Sullivan et al v. Saint-Gobain Performance Plastics Corporation

RESPONSE to 106 MOTION to Amend 1 Complaint

D. Vt.October 4, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT JAMES D. SULLIVAN and LESLIE ADDISON, WILLIAM S. SUMNER, JR., RONALD S. HAUSTHOR, GORDON GARRISON, and TED and LINDA CRAWFORD, individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORP., Defendant. Civil Action No. 5:16-cv-00125-gwc SAINT-GOBAIN PERFORMANCE PLASTICS CORP’S RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT Plaintiffs filed their motion for leave to file a Third Amended Complaint (Dkt. 106) together with their motion for class certification (Dkt. 107). According to Plaintiffs, amending the complaint by adding another class representative is necessary to try to shore up their burden of proving adequacy and typicality, which Plaintiffs acknowledge may vary depending on where each Plaintiff lives in the Bennington area.1 Saint-Gobain does not oppose Plaintiffs’ request for leave to amend the complaint, provided that the addition of another class representative does not further delay the production of Plaintiffs’ medical discovery as ordered by the Court. Specifically, Saint-Gobain is concerned with adding another class representative at this late stage of the class action proceedings when Plaintiffs have not begun to comply with the Court’s Order granting Saint-Gobain’s motion to compel medical discovery. Saint-Gobain has sought this discovery since February to support its defenses to class certification, and the Court ordered that 1 (See Oct. 2, 2017 Email from D. Ruley to P. LaFata, et al. (Ex. A)) Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 1 of 6 2 it be produced. The same day the Court issued its Order, Saint-Gobain wrote to Plaintiffs to facilitate cooperative compliance with the Order within the 14-day period requested in Saint- Gobain’s motion, which the Court granted.2 Plaintiffs did not respond. Nor did they produce any documents or information in compliance with the Court’s Order. On September 28, 2017 – fifteen days after the Court issued its Order and after the period for compliance lapsed – Saint-Gobain called Plaintiffs’ counsel to again seek cooperative compliance with the Order and left a voicemail requesting an opportunity to confer. When that call was not returned, Saint-Gobain sent another letter requesting immediate compliance with the Court’s Order. Saint-Gobain explained that although it “remained available to discuss cooperation,” the “protracted delays” caused by Plaintiffs’ non-compliance “are incompatible with the Discovery Schedule and the Court’s Order.”3 On September 29, 2017, Plaintiffs’ counsel stated that they would “be in touch with more detail after Monday,” October 2 and that they were purportedly “complying with the Court’s order on discovery,” but Plaintiffs did not produce any of the medical information, records, or authorizations that were ordered.4 On October 2, 2017, Plaintiffs’ counsel delayed their timeline again and stated that they would provide the discovery “later this week.”5 Plaintiffs still have not produced a single document pursuant to the Court’s Order. On October 3, 2017, Saint-Gobain agreed as a further accommodation to accept Plaintiffs’ requested production timeline and stated that it was willing to afford Plaintiffs until October 6, 2017 to produce all of the overdue discovery and information.6 Saint-Gobain also made clear that the addition of a new class representative cannot delay matters 2 (Sept. 13, 2017 Ltr. from P. LaFata to E. Joselson (Ex. B)) 3 (Sept. 28, 2017 Ltr. from P. LaFata to E. Joselson (Ex. C)) 4 (Sept. 29, 2017 Email from E. Joselson to P. LaFata (Ex. D)) 5 (Oct. 2, 2017 Email from E. Joselson to P. LaFata (Ex. E)) 6 (Oct. 3, 2017 Ltr. from P. LaFata to E. Joselson (Ex. F)) Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 2 of 6 3 further and that the same discovery for Plaintiff Knight should be produced on October 6, 2017 along with the discovery for the other Plaintiffs.7 Accordingly, Saint-Gobain does not oppose Plaintiffs’ request for leave to amend the complaint, provided that it does not cause any further delay in producing discovery as ordered by this Court. Moreover, although Saint-Gobain does not oppose the request for leave to amend, Saint- Gobain does not agree with characterizations in Plaintiffs’ motion. Plaintiffs say there was “insufficient time within which to obtain [Saint-Gobain’s] consent or opposition” before filing due to the timing of a remediation agreement between Saint-Gobain and Vermont. (Mot. ¶¶ 3-4.) Yet Plaintiffs knew about that agreement long in advance of their filing and knew they needed another class representative. On July 25, 2017, Vermont publicly announced their remediation agreement with Saint- Gobain and held several public meetings to discuss it.8 On August 24, 2017, Plaintiffs’ counsel furnished criticisms of the agreement to the State. By September 27, 2017 Plaintiffs’ counsel had located Plaintiff Knight, secured retention as counsel, and obtained a signed declaration in support of class certification. (Dkt. 107-57.) Yet Plaintiffs inexplicably waited until October 2, 2017 after 3pm before first notifying Saint-Gobain that they planned to amend the complaint.9 Plaintiffs asked Saint-Gobain to either consent to the amendment or waive certain defenses to class certification.10 Due to the nature and timing of Plaintiffs’ request, counsel for Saint-Gobain promptly requested a copy of Plaintiffs’ proposal,11 which Plaintiffs sent later that afternoon. 7 (Id.) 8 State of Vermont, Agency of Natural Resources, State Announces Settlement Agreement with Saint-Gobain, http://anr.vermont.gov/news/2017-saint-gobain-settlement-agreement (last visited Oct. 4, 2017) 9 (Oct. 2, 2017 Email from D. Ruley to P. LaFata (Ex. A)) 10 (Id.) 11 (Oct. 2, 2017 Email from P. LaFata to D. Ruley (Ex. G)) Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 3 of 6 4 Counsel for Saint-Gobain noted that they would need to seek Saint-Gobain’s consent before proceeding and expected to provide an answer the following day,12 but Plaintiffs filed anyway. Plaintiffs’ decision to wait more than two months to seek Saint-Gobain’s consent to add a new class representative––and then allow Saint-Gobain approximately four hours to provide that consent––is the reason “there was insufficient time.” Saint-Gobain also does not agree with Plaintiffs’ assertion that adding Plaintiff Knight “further augments the typicality of the Plaintiffs’ claims and the adequacy of the representative parties under Rule 23(a)(3) and 23(a)(4).” (Mot. ¶ 2). Saint-Gobain intends to brief these class certification issues at the appropriate time in accordance with the Court’s Scheduling Order. 12 (Oct. 2, 2017 Email from P. LaFata to E. Joselson (Ex. H).) Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 4 of 6 5 Dated: October 4, 2017 Respectfully submitted, /s/ R. Bradford Fawley R. Bradford Fawley DOWNS RACHLIN MARTIN PLLC 28 Vernon Street, Suite 501 Brattleboro, VT 05301-3668 Telephone: (802) 258-3070 Facsimile: (802) 258-4875 bfawley@drm.com Sheila L. Birnbaum (pro hac vice) Mark S. Cheffo (pro hac vice) Douglas E. Fleming (pro hac vice) Patrick D. Curran (pro hac vice) QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Avenue New York, NY 10010 Telephone: (212) 849-7000 Facsimile: (212) 849-7100 sheilabirnbaum@quinnemanuel.com markcheffo@quinnemanuel.com douglasfleming@quinnemanuel.com patrickcurran@quinnemanuel.com Attorneys for Saint-Gobain Performance Plastics Corp. Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2017, this document was filed through the Electronic Case Filing System of the United States District Court for the District of Vermont and will be served electronically by the court to the Registered Participants identified in the Notice of Electronic Filing (NEF). /s/ R. Bradford Fawley R. Bradford Fawley, Esq. Case 5:16-cv-00125-gwc Document 111 Filed 10/04/17 Page 6 of 6