Gray et al v. FedEx Ground Package System, Inc.

Filing 360

MEMORANDUM AND ORDER re: 347 MOTION for Relief (Defendant FedEx Ground Package System Inc.'s Motion for Bellwether Trial) filed by Defendant FedEx Ground Package System, Inc. motion is DENIED.. Signed by District Judge John A. Ross on 12/3/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID WELLS, et al.,
Plaintiffs,
vs.
FEDEX GROUND PACKAGE
SYSTEM, INC.,
Defendant.
______________________________________
REGINALD GRAY, et al,
Plaintiffs,
vs.
FEDEX GROUND PACKAGE
SYSTEM, INC.,
Defendant.
______________________________________

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Case No. 4:10-CV-2080-JAR

Case No. 4:06-CV-00422-JAR

MEMORANDUM AND ORDER
This matter is set for trial on April 7, 2014. The parties have been unable to agree on a trial
plan and have instead submitted their respective proposals for the Court’s consideration.
In their Consolidated Proposed Trial Plan, Plaintiffs suggest, given the substantial common
evidence, that the Court proceed with all 24 Gray plaintiffs in one consolidated trial followed by a
second consolidated trial of all 13 Wells plaintiffs. (Gray Doc. No. 342; Wells Doc. No. 223) Under
this plan, Plaintiffs estimate that the Gray case could be tried in approximately eight trial days and
the Wells case in five trial days.
FedEx opposes Plaintiffs’ trial plan, arguing that the sheer volume of individualized
documentary evidence and witness testimony will be inherently confusing to a jury and unfairly

prejudicial to FedEx. FedEx further argues that Plaintiffs’ trial plan will impose an enormous burden
on the Court’s docket given its estimate that a single Gray trial would require at least six
weeks.(Gray Doc. No. 345; Wells Doc. No. 225)
In reply, Plaintiffs take issue with FedEx’s assertions, noting that much of the evidence and
testimony will be identical for each Plaintiff and that proper jury instructions can cure jury confusion
and prevent prejudice to defendants. (Reply in Supp., Gray Doc. No. 352; Wells Doc. No. 233, pp.
6-8)
FedEx moves the Court for a bellwether trial consisting of six plaintiffs, three selected by
Plaintiffs and three selected by FedEx. (Gray Doc. No. 347; Wells Doc. No. 228) According to
FedEx, this approach would afford the parties an opportunity to evaluate the strengths and
weaknesses of their arguments as to the remaining plaintiffs. (Id., p. 5) In addition, the smaller
volume of evidence required would make the trial more manageable and efficient for the Court, and
reduce the likelihood of juror confusion and unfair prejudice to FedEx. (Id., pp. 3-4) Alternatively,
FedEx moves for a trial of the seven Gray plaintiffs who provided services from the St. Louis
Ground terminal. (Id., pp. 5-7)
Plaintiffs oppose FedEx’s motion on the grounds that neither option will provide a
representative, statistically significant sample of Plaintiffs for purposes of due process, citing In re
Chevron U.S.A., Inc., 109 F.3d 1016, 1020 (5th Cir. 1997) (“[B]efore a trial court may utilize results
from a bellwether trial for a purpose that extends beyond the individual cases tried, it must, prior to
any extrapolation, find that the cases tried are representative of the larger group of cases or claims
from which they are selected. Typically, such a finding must be based on competent, scientific,
statistical evidence that identifies the variables involved and that provides a sample of sufficient size
so as to permit a finding that there is a sufficient level of confidence that the results obtained reflect

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results that would be obtained from trials of the whole.”) (Resp. in Opp., Gray Doc. No. 352; Wells
Doc. No. 233, pp, 10-11)
In reply, FedEx refers back to the extensive record evidence it submitted to show that each
of the consolidated trials proposed by Plaintiffs would be marathons for jurors and the Court. (Reply,
Gray Doc. No. 356; Wells Doc. No. 237) FedEx maintains its proposal is the best option before the
Court because it shortens the trial by several weeks and limits the individual evidence that a single
jury must evaluate. (Id., pp. 12-13)
After careful consideration, the Court finds neither side’s approach to trying these cases
preferable. Unless the parties can otherwise agree, the Court will take the Gray case first, given its
age and procedural history,1 by proceeding to trial on the first twelve named plaintiffs. If necessary,
the Court will then try the next twelve Gray plaintiffs. At the conclusion of the Gray case, the Court
will try all thirteen Wells plaintiffs.
Based on the foregoing,
IT IS HEREBY ORDERED that Defendant FedEx Ground Package System Inc.’s Motion
for Bellwether Trial [347] is DENIED.
Dated this 3rd day of December, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

1

The case was filed on March 6, 2006, and subsequently transferred to the Multi-District
Litigation (“MDL”) in which similar cases against FedEx were consolidated in the Northern
District of Indiana for discovery and class certification purposes. In re FedEx Ground Package
Sys., Inc., No. 3:05-MD-527-RM (N.D. Ind.). Following denial of class certification, In re FedEx
Ground Package System., Inc., Employment Practices Litigation, 273 F.R.D. 424, 475 (N.D. Ind.
2008), the case was remanded back to this Court on December 28, 2010. .
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