) (citation and quotation marks omitted). Still, dismissal is only proper

Rule 37(b)(2) provides, “If a party . . fails to obey an order to provide or permit discovery, . . . the court .
. . may . . . dismiss[] the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v).

4

Pursuant to Rule 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order,
a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).

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upon “a clear record of delay or contumacious conduct.” Freeland v. Amigo, 103 F.3d 1271, 1277
(6th Cir. 1997). The Court is well aware of the staggered system it imposed and the efforts to spur
efficiencies in a case where few are readily apparent.
For the first factor, the Court does not find that the record contains sufficient indication of
the Martin Plaintiffs’ intent to thwart proceedings or their reckless disregard for the impact of the
untimely disclosure on the proceedings before this Court. First, the initial 60-day delay is
seemingly a result of confusion over the legal representation of certain plaintiffs coupled with the
enduring silence of former counsel. See DE 102 at 2 (“While the cases were under the control of
Glenn Hammond, they were dismissed.”) id. at 5 (“Plaintiffs’ counsel attempted to contact Mr.
Hammond about the 10 Plaintiffs who discharged Mr. Hammond, but Mr. Hammond did not
respond.”); id. at 6 (“Plaintiffs’ counsel began reaching out in mid-September regarding Mr.
Hammond’s claimed representation [of Plaintiffs] . . . Mr. Hammond refuses to communicate with
counsel . . .”); DE 59 (Martin Notice of Appearance). Second, the additional delay in compliance
resulted from counsel’s confusion over the mechanics of the production. See DE 102 at 2–4. By
all accounts, the Martin Plaintiffs began producing documents upon counsel’s realization that
formal requests for production and authorization forms were not prerequisites to production. See
id.; DE 105 at 3–4. At bottom, the delays were ultimately a product of counsel errors: inaction by
former counsel and misunderstanding by current counsel. The Court, preferential to a merits result,
is “extremely reluctant to [dismiss] a case merely to discipline an errant attorney because such a
sanction deprives the client of his day in court.” Harmon v. CSX Transp., Inc., 110 F.3d 364, 367
(6th Cir. 1997) (citation, quotation marks, and ellipses omitted); see also Mager, 924 F.3d at 838
(“[D]ismissal is usually inappropriate where the neglect is solely the fault of the attorney[.]”)
(citation and quotation marks omitted). Absent any clear record of contumacious conduct or delay

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and given the lack of fault attributable to the Martin Plaintiffs themselves, the first factor counsels
heavily against dismissal with prejudice.
The second factor also weighs against dismissal with prejudice. After current counsel was
alerted to their mistake, the Martin Plaintiffs initiated the production of the documents within nine
days. See DE 102 at 3. A mere nine-day delay is not substantial enough to prejudice Defendants,
especially in the early phases of discovery and well-before the deadline for statute of limitations
discovery and briefing. See DE 48.
As for the third and fourth factors, both slightly favor dismissal with prejudice. The Court
warned the Martin Plaintiffs in its Scheduling Order, see DE 48, and its subsequent Order of
Dismissal without Prejudice, see DE 57, that failure to timely comply with the dictates of those
orders could result in dismissal with prejudice. The Court also first imposed the less drastic
sanction of dismissal without prejudice. See DE 57.
However, altogether, the balance of factors weighs against dismissal with prejudice,
considering the nature of counsel’s errors and the reasonable steps that the Martin Plaintiffs’ have
taken to comply with the Scheduling Order following an initial delay. Moreover, dismissal is a
harsh sanction of last resort. See Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (“The
dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only
in extreme situations showing a clear record of contumacious conduct by the plaintiff.”) (citation
and quotation marks omitted); Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.
1994) (“Dismissal is the sanction of last resort.”). Really, the Court intended the Scheduling Order
and the Order of Dismissal without Prejudice to spur action in the case and facilitate initial
discovery. That intention has come to fruition, if imperfectly. Accordingly, the Court finds that

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reinstating the claims of the Martin Plaintiffs is appropriate; dismissal of those claims with
prejudice is not.
The Court therefore GRANTS DE 62, DE 66, DE 69, DE 75, DE 78, DE 81, DE 85, DE
88, and DE 91 to the extent the motions seek to reinstate the claims of the Martin Plaintiffs. The
Court further DENIES DE 72 and DE 73 as withdrawn by the parties. See DE 136 (Notice of
Withdrawal). As for the sufficiency of the Martin Plaintiffs’ discovery responses, the parties must
make every effort to resolve disputes between themselves in good faith per Local Rule 37.1 before
requesting intervention from this Court. Only if the parties are unable to reach a resolution may
they seek relief through a properly filed Rule 37 motion, and then only per the proper mechanics
as detailed in the applicable reference to a Magistrate Judge.
However, the Court DENIES DE 62, DE 66, DE 69, DE 75, DE 78, DE 81, DE 85, DE
88, and DE 91 to the extent the motions seek to sever the claims of the Martin Plaintiffs. The
Martin Plaintiffs seek to sever their claims because the circumstances of each coal miner’s
employment, use of the respirators, and medical conditions “vary considerably” and are “unique”
to each miner. See DE 62 at 2. Defendants largely do not oppose severance but ask that the claims
remain subject to coordinated management by the Court, including through a discovery plan. See
DE 97 at 2–3; DE 109.
“[T]he court may at any time, on just terms, add or drop a party,” or “sever any claim
against a party.” Fed. R. Civ. P. 21. The determination of whether to sever a party or claim is
within the broad discretion of the district court. See Thompson Thrift Constr., Inc. v. Hyman
Plumbing Co., Civil Action No. 5:13-050-DCR, 2013 WL 3566353, at *1 (E.D. Ky. July 11, 2013)
(“[T]he determination of whether claims should be severed is a discretionary one.”); 7 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1689 (3d ed.). (“[Q]uestions

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of severance are addressed to the broad discretion of the district court.”). The Court should deny
a motion to sever if severance will “result in delay, inconvenience, or added expense to the parties.”
Thompson, 2013 WL 3566353, at *2 .
Relying on its broad discretion in making severance determinations, the Court declines to
sever the claims of the Martin Plaintiffs at this time. The need to promote judicial efficiency and
prevent further delay and inconvenience warrant this result. In an action involving hundreds of
plaintiffs with overlapping claims consisting of similar underlying allegations against the same set
of defendants, separate actions would certainly create duplicative discovery and legal briefing.
Such an arrangement is an ineffective use of judicial resources. Therefore, the claims of all
plaintiffs, for now at least, will persist under the umbrella of one action. See Burton v. Zwicker &
Assocs., PSC, CIVIL ACTION NO.: 10-227-WOB-JGW, 2011 WL 13156939, at *4 (E.D. Ky. Jan.
14, 2011) (“Importantly, judicial economy and efficiency are best furthered by having all of
Plaintiffs’ claims resolved in one action. Severance would lead to quintupling the number of trials,
which would be an inefficient usage of the Court’s resources, especially since all Plaintiffs share
at least some of the same causes of action against the same Defendant.”) (Wehrman, Mag. J.).
The Court further notes that Plaintiffs all chose to join under one complaint, the ill-advised
verbiage of which ultimately allowed 3M to pull the entire raft to federal court. Plaintiffs avoided
costs and pursued perceived benefits from joining together, and 3M took advantage of the posture
to effect removal. The Court will coordinate the discovery and motion practice in and under the
originating case. If there are matters to be tried, the Court may sever trials (or parts of trials) in
the way that makes the most overall sense and best contributes to overall progress. Such steps are
to be determined, but the Court will not sever at this point. Nothing about the case at this juncture,

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which originates in claimed product and damage/causation commonality, convinces the Court that
post-removal atomization into (potentially) hundreds of distinct cases is justified or warranted.
Since the motions for leave to file first amended complaints are ultimately contingent on
the Martin Plaintiffs’ request to sever their claims into separate actions, the Court DENIES DE
63, DE 67, DE 70, DE 76, DE 79, DE 82, DE 86, DE 89, and DE 92 to the extent that the motions
seek to file amended complaints for the purpose of instituting separate actions. Plaintiffs may
specify their factual particulars in discovery. However, only to the extent that the Martin Plaintiffs
seek to file a first amended complaint to allow personal representatives of since-deceased plaintiffs
to pursue wrongful death claims, see, e.g., DE 63, the Court GRANTS DE 63, DE 67, DE 70, DE
76, DE 79, DE 82, DE 86, DE 89, and DE 92. See Fed. R. Civ. P. 15(a)(2) (“The court should
freely give leave when justice so requires.”). Such an amendment more accurately conforms the
Complaint to case developments, and Defendants do not object to the amendment. As necessary,
all plaintiffs may jointly file any first amended complaint, consistent with this permission, by no
later than October 31, 2024.
III.

Motion for Extension of Time
The WT&P Plaintiffs 6 request an extension of time to comply with the Court’s Scheduling

Order due to changes in counsel and the number of plaintiffs with which counsel must coordinate
to collect outstanding information. See DE 151 (Motion for Extension) at 1–2. Defendants oppose
the extension, arguing that the WT&P Plaintiffs cannot justify their request under either Rule 16’s
good cause standard or Rule 6’s excusable neglect standard. See DE 159 (3M Response) at 4–11;
DE 162 (AOC, Cabot CSC, and Aearo Tech Response). The WT&P Plaintiffs respond that they
Throughout their filings, the parties call these plaintiffs (i.e., the non-Martin Plaintiffs) the “Hammond
Plaintiffs” in reference to former counsel. However, Whiteford, Taylor & Preston, LLP and Peterson Law
Office, PLLC now represent this set of plaintiffs; therefore, the Court will now refer to these plaintiffs as
the “WT&P Plaintiffs” for accuracy.

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immediately made efforts to comply with the Court’s Scheduling Order upon learning of the delays
caused by their former counsel. See DE 164 (Reply) at 2, 4.
“[W]hether Rule 6’s ‘excusable neglect’ standard or Rule 16’s ‘good cause’ standard
applies when a party files a motion after the scheduling order deadline . . . is a source of ambiguity”
in the Sixth Circuit. Century Indem. Co. v. Begley Co., 323 F.R.D. 237, 240–41 (E.D. Ky. 2018)
(collecting cases). “In short, the relationship between Rule 16 and Rule 6 is muddled.” Id. at 241.
Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16’s ‘good
cause’ standard is the moving party’s diligence in attempting to meet the case management order’s
requirements. . . . Another relevant consideration is possible prejudice to the party opposing the
modification.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citations and quotation
marks omitted).
Under Rule 6(b), “the court may, for good cause,” grant an extension of time for motions
made after the deadline “if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B). “Neglect exists where the failure to do something occurred because of a simple,
faultless omission to act, or because of a party’s carelessness.” Turner v. City of Taylor, 412 F.3d
629, 650 (6th Cir. 2005). To determine if neglect is excusable, courts consider the following
factors:
(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and
its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether
the delay was within the reasonable control of the moving party, and (5) whether
the late-filing party acted in good faith.
Howard v. Nationwide Prop. & Cas. Ins. Co., 306 F. App’x 265, 266–67 (6th Cir. 2009). Yet,
excusable neglect is “a somewhat ‘elastic concept’ and is not limited strictly to omissions caused
by circumstances beyond the control of the movant.” Id.

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The Court finds that the WT&P Plaintiffs have (situationally, and barely) satisfied both the
Rule 16 good cause and Rule 6 excusable neglect standards. Although the former counsel of the
WT&P Plaintiffs certainly lacked diligence in failing to timely produce the documents identified
in the Scheduling Order—due to no fault of the plaintiffs themselves—present counsel has
consistently shown an apparent good faith effort to comply with pending requests since their
appearance. See, e.g., DE 171 (Notice of Service); DE 172 (Status Report); DE 174 (Notice of
Service); DE 175 (Status Report); DE 176 (Notice of Service); DE 177 (Notice of Service).
Despite this diligence, counsel has faced obstacles to obtaining the necessary information from
former counsel, circumstances beyond the control of the WT&P Plaintiffs and their current
attorneys. See DE 172 at 2; DE 175 at 2. Understandably, a representation of this scale—after a
seemingly unanticipated change in counsel—inherently comes with difficulties in initiating and
maintaining communications with the many plaintiffs involved. See id. At this stage, these barriers
constitutes good cause under Rule 16. While the Court acknowledges that the WT&P Plaintiffs’
delay (a span of three months between the deadline and the motion) is not insignificant, the
prejudice to Defendants is limited at this juncture, when discovery remains in its preliminary
stages. The road will be long in this case.
Similarly, and for the same reasons, the WT&P Plaintiffs’ have made the necessary
showings of good cause and excusable neglect under Rule 6. Former counsel was neglectful in
failing to produce the documents identified in the Court’s Scheduling Order by the deadline. The
failure was a careless, or worse, mistake to the detriment of his many clients. Overall, the balance
of factors renders the neglect excusable on these facts. As discussed, during this early phase of
discovery, the length of delay does not pose intolerable prejudice to Defendants or negatively
impact the Court’s proceedings to an insurmountable degree. While the delays in communication

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between current counsel and the WT&P Plaintiffs is generally within their control, the sheer
number of plaintiffs, in conjunction with the bumpy transition in counsel, creates complications
atypical of most actions. Given these unique circumstances, some delay is expected. Here, the
primary reason for delay is the culmination of the persistent inattention and sloppiness of former
counsel, a mid-game overhaul of the counsel line-up, and continuous issues in client information
from former counsel—factors beyond the control of the WT&P Plaintiffs and, mostly, their current
counsel. Since their appearance, the WT&P Plaintiffs and their counsel have acted in good faith
to produce the necessary documents, steadily working to respond to outstanding requests. See DE
171; DE 172; DE 174; DE 175; DE 176; DE 177. Simply, the Court will not penalize the WT&P
Plaintiffs for the errors of former counsel by completely foreclosing their avenues for relief. See
Adrianne N. v. Comm’r of Soc. Sec., No. 23-12791, 2024 WL 3223915, at *1 (E.D. Mich. May 8,
2024) (“The Court will not punish Plaintiff for counsel’s mistake.”) (Ivy, Mag. J.).
The Court accordingly GRANTS DE 151. 7 If the WT&P Plaintiffs seek to reinstate some
or all of their dismissed claims, the WT&P Plaintiffs SHALL answer the interrogatories and
produce the documents identified in the Court’s Scheduling Order by no later than October 31,
2024, to the extent they have not already done so. On that date, the WT&P Plaintiffs SHALL
FILE in the record a proper motion for reinstatement, identifying each specific plaintiff that has
fully answered the interrogatories and produced the requisite documents in compliance with the

To the extent Defendants request that the Court dismiss the claims of the WT&P Plaintiffs with prejudice,
the Court incorporates its previous analysis declining to dismiss the claims of the Martin Plaintiffs.
Although the length of delay created by the WT&P Plaintiffs is greater and therefore poses greater risk of
prejudice to Defendants, the Court reiterates that the infancy of discovery assuages the prejudice. Likewise,
since the WT&P Plaintiffs retained new counsel, these plaintiffs have regularly attempted to address the
pending discovery requests pursuant to the Scheduling Order. That is, the record does not evince a “clear”
pattern “of delay or contumacious conduct.” Freeland, 103 F.3d at 1277. Without such a pattern and
mindful that the delays here are primarily due to the negligence and unhelpful influence of former counsel,
the Court refrains from dismissing the claims of the WT&P Plaintiffs with prejudice.

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Court’s Scheduling Order. The WT&P Plaintiffs may only seek reinstatement of those complying
plaintiffs and must do so in a single motion.
Again, as with the Martin Plaintiffs, to the extent Defendants challenge the sufficiency of
the WT&P Plaintiffs’ discovery responses, the parties must make every effort to resolve disputes
between themselves in good faith per Local Rule 37.1 before requesting intervention from this
Court. Only if the parties are unable to reach a resolution, and have followed proper pre-motion
mechanics, may they seek relief through a properly filed Rule 37 motion.
In its “substantial discretion” to effectively manage its docket, the Court will dismiss with
prejudice the claims of any plaintiff that has not complied (i.e., that is not listed by WT&P as
compliant) by October 31, 2024. Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th
Cir. 2008) (citation and quotation marks omitted). The Court is conscious of the logistical
intricacies in representing hundreds of plaintiffs, particularly given the enduring issues with the
former counsel. However, as the masters of their own case, Plaintiffs cannot remain inactive. At
a certain point, the perpetual delay escalates the prejudice to the opposing parties to an intolerable
level.
IV.

Motion to Clarify
Defendants subsequently filed a motion to clarify whether and when to proceed with statute

of limitations discovery. See DE 145 (3M Motion to Clarify); DE 146 (Mine Safety Motion for
Joinder). The Court GRANTS DE 145 and DE 146 to the extent Defendants seek clarification as
to the case schedule for statute of limitations discovery. However, to the extent Defendants seek
to dismiss the plaintiffs’ claims with prejudice, the Court DENIES DE 145 and DE 146 for the
reasons already given. The parties appear to have conducted at least some discovery regarding the
statute of limitations in the interim. See DE 184 (Motion for Summary Judgment). The parties

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(meaning, all active and remaining litigants in the case) SHALL file a joint status report detailing
the current status of statute of limitations discovery, and a joint proposed plan for phased discovery
and steps in litigation, by no later than October 22, 2024. At that point, the Court will conduct
a scheduling hearing and map out the schedule in the case. Discovery on limitations may certainly
proceed.
V.

Motion to Revive
Plaintiff Patricia Blair moves to revive the action brought by Plaintiff Roger Blair, now in

her name as his personal representative and executrix of his estate. See DE 61 (Motion to Revive);
DE 157 (Motion for Ruling). Such motion is timely per KRS § 395.278. See DE 60 (Notice of
Suggestion of Death); DE 61-1 (Death Certificate). The Court accordingly GRANTS DE 61 and
DE 157.
VI.

Conclusion
Therefore, in sum, the Court hereby ORDERS:
1.

The Court GRANTS in part and DENIES in part DE 62, DE 66, DE 69, DE 75,
DE 78, DE 81, DE 85, DE 88, and DE 91. The Court DENIES DE 72 and 73 as
withdrawn;

2.

The Court GRANTS in part and DENIES in part DE 63, DE 67, DE 70, DE 73,
DE 76, DE 79, DE 82, DE 86, DE 89, and DE 92. Plaintiffs, in coordination with
their respective counsel, may file a joint first amended complaint, limited to the
basis authorized, by no later than October 31, 2024;

3.

The Court GRANTS DE 151. Plaintiffs SHALL fully comply with Court’s
Scheduling Order by no later than October 31, 2024, to the extent that they have
not already done so. On that date, the WT&P Plaintiffs also SHALL FILE in the

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record a proper motion for reinstatement, identifying each specific plaintiff that is
in full compliance with the Court’s Scheduling Order;
4.

The Court GRANTS in part and DENIES in part DE 145 and DE 146. The
parties SHALL file a joint status report as specified by no later than October 22,
2024; and

5.

The Court GRANTS DE 61 and DE 157.

Plaintiff Patricia Blair is

SUBSTITUTED in the place of Roger Blair, as the executrix of his estate. The
Court DIRECTS the Clerk to amend the case caption in accordance with this order.
This the 26th day of September, 2024.

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