Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pritchard v. Dow Agro Sciences

January 5, 2009

ROBERT T. PRITCHARD, SR. AND ELIZABETH ANN PRITCHARD, PLAINTIFFS,
v.
DOW AGRO SCIENCES, A DIVISION OF DOW CHEMICAL COMPANY, AND SOUTHERN MILL CREEK PRODUCTS OF OHIO DEFENDANTS.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Hon. Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

Before the Court are two motions: (1) Plaintiffs Robert T. Pritchard, Sr. and Elizabeth Ann Pritchard's ("Plaintiffs") Motion to Withdraw Admissions and to Extend Time for Filing (Docket No. 46); and (2) Plaintiffs' Motion for Extension of Time to File Plaintiffs' Causation Expert Reports (Docket No. 50). For the foregoing reasons, the Court GRANTS both Motions.

II. Background

The instant matter is essentially a toxic tort case in which Plaintiffs assert that chemicals manufactured and sold by Defendants Dow Agro Sciences ("Dow") and Southern Mill Creek Products of Ohio's ("Southern Mill"; collectively, "Defendants") caused Robert T. Pritchard ("Mr. Pritchard") to develop cancer in the form of Non-Hodgkin's Lymphoma.*fn1 (Docket No. 23 at ¶ 20). Mr. Pritchard is and has been self employed as an exterminator/pest control operator, and as such, allegedly used the chemicals manufactured by Defendants. (Docket No. 23 at ¶¶ 7-10). He alleges that despite taking all the precautionary measures recommended on the chemicals' labels, he began experiencing medical problems. (Docket No. 23 at ¶ 11). On August 28, 2005, Mr. Pritchard was diagnosed with Non-Hodgkin's Lymphoma. (Docket No. 23 at ¶ 13). Thus, given these allegations, this case encompasses scientific, medical, product liability, causation, expert, and other evidentiary issues on liability, alone.

Initially, Plaintiffs obtained a writ of summons on August 27, 2007, and filed their pro se complaint on October 29, 2007 in the Court of Common Pleas of Fayette County, Pennsylvania. (Docket No. 1). Therein, the following claims were alleged: negligence, strict liability, and loss of consortium and services (Counts I, II, V) against both Defendants; as well as breach of implied warranty of merchantability and misrepresentation (Counts III, IV) against Dow. (Docket No. 1). At each count, Plaintiffs requested medical costs, punitive damages, damages for pain and suffering, as well as reasonable attorney fees and court costs. (Docket No. 1). Thereafter, this case was removed by Defendants on November 28, 2007 based on this Court's diversity jurisdiction.*fn2 (Docket No. 1). On November 29, 2007, Dow filed a Motion to Dismiss and Motion to Strike Plaintiffs' Complaint seeking dismissal of Plaintiffs' misrepresentation claim (Count IV), arguing failure to properly plead the elements of intentional and negligent misrepresentation. (Docket Nos. 2 and 3). Additionally, said Defendant argued that Plaintiffs' request for attorneys fees at each count of their complaint should be stricken. Id. Likewise, Southern Mill filed a Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f) asserting that the Court should strike Plaintiffs' request for attorney fees in Counts I, II and V of Plaintiffs' Complaint. (Docket Nos. 8 and 9). That same day, Southern Mill also filed its Answer and Affirmative Defenses to the remaining claims. (Docket No. 10).

On January 3, 2008, Plaintiffs filed a Motion for Extension of Time to Amend their Complaint.*fn3 (Docket No. 13). In response, on January 7, 2008, Defendants filed a Response in Opposition arguing that Plaintiffs' Motion should be denied as untimely. (Docket No. 14). The Court summarily granted Plaintiffs' Motion for Extension and Plaintiffs filed their Amended Complaint on February 6, 2008. (Docket No. 16).

Thereafter, Southern Mill filed its Answer and Affirmative Defenses to the Amended Complaint on February 8, 2008. (Docket No. 17). On that same day, Dow filed its second motion to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) again arguing for dismissal of the misrepresentation claim (Count IV), for failure to properly plead. (Docket Nos. 18 and 19). Later, on February 27, 2008, Dow filed its Affirmative Defenses and Answer to the remaining claims in Plaintiffs' Amended Complaint. (Docket No. 20). Plaintiffs then filed their Brief in Opposition to Dow's Motion to Dismiss on March 4, 2008, asserting the sufficiency of their misrepresentation claim as pled. (Docket No. 21). After consideration, the Court granted Dow's Motion to Dismiss, thereby dismissing Plaintiffs' misrepresentation claim (Count IV) because Plaintiffs failed to specify a claim for negligent or intentional misrepresentation. (Docket No. 22). In addition, the Court granted Plaintiffs leave to file a Second Amended Complaint by March 25, 2008. (Docket No. 22).

On March 26, 2008, Plaintiffs filed their Second Amended Complaint asserting the following claims: negligence, strict liability, and loss of consortium and services (Counts I, II, V) against both Defendants; as well as breach of implied warranty of merchantability and misrepresentation (Counts III, IV) against Dow. (Docket No. 23).

Subsequently, on April 4, 2008, Dow filed a Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed. R. Civ. P. 41(b), or in the Alternative, to Dismiss Count IV with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the Second Amended Complaint should be dismissed in its entirety as untimely, and that the "case should [ ] proceed based on the First Amended Complaint, except for Count IV (misrepresentation), which this Court previously dismissed and now should order to be dismissed with prejudice." (Docket No. 25 at 2). Likewise, Southern Mill filed its Motion to Dismiss arguing dismissal on the basis of untimeliness. (Docket Nos. 26 and 27). In response, on April 25, 2008, Plaintiffs filed their Brief in Opposition to both Defendants' Motions contending that their Second Amended Complaint was filed late due to problems with this Court's online filing system. (Docket No. 28 at ¶¶ 22, 23).

On May 1, 2008, the Court conducted a status conference to inquire as to the status of service on named defendant, Residex Corporation, wherein Plaintiffs' counsel agreed to fax the Court Residex's counsel's letter denying that service had been made. (Docket No. 29). In addition, the Court questioned whether oral argument was desired by counsel as to the pending motions, to which all counsel answered in the negative. Id. After having reviewed Plaintiffs' faxed submission concerning service, on May 14, 2008, the Court ordered Plaintiffs to make proper service of process on Residex*fn4 of the Plaintiffs' Second Amended Complaint. (Docket No. 31).

Subsequently, on May 20, 2008, the Court granted in part and denied in part Dow's pending Motion as well as denied Southern Mill's Motion. (Docket Nos. 32 and 33). Specifically, the Court granted Dow's Motion to Dismiss Count IV (misrepresentation) as Plaintiffs did not comply with the Court's March 5, 2008 Order; i.e., Plaintiffs failed to correctly plead a claim for misrepresentation because they failed to specify whether they were pleading intentional, negligent or innocent misrepresentation. Id. Accordingly, the Court ordered that Count IV of Plaintiffs' Second Amended Complaint be stricken. Id. However, the Court denied Dow's Motion to Dismiss to the extent that it sought dismissal of Plaintiffs' Second Amended Complaint in its entirety pursuant to Rule 41(b). Id. Likewise, the Court denied Southern Mill's Motion. Id. Accordingly, on May 28, 2008, Defendants filed their Answers and Affirmative Defenses to Plaintiffs' Second Amended Complaint. (Docket Nos. 34 and 35). On that same day, the Court scheduled an initial Case Management Conference for August 29, 2008*fn5 (Docket No. 39) and subsequently a Case Management Order was entered on September 5, 2008. Pursuant to said Order, the following deadlines were established: (1) factual discovery was to conclude on March 1, 2009; (2) Plaintiffs were to file their expert medical causation report(s) by September 30, 2008; (3) Plaintiffs' expert(s) were to be deposed by December 15, 2008; (4) Defendants' medical causation reports were to be filed by January 15, 2009; (5) Defendants' expert(s) were to be deposed by February 18, 2009; and (6) any Daubert motions related to medical causation were to be filed by March 15, 2009. (Docket No. 43).*fn6 The Order also established deadlines for expert discovery, which was to conclude on August 1, 2009, as well as set deadlines for summary judgment motions and the filing of pretrial statements. Id.

III. Discussion

The Court will now address the two pending motions, in turn.

A. Plaintiffs' Motion to Withdraw Admissions and to Extend Time for Filing

1. Background

On June 18, 2008, Defendants served Plaintiffs with their first set of twenty-two Requests for Admissions ("RFAs"). (Docket No. 52 at 2; Docket No. 52-2). Plaintiffs had thirty days in which to respond or object in writing, i.e., by July 21, 2008. However, on July 21, 2008, Plaintiffs' counsel, Doug Sholtis, Esquire, left a voicemail message for Defendant Dow's local counsel Kimberly Brown, Esquire requesting a thirty day enlargement of time in order to complete his clients' responses to the RFAs. (Docket No. 52 at 2). Defendants, through an email from Ms. Brown on July 21, 2008, agreed, and thus, the parties set a revised response date of August 20, 2008. (Docket No. 47 at 3; Docket No. 52 at 2; Docket No. 52-3). Plaintiffs' counsel, Mr. Sholtis, confirmed the extension of time and new due date in an email dated July 23, 2008 stating "I will provide the documents, interrogatories, etc. by August 20, 2008." Id.

However, on August 20, 2008, at 4:11 p.m., Defendants' counsel, Kimberly A. Brown received another voicemail from Mr. Sholtis, in which he stated the following:

Hi Kim, Doug Sholtis. Hey, I just looked at the uh stipulation selecting ADR process. Looks good to me. Mediation. Scanlon. Paras. Uh, Mr. Pritchard. Etc. Etc. Etc. Uh, the only thing I don't see on there is Nick's name, Attorney Timperio, unless you sent one to him too. Uh, additionally, uh, Pritchard came in this morning to review our answers to the interrogatories, we just had to make a couple changes, I will either mail out tonight or tomorrow morning. [unintelligible] to let you know that that's done too. So, uh, thanks Kim, if there is anything I am forgetting, call me back. Thanks a lot. Ba-bye. (Docket No. 52-4). There does not appear to be any written confirmation of this voicemail message. In addition, the record does not reflect whether Ms. Brown returned this voicemail message or not. Subsequently, Defendants' counsel received Plaintiffs' responses to the RFAs on August 25, 2008, accompanied by a letter apologizing for the delay. (Docket No. 52 at 3; Docket No. 52-2).

As scheduled, the Court conducted a Case Management Conference on August 28, 2008. At said conference, Defendants' counsel alerted the Court and Plaintiffs' counsel to their untimely response to the RFAs. (Docket No. 52 at 3). Further, Plaintiffs' counsel was informed by defense counsel that the result of their untimely response was that the RFAs were deemed admitted, unless Plaintiffs filed a motion to withdraw. (Docket No. 41; Docket No. 52 at 3).

Specifically, Plaintiffs were served with and did not timely respond to the following RFAs:

1. Pritchard did not purchase any Dursban products*fn7 on or after August 1, 2003.

2. Plaintiffs have no Documents*fn8 showing Pritchard purchased any Dursban products on or after August 1, 2003.

3. During Pritchard's employment as a pest control operator, Pritchard was exposed to pesticides other than Dursban.

4. Neither Plaintiffs nor any expert retained by Plaintiffs is in possession of any Documents or evidence, including but not limited to medical or scientific literature, which associate(s) Pritchard's alleged injuries with his alleged Exposure*fn9 to the Dursban products at issue.

5. Plaintiffs possess no evidence excluding causes other than Pritchard's alleged Exposure to the Dursban products at issue as a cause of his alleged injuries.

6. Pritchard's alleged Exposure to the Dursban products at issue did not cause and/or contribute to his injuries as alleged in the Second Amended Complaint.

7. Plaintiffs possess no evidence that Pritchard's alleged Exposure to the Dursban products at issue caused and/or contributed to Pritchard's injuries alleged in the Second Amended Complaint.

8. No Health Care Provider*fn10 has told Pritchard that Pritchard's alleged injuries were caused by his alleged Exposure to the Dursban products at issue.*fn11

9. No act or omission on the part of [Dow] caused and/or contributed to Pritchard's alleged injuries.

10. You possess no evidence that any act or omission on the part of [Dow] caused or contributed to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.