JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA
OPINION AND ORDER GRANTING PLAINTIFFS' ORAL MOTION TO EXCUSE E.M. FROM THE BELLWETHER PROCESS, ONLY Signed by District Judge Linda V. Parker. (AFla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
In re FTCA Flint Water Cases,
Case No. 17-cv-11218
This Order Relates to:
E.M. v. EPA
Honorable Linda V. Parker
OPINION AND ORDER GRANTING PLAINTIFFS’ ORAL MOTION TO
EXCUSE E.M. FROM THE BELLWETHER PROCESS, ONLY
This matter is before the Court on Plaintiffs’ oral motion to remove minor
E.M. from the Bellwether process, made at the status conference on November 7,
2023. Pursuant to the process set forth in Case Management Order No. 3 (“CMO
3”) (ECF No. 111), E.M. was selected as a “Category 1” bellwether plaintiff—i.e.,
those claiming personal injuries other than wrongful death and whose dates of birth
are during or after 2012. E.M.’s claims in this matter were filed by her mother;
however, E.M. currently is in foster care and her current guardian(s) refuses to
allow E.M. to participate in the discovery process. Plaintiffs’ counsel nevertheless
believes E.M.’s mother may regain custody in the not-to-distant future and wish to
continue pursuing E.M.’s claims.
Plaintiffs’ counsel therefore is unwilling to voluntarily dismiss E.M.s claims
unless such dismissal is without prejudice. The United States is unwilling to agree
to anything but a dismissal with prejudice, however. Neither CMO 3 nor the
subsequently filed Case Management Order 4 (ECF No. 172) dictate a process for
a bellwether plaintiff who fails to cooperate in discovery beyond the initial fact
sheets. In comparison, CMO 3 permits the United States to file a motion to
dismiss if a selected plaintiff fails to cure a defect with respect to a fact sheet after
the opportunity to do so has expired. (See ECF No. 111 Sec. 111.G.2.)
While the removal of E.M. from the bellwether process will leave only one
bellwether plaintiff in Category 1, the United States was unable to identify any
prejudice to it by E.M.’s removal. Neither side objects to proceeding with only
one Category 1 bellwether plaintiff.
The Court therefore is GRANTING Plaintiffs’ oral motion to remove E.M.
from the bellwether process, only.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 13, 2023
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