United States District Court, S.D. Ohio, Eastern Division
IN RE E.I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION
E. I. du Pont de Nemours and Co., et al, No. 217-cv-00998 This document relates to Travis Abbott, et al
SARGUS, JR. JUDGE.
DISCOVERY ORDER NO. 15 PLAINTIFFS MOTION FOR
LEAVE TO REMOVE LIMIT ON REQUESTS FOR ADMISSIONS
ELIZABETH A PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
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.
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.
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
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. (ECF No. 32.) DuPont opposes
Plaintiffs Motion (ECF No. 39) and Plaintiff has filed a
reply (ECF No. 41.)
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."
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.
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.)
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
to the merits, the Court first notes that Plaintiffs'
proposed additional RFAs are ...