Plaintiff Allowed to Substitute and Limitedly Amend Complaint, Several Cases Consolidated Against 3M Among Court Rulings on Daubert Hearings and Expert Preclusion U.S. District Court for the Western District of Wisconsin, November 9, 2015

In these federal court cases there were several motions brought forward, including a motion by the plaintiff to substitute the estate and file a third amended complaint following the death of the decedent, defendant 3M’s motion to preclude the plaintiff’s expert Dr. Arnold Brody, and defendant Weyerhaeuser’s Daubert motion regarding the plaintiff’s experts Frank M. Mark, III, and Drs. Henry A. Anderson and Jerrold L. Abraham.

Regarding the plaintiff’s motion for substitution and to amend the complaint, the court held: “The court will grant the motion to substitute Katrina Masephol as the Special Administrator of the Estate of Richard Masephol as the named plaintiff for her now-deceased father’s claims. The court will also grant plaintiff leave to assert a wrongful death claim. As defendant Weyerhaeuser points out in opposition, however, plaintiff’s proposed third amended complaint contains other changes for which leave to amend was not sought. Specifically, plaintiff would add allegations dealing with state and federal regulations without formal leave to do so. Plaintiff would also add allegations concerning Richard Masephol’s exposures and activities. The court, therefore, will deny amendment to add both sets of allegations, without prejudice to that evidence, where permissible, being presented at trial or otherwise to demonstrate plaintiff’s existing claims. Finally, the court denies plaintiff leave to add a nuisance claim on behalf of Katrina Masephol individually. It is simply too late to interject these additional allegations and claims — all known at the time of the filing of the original complaint.”

3M moved to preclude Dr. Brody since the plaintiff refused to produce him for a deposition pursuant to 26(b)(4)(A) of the Federal Rules of Civil Procedure. The court stated that it would not “strike Dr. Brody’s testimony as a sanction, the court will require plaintiff to produce Dr. Brody for a deposition on or before December 31, 2015. Failure to do so will result in plaintiffs being prevented from offering his testimony at the trial against 3M.”

Regarding Weyerhaeuser’s Daubert motion, the court said it would hear the motion on December 7, 2015.  The court went on to state “Because Weyerhaeuser’s motion for summary judgment primarily turns on the admissibility of plaintiffs’ proffered expert testimony that the community and household exposure can be separated from the significant occupations exposure, and that the community and household exposure was a substantial contributing factor to each plaintiff’s injuries, the court will stay a decision on Weyerhaeuser’s motions for summary judgment pending that hearing as well. As such, the court will also strike the trial dates in Masephol, Boyer, and Seehafer and all pre-trial deadlines in those cases pending a determination on the Daubert motion and related motions for summary judgment.”

The court went on to state that it would issue a ruling on 3M’s motion for summary judgment in the near future.  However, the court consolidated four of the cases as against 3M since some of the plaintiffs’ claims for negligence, and perhaps even strict liability, were likely to survive and all those claims hinge on the showing that the 3M respirator was defective.

Read the full decision here.

 

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