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In re E.I. Du Pont DE Nemours And Company C-8 Personal Injury Litigation

United States District Court, S.D. Ohio, Eastern Division

July 30, 2019

E. I. du Pont de Nemours and Co., et al, No. 217-cv-00998 This document relates to Travis Abbott, et al




         This matter is before the Court for consideration of Plaintiffs' Motion for Leave to Remove the Limit on Requests for Admission as Applied by Local Rule 36.1 (ECF No. 32), DuPont's Opposition to Plaintiffs' Motion (ECF No. 39), and Plaintiffs' Reply in Support of Their Motion (ECF No. 41). For the reasons that follow, Plaintiffs' Motion is GRANTED.


         On April 9, 2013, the Judicial Panel on Multidistrict Litigation ("JPML") centralized before this Court the cases that make up this multidistrict litigation ("MDL"), all of which are a subset of cases that originated in Leach v. E.I. Du Pont de Nemours & Co., No. Ol-C-608 ( W.Va. Cir. Ct. Wood County Aug. 31, 2001) ("Leach Case"). The Leach Case was brought by a group of approximately 80, 000 individuals ("Leach Class") who alleged a variety of claims related to DuPont's contamination of their drinking water with the chemical C-8, which is a synthetic perfluorinated carboxylic acid and fluorosurfactant also known as perfluorooctanoic.

         The Leach Case settled with the parties executing a contractual agreement, the Leach Settlement Agreement, wherein the parties fashioned a procedure to determine whether the Leach Class would be permitted to file actions against DuPont based on any of the human diseases they believed had been caused by their exposure to C-8 discharged from DuPont's Washington Works plant. The procedure established a Science Panel to study human disease among the Leach Class. In 2012, the Science Panel delivered Probable Link Findings for six human diseases ("Linked Diseases"), which means that for that Leach Class member it is more likely than not that there is a link between his or her exposure to C-8 and his or her Linked Disease.

         Since the global settlement of approximately 3, 500-plus cases, over fifty additional cases have been filed by members of the Leach Class who all have alleged either kidney or testicular cancer, two Linked Diseases, including Plaintiff Travis Abbott who was diagnosed with testicular cancer and who filed an action on November 14, 2017. (ECF No. 1.) After discovery commenced in this action, a dispute arose regarding the number of permissible requests for admission. Plaintiffs seek leave to serve in excess of forty requests for admission on DuPont, which has refused to respond to any request for admission beyond number 40.[1] (ECF No. 32.) DuPont opposes Plaintiffs Motion (ECF No. 39) and Plaintiff has filed a reply (ECF No. 41.)


         A party may serve on another party a written request to admit "the truth of any matters within the scope of Rule 26(b)(1) relating to ... facts, the application of law to fact, or opinions about either; and... the genuineness of any described documents." Fed.R.Civ.P. 36(a). Southern District of Ohio Civil Rule 36.1 provides that "[u]nless there has been agreement of the responding party or leave of Court has first been obtained, no party shall serve more than forty requests for admission (including all subparts) upon any other party."

         "District courts have broad discretion over docket control and the discovery process." Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). '"It is well established that the scope of discovery is within the sound discretion of the trial court."' Id. (quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)); see also Fed. R. Civ. P. 26(b)(2). On a party's motion or on its own, "the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines" that, inter alia, "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive[.]" Fed.R.Civ.P. 26(b)(2)(C)(i). "To determine whether a party should be permitted to serve additional discovery requests, 'the Court looks to whether the benefits of the expansion outweighs the burden of the extra discovery."' Pettus-Brown v. Phelps, 2:18-cv-082, 2018 WL 5960821, at *5 (S.D. Ohio Nov. 14, 2018) (quoting Martin v. Posey, No. 2:15-cv-2294, 2017 WL 412876, at *4 (S.D. Ohio Jan. 31, 2017)), report and recommendation adopted by 2019 WL 132346 (S.D. Ohio Jan. 8, 2019). "A party requesting leave to serve additional discovery requests must make a "particularized showing" to establish a need for those additional requests." Id. (citing St. Ann v. McLean, No. 5:15-cv-l 1770, 2017 WL 5732991, at *2 (E.D. Mich. Nov. 28, 2017)). This showing generally requires the party seeking to serve additional discovery to submit the proposed discovery requests to the district court for review. Id.


         Here, Plaintiffs seek leave to serve an initial 159 requests for admission ("RFAs"). (ECF No. 32 at 2; see also Exhibit A, No. 32-1, attached thereto (copy of proposed RFAs).) Plaintiffs argue that the number of proposed RFAs is necessary and that the RFAs are narrowly tailored to this lawsuit and unique to the Leach Class membership. (ECF No. 32 at 3-5.) DuPont disagrees, complaining first that Plaintiffs served these RFAs before seeking leave of the Court in contravention of the Local Rules. (ECF Nos. 39, 41.) DuPont further complains that Plaintiffs have failed to make the necessary particularized showing to exceed the forty-request limit. (Id. at 2-5.) DuPont also contends that many of the proposed RFAs were used in other cases, duplicative, were previously objected to or denied by DuPont, or are otherwise improper. (Id. at 1, 5-8.)

         DuPont's arguments are not well taken. As a preliminary matter, Plaintiffs represent that they mistakenly believed that the limit on RFAs was lifted and therefore did not serve the extra RFAs in intentional disregard of the Court's Local Rules.

         Turning to the merits, the Court first notes that Plaintiffs' proposed additional RFAs are ...

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