Brannon v. 3M Company

Filing 6

ORDER: (1) Defendants 3M Company and Arizant Healthcare Inc.'s Motion to Dismiss for Failure to Comply with Pretrial Order No. 14 (Motion) [Dkt. No. 637 ] was GRANTED IN PART, DENIED IN PART and STAYED IN PART as stated below. (2) The Motion was DENIED as moot as to 16-cv-2787 (Hood, et al. v. 3M Co., et al.). (3) The Motion was DENIED without prejudice to renew as to 16-cv-2212 (Pettersen v. 3M Co., et al.) and 16-cv-2750 (Brannon v. 3M Co., et al.). (4) The following cases were DISM ISSED WITH PREJUDICE: Nos. 16-cv-826 (Starnes v. 3M Co., et al.), 16-cv-1338 (Hartzel v. 3M Co., et al.), 16-cv-1834 (Newcomb v. 3M Co., et al.), 16-cv-1847 (Rivers v. 3M Co., et al.), 16-cv-2156 (Busby v. 3M Co., et al.), 16-cv-2374 (Upton v. 3M Co. , et al.), 16-cv-2395 (Nadeau v. 3M Co., et al.), 16-cv-2661 (Davis v. 3M Co., et al.), 16-cv-2711 (Miller, et al. v. 3M Co., et al.), 16-cv-2959 (Novak v. 3M Co., et al.), 16-cv-4353 (Butkus v. 3M Co., et al.), 16-cv-4412 (Gill v. 3M Co., et al.), 1 6-cv-4418 (Burks v. 3M Co., et al.), 17-cv-188 (Stouffer v. 3M Co., et al.), 17-cv-299 (Raymond v. 3M Co., et al.), 17-cv-350 (Sanders v. 3M Co., et al.) and 17-cv-597 (Perez v. 3M Co., et al.). (5) This Order was STAYED until August 31, 2017 as to 16-cv-1847 (Rivers v. 3M Co., et al.) and 16-cv-2374 (Upton v. 3M Co., et al.). (Written Opinion). Signed by Judge Joan N. Ericksen on August 25, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re: BAIR HUGGER FORCED AIR
WARMING DEVICES PRODUCTS
LIABILITY LITIGATION

MDL No. 15-2666 (JNE/FLN)

ORDER
This Document Relates To:
Case Nos.: 16-cv-826 (Starnes v. 3M Co., et al.)
16-cv-1338 (Hartzel v. 3M Co., et al.)
16-cv-1834 (Newcomb v. 3M Co., et al.)
16-cv-1847 (Rivers v. 3M Co., et al.)
16-cv-2156 (Busby v. 3M Co., et al.)
16-cv-2212 (Pettersen v. 3M Co., et al.)
16-cv-2374 (Upton v. 3M Co., et al.)
16-cv-2395 (Nadeau v. 3M Co., et al.)
16-cv-2661 (Davis v. 3M Co., et al.)
16-cv-2711 (Miller, et al. v. 3M Co., et al.)
16-cv-2750 (Brannon v. 3M Co., et al.)
16-cv-2787 (Hood, et al. v. 3M Co., et al.)
16-cv-2959 (Novak v. 3M Co., et al.)
16-cv-4353 (Butkus v. 3M Co., et al.)
16-cv-4412 (Gill v. 3M Co., et al.)
16-cv-4418 (Burks v. 3M Co., et al.)
17-cv-188 (Stouffer v. 3M Co., et al.)
17-cv-299 (Raymond v. 3M Co., et al.)
17-cv-350 (Sanders v. 3M Co., et al.)
17-cv-597 (Perez v. 3M Co., et al.)

Defendants 3M Company and Arizant Healthcare Inc. moved to dismiss twentytwo actions, including those listed above, for Plaintiffs’ failure to comply with a court
order, Pretrial Order No. 14 (“PTO 14”). Mot. to Dismiss (“Motion”), 15-md-2666 Dkt.
No. 637. Defendants withdrew the Motion as to Terry and Dana Hood (16-cv-2787).
Hulse Ltr., 15-md-2666 Dkt. No. 664. Plaintiffs Joanne Buttacavoli (16-cv-2626) and
Althea Magee (16-cv-2481) stipulated to dismiss their claims with prejudice. Stip., 16cv-2626 Dkt. No. 7; Stip., 16-cv-2481 Dkt. No. 7. Plaintiffs Edward Brannon (16-cv-

2750) and John W. Butkus, Jr. (16-cv-4353) opposed late. Brannon’s Opp’n, 15-md2666 Dkt. No. 677 (filed Aug. 16, 2017, due Aug. 10, 2017); Butkus’s Opp’n, 15-md2666 Dkt. No. 668 (filed Aug. 14, 2017, due Aug. 10, 2017). The remaining Plaintiffs
did not oppose. The Court held a hearing on the Motion on August 17, 2017 and decided
the Motion on the record. The Court now memorializes its rulings and provides more
reasoning.
I. Denial of Motion without prejudice to renew as to Plaintiffs Brannon and
Pettersen
At the hearing, counsel for Plaintiffs Edward Brannon (16-cv-2750) and Raymond
Pettersen (16-cv-2212) responded. The night before the hearing, Brannon served a
Plaintiff Fact Sheet (“PFS”) that he believes complies with PTO 14. At the hearing,
Plaintiffs’ counsel asserted that Pettersen cannot comply with PTO 14 because he is in
hospice care. On these facts, the Court DENIED the Motion as to Brannon and Pettersen
without prejudice to renew.
II. Dismissal with prejudice as to remaining seventeen cases
The Court GRANTED the Motion for the remaining seventeen cases. The Court
may dismiss an action with prejudice “[i]f the plaintiff fails to prosecute or to comply
with a court order.” Fed. R. Civ. P. 41(b). Even if a mere failure to respond,
noncompliance with a court order can “constitute[] a pattern of intentional delay meriting
dismissal with prejudice” under Rule 41(b). First Gen. Res. Co. v. Elton Leather Corp.,
958 F.2d 204, 206 (8th Cir. 1992) (affirming dismissal under R. 41(b) when plaintiffs
failed to respond to a discovery request and the follow-up court order, because the trial
court gave them an opportunity to cure and an express warning about dismissal). By

2

PTO 14, the Court here ordered Plaintiffs to respond to a request for information in lieu
of discovery. See PTO ¶¶ 2-4 (requiring PFS service, verification and “core” facts). The
Court provided an opportunity to cure. Id. ¶¶ 6-8 (providing that dismissal can happen
only after a three-week long meet-and-confer process and then “two sequential court
conferences” each one month apart). And the Court warned expressly of dismissal. Id.
¶ 8 (warning that “Defendants may make a motion for dismissal for failure to comply
with this Court’s Pretrial Order as to the allegedly delinquent party”). Besides, when
Defendants moved to dismiss the Plaintiffs here, the Court had already ruled on two
earlier motions to dismiss as to other plaintiffs failing to comply with PTO 14. Order,
15-md-2666 Dkt. No. 622 (July 24, 2017); Order, 15-md-2666 Dkt. No. 577 (June 16,
2017). Thus, if PTO 14’s opportunity to cure has run, a plaintiff’s continued
noncompliance is a pattern of intentional delay for which the Court may dismiss her
action with prejudice under Rule 41(b).
The Court need not consider lesser sanctions if, as here, “plaintiffs are preventing
the defendants from completing discovery.” First Gen., 958 F.2d at 206. Even if the
Court were to consider the proffered lesser sanction of dismissal without prejudice,
Plaintiffs must explain why this lesser sanction would be effective given that prior
warnings had failed. See id. at 206 (affirming dismissal with prejudice because “the
district court already found lesser sanctions ineffective”). These failed prior warnings
include those built into PTO 14 and the prior dismissal orders as to other plaintiffs,
described above. Plaintiffs here did not explain why lesser sanctions would work when

3

prior warnings had failed. See, e.g., Perez’s Resp., 15-md-2666 Dkt. No. 655. Dismissal
with prejudice was thus the appropriate sanction.
PTO 14 provides for service of PFSs in lieu of interrogatories. Cf. Fed. R. Civ.
P. 33. By completing PFSs, Plaintiffs disclose facts material to their claims that would
otherwise be disclosed in traditional discovery. To allow the Court to manage this MDL
and to allow the parties to fairly negotiate settlement or advance to trial, Plaintiffs must
disclose these facts on the schedule that they negotiated and submitted to the Court for
adoption. See Manual for Complex Litigation § 22.83 (4th ed. 2004) (recommending
that, with the parties’ guidance, courts create tools other than interrogatories to “prevent
multiple requests for the same information”).
Defendants argued that Plaintiffs had either not served PFSs, see PTO 14 ¶ 2
(requiring service), or if they had served, served unverified and deficient PFSs, see id. ¶ 3
(requiring verification under oath); id. ¶ 4 (listing “core deficiencies” in responses that
justify dismissal). Defendants cited defects in PFS responses about core facts such as
medical condition (PFS section IV, parts 1, 7, 8 and 10), insurance coverage (PFS section
V, all parts) and alleged economic damages (PFS section VII, parts 1-2). Defendants had
timely notified Plaintiffs of these defects. See PTO 14 ¶ 6. Because Plaintiffs had failed
to resolve these defects despite notice and appearing on the status-conference agenda for
two sequential conferences (June 9, 2017 and July 14, 2017), Defendants had validly
moved to dismiss. See id. ¶ 8.

4

A. Plaintiffs Marilyn Burks (16-cv-4418), Larry Gill (16-cv-4412), Thomas
and Janet Miller (16-cv-2711), Lise Nadeau (16-cv-2395), Jerline Newcomb
(16-cv-1834), Daniel Novak (16-cv-2959) and Phyllis Starnes (16-cv-826) did
not respond to the Motion.
The Court DISMISSED these seven actions with prejudice under Rule 41(b) for
Plaintiffs’ failure to comply with PTO 14 and to prosecute their cases.
B. Plaintiffs Jeffery Busby (16-cv-2165), Lolethia Davis (16-cv-2661), Rex
Hartzel (16-cv-1338), Debora Perez (17-cv-597), Philip Raymond (17-cv-299),
Minnie Rivers (16-cv-1847), Walter Sanders (17-cv-350), William Stouffer
(17-cv-188) and Patrick Upton (16-cv-2374) did not oppose the Motion.
For the nine cases listed above, counsel submitted a log of attempts to solicit
Plaintiffs’ interest in prosecuting their cases. These submissions did not oppose the
Motion because they neither disputed Defendants’s contentions nor excused Plaintiff’s
noncompliance. Compare Order, 15-md-2666 Dkt. No. 622, at 2 (deeming log of
“unsuccessful attempts to enlist the client’s cooperation” non-opposition), with, e.g.,
Perez’s Resp., 15-md-2666 Dkt. No. 655 ¶¶ 4-6 (“Efforts to contact [Plaintiff] to inform
her of the Plaintiff Fact Sheet and other necessary steps of the litigation . . . were
unsuccessful. . . .”). In fact, all these Plaintiffs had not responded to counsel for at least
six months. See, e.g., Perez’s Resp. ¶¶ 4-6.

Still, counsel requested a 120-day extension

or dismissal without prejudice. The Court rejected these requests as unjustified. See,
e.g., id. ¶ 7 (“[T]he undersigned counsel is without any knowledge of circumstances that
may preclude Plaintiff from responding to the counsel’s contact. . . .”). The Court thus
DISMISSED these nine actions with prejudice under Rule 41(b) for Plaintiffs’ failure to
prosecute and failure to comply with PTO 14.

5

C. Plaintiff John W. Butkus, Jr. (16-cv-4353) opposed the Motion late and
cured inadequately, serving an incomplete PFS.
The Court rejected Butkus’s as-styled opposition to the Motion and his service of
an incomplete PFS, both late, as “eleventh-hour attempt[s] to cure” PTO 14 violations.
See Rodgers v. Curators of Univ. of Missouri, 135 F.3d 1216, 1222 (8th Cir. 1998)
(affirming dismissal despite plaintiff’s late attempt to cure). The Court ruled for
Defendants as to Butkus for four reasons in sum. First, Butkus opposed late. Butkus’s
Opp’n, 15-md-2666 Dkt. No. 668 (filed Aug. 14, 2017, due Aug. 10, 2017). Second,
although Butkus’s counsel served a PFS on August 11, 2017, id. at 2-3, it was due more
than three months prior on April 21, 2017, which was already extended from PTO 14’s
due date. See PTO 14 ¶ 2 (requiring PFS service “90 days after [Butkus’s] filing”); id. at
1 (“Mr. Butkus’s claim herein was filed December 27, 2016.”). Third, the served PFS
was unverified or contained core deficiencies. Butkus’s Opp’n at 4 (arguing that personal
difficulties “delayed [Butkus’s] ability to provide all of the details required by PTO 14”).
And fourth, Butkus had stopped responding to counsel “on or about April 6, 2017.” Id. at
2-3; see Order, 15-md-2666 Dkt. No. 622, at 2 (deeming log of “unsuccessful attempts to
enlist the client’s cooperation” non-opposition).
The Court rejected Butkus’s two counterarguments. First, the Court cannot accept
Butkus’s attempt to cure PFS non-service with a deficient PFS as absolving him of the
above delays. If the Court were to, then Butkus could return to the calendar for dismissal
for PTO 14 violations with a clean slate, this time under the deficiency provisions instead
of the non-service provision. Compare PTO 14 ¶¶ 3-4, with PTO 14 ¶ 2. The Court will
not allow Plaintiffs to double-dip into PTO 14’s opportunities to cure. See id. at ¶ 8
6

(requiring Defendants to list delinquent plaintiffs “on the agenda for two sequential court
conferences” each one month apart before moving to dismiss). And second, the Court
declined to excuse Butkus on the grounds his counsel had proffered, which were
unsubstantiated and otherwise belied by Butkus’s refusal to engage with that counsel.
See Mem. Opp’n, 15-md-2666 Dkt. No. 668, at 2-3. The Court thus DISMISSED
Butkus’s action with prejudice under Rule 41(b) for his failing to prosecute and to
comply with PTO 14.
III. Stay of Dismissal as to decedent Plaintiffs Upton and Rivers
Counsel for Plaintiffs Minnie Rivers (16-cv-1847) and Patrick Upton (16-cv-2374)
requested an extension to comply with PTO 14 because these Plaintiffs had died.
Rivers’s Opp’n, 15-md-2666 Dkt. No. 665 ¶ 4; Upton’s Opp’n, 15-md-2666 Dkt. No. 657
¶ 4. Plaintiffs’ successors and counsel had known about Plaintiff’s death and claims
against Defendants since November 2016. Id. To allow Plaintiffs to argue why these
actions should not be dismissed, which includes answering how counsel had Plaintiffs’
authority to serve their PFSs after their death, the Court STAYED this dismissal order for
two weeks from the date of the hearing as to Rivers and Upton.

7

Therefore, based on the files, records, and proceedings herein, IT WAS
ORDERED THAT:
1. Defendants 3M Company and Arizant Healthcare Inc.’s Motion to Dismiss for
Failure to Comply with Pretrial Order No. 14 (“Motion”) [Dkt. No. 637] was
GRANTED IN PART, DENIED IN PART and STAYED IN PART as stated
below.
2. The Motion was DENIED as moot as to 16-cv-2787 (Hood, et al. v. 3M Co., et
al.).
3. The Motion was DENIED without prejudice to renew as to 16-cv-2212
(Pettersen v. 3M Co., et al.) and 16-cv-2750 (Brannon v. 3M Co., et al.).
4. The following cases were DISMISSED WITH PREJUDICE: Nos. 16-cv-826
(Starnes v. 3M Co., et al.), 16-cv-1338 (Hartzel v. 3M Co., et al.), 16-cv-1834
(Newcomb v. 3M Co., et al.), 16-cv-1847 (Rivers v. 3M Co., et al.), 16-cv-2156
(Busby v. 3M Co., et al.), 16-cv-2374 (Upton v. 3M Co., et al.), 16-cv-2395
(Nadeau v. 3M Co., et al.), 16-cv-2661 (Davis v. 3M Co., et al.), 16-cv-2711
(Miller, et al. v. 3M Co., et al.), 16-cv-2959 (Novak v. 3M Co., et al.), 16-cv4353 (Butkus v. 3M Co., et al.), 16-cv-4412 (Gill v. 3M Co., et al.), 16-cv-4418
(Burks v. 3M Co., et al.), 17-cv-188 (Stouffer v. 3M Co., et al.), 17-cv-299
(Raymond v. 3M Co., et al.), 17-cv-350 (Sanders v. 3M Co., et al.) and 17-cv597 (Perez v. 3M Co., et al.).
5. This Order was STAYED until August 31, 2017 as to 16-cv-1847 (Rivers v.
3M Co., et al.) and 16-cv-2374 (Upton v. 3M Co., et al.).

Dated: August 25, 2017

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

8