In re Roundup Products Liability Litigation

OPPOSITION/RESPONSE

N.D. Cal.February 26, 2019

UNITED STATES DISTRICT COURT NORTHERN DISTICT OF CALIFORNIA IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION MDL No. 2741 Master Docket Case No. 3:16-md-2741 Honorable Vince Chhabria THIS DOCUMENT RELATES TO: Phillip Dean, Cause No. 3:18-cv-01356 (N.D. Cal.) Mary DiBeneditto, Cause No. 3:18-cv- 02911 (N.D. Cal.) Carolyn Doty, Cause No.3:17-cv-04353 (N.D. Cal.) Michael R. Fair, Cause No.3:17-cv-05573 (N.D. Cal.) Marvin Ford, Cause No. 3:17-cv-04427 (N.D. Cal.) Beverly Koons, Cause No. 3:17-cv-06903 (N.D. Cal.) Kevin McNew, Cause No. 3:17-cv-06858 (N.D. Cal.) Virginia Platt, Cause No. 3:17-cv-04428 (N.D. Cal.) Steven Rochman, Cause No.3:17-cv-04429 (N.D. Cal.) Billy G. Rouse, Cause No. 3:18-cv-00819 (N.D. Cal.) v. Monsanto Company. Case 3:16-md-02741-VC Document 2819 Filed 02/26/19 Page 1 of 5 2 RESPONSE IN OPPOSITION TO DEFENDANT MONSANTO’S MOTION TO DISMISS WITH PREJUDICE Counsel for the above referenced Plaintiffs files this Response to Defendant Monsanto’s Motion to Dismiss with Prejudice for failure to submit Plaintiff Fact Sheets (“PFS”). As further outlined below, the delay in service of the ten (10) PFSs at issue herein was wholly unintentional and stems from a misunderstanding wherein Plaintiffs’ counsel believed that they received a 30-day extension for service of said PFSs. Further, Plaintiff respectfully asserts that Defendant Monsanto (“Monsanto”) has not suffered, nor have they alleged that they have suffered, any prejudice caused by Plaintiffs’ delay in service of the PFS’. As such, for the reasons more completely discussed below herein, Plaintiffs’ counsel respectfully requests that Monsanto’s motion be denied in its entirety. 1. The delay in service of the PFSs was inadvertent and resulted from a misunderstanding. The original deadline for service of several PFS’s in the instant matter (hereinafter referred to as “Group 3 MDL 2741”) and a multi-plaintiff lawsuit pending in another jurisdiction (hereinafter referred to as “Acosta”) was January 23, 2019. On or shortly before January 23, 2019, Plaintiffs counsel requested from defense counsel, Martin Calhoun, a 30-day extension for service of PFS’s for Plaintiffs originally due on January 23, 2019. See Exhibit “A”. On or about January 23, 2019, Plaintiffs’ counsel contacted Monsanto’s counsel, Barbara Light, via email to confirm the understanding that the previously requested 30-day extension applied to all PFS’s due on January 23, 2019 (i.e. PFS’s due in Acosta and MDL 2741 Group 3) (emphasis added). See Exhibit “A”, pgs. 2-3. Ms. Light responded and advised that 30-day extension for 72 PFS’s in Acosta had been granted and she requested that Plaintiff’s provide the number of [additional] Case 3:16-md-02741-VC Document 2819 Filed 02/26/19 Page 2 of 5 3 Plaintiffs and their associated cases for which Plaintiffs counsel sought an extension. See Exhibit “A”, pg. 2. Thereafter, on January 23, 2019, Plaintiffs’ counsel sent Ms. Light a list of 34 Plaintiffs for which a 30-day extension was sought. See Exhibit “A”, pg. 1. In response, Ms. Light advised that the requested 30-day extension was granted and that the new deadline for service of said PFS’s was February 22, 2019. See, Id. Upon receipt of the instant Motion to Dismiss filed by Monsanto, it became apparent to Plaintiffs’ counsel that that the Plaintiffs captioned hereinabove were inadvertently excluded form the list of Plaintiffs to whom Monsanto granted an extension for PFS service. On February 12, 2019, upon receipt of notice of Monsanto’s Motion to Dismiss, Plaintiffs’ counsel promptly served the PFSs for the above captioned Plaintiffs upon Mr. Calhoun and Ms. Light via email. See Exhibit “B”. Said PFSs were successfully uploaded to MDL Centrality on or about February 19, 2019. See Exhibit “D”. On February 13, 2019, Plaintiffs’ counsel followed up with a letter requesting that Monsanto withdraw the pending Motion to Dismiss, specifically as it seeks dismissal with prejudice. See Exhibit “C”. To date, Plaintiffs’ counsel has not received a response to said correspondence. Plaintiffs’ counsel respectfully asserts that the brief and unintentional delay of service the relevant PFSs occurred solely due to the misunderstanding described hereinabove. Per the aforesaid correspondence between Plaintiffs’ counsel and Monsanto’s counsel, Plaintiffs’ counsel reasonably believed that there existed a mutual understanding and agreement whereby the above-captioned Plaintiffs received a 30-day extension for service of their PFSs. It was Plaintiffs’ counsel’s sincere belief and understanding that Monsanto had granted Plaintiffs’ a 30-day extension to serve PFSs Case 3:16-md-02741-VC Document 2819 Filed 02/26/19 Page 3 of 5 4 due on January 23, 2019 and that this applied to all Acosta and MDL 2741 Group 3 Plaintiffs, including the Plaintiffs that are the subject of Defendant’s currently pending Motion to Dismiss. 2. The delay in service of the PFSs has not caused Monsanto prejudice and prejudicial dismissal is not an appropriate sanction. As noted above, Monsanto has possessed the relevant information as to each plaintiff since the relevant PFSs were served upon Monsanto’s counsel via email on February 12, 2019. These PFSs were also successfully uploaded to MDL Centrality on February 19, 2019. These Plaintiffs’ cases are not set for trial, nor is it anticipated that date for trial will be set in the near future. Plaintiffs’ counsel therefore respectfully asserts that this brief and unintentional delay in service of the PFSs could not have caused Monsanto to suffer any prejudice. Further, Monsanto has not alleged that the brief delay in service of the PFSs has caused them to suffer any prejudice. As such, for the reasons stated above, Plaintiffs counsel respectfully asserts that there is no apparent reason why dismissal of Plaintiffs’ cases, with prejudice, is an appropriate remedy. WHEREFORE, Plaintiffs’ counsel respectfully requests that Monsanto’s motion to dismiss be denied in its entirety. Dated February 25, 2019 Respectfully submitted, /s/ Aimee Wagstaff /s/ David Wool Andrus Wagstaff, PC 7171 West Alaska Drive Lakewood, CO 80226 Phone: (303) 376-6360 Fax: (303) 376-6361 Case 3:16-md-02741-VC Document 2819 Filed 02/26/19 Page 4 of 5 5 aimee.wagstaff@andruswagstaff.com david.wool@andruswagstaff.com Attorneys for Plaintiffs Estate of Mary DiBeneditto & Carolyn Doty /s/ Raeann Warner Jacobs and Crumpla, P.A. 2 East 7th Street P.O. Box 1271 Wilmington, DE 19899 Phone: 302-656-5445 Fax: 302-655-9329 raeann@jcdelaw.com Attorneys for Plaintiffs Virginia Platt, Steven Rochman, & Marvin Ford /s/ Jacob A. Flint Flint Law Firm, LLC 222 Park Street, Ste. 500 Edwardsville, IL 62025 Phone: 618-205-2017 Fax: 618-307-5790 jflint@flintlaw.com Attorneys for Plaintiffs Phillip Dean, Michael R. Fair, Beverly Koons, Kevin McNew, & Estate of Billy G. Rouse Case 3:16-md-02741-VC Document 2819 Filed 02/26/19 Page 5 of 5