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In re Asbestos Products Liability Litigation

May 14, 2010


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

This Document Relates To: (Oil Rig Cases) (See Exhibit A - attached case list)


I. Introduction

Presently before the Court are Defendants "Combined Motion and Brief of Union Carbide Corporation to Hold Dr. Jay T. Segarra in Civil Contempt" (09-MC-103, Doc. 49) ("Motion for Contempt"), Plaintiffs response (09-MC-103, Doc. 69), and Defendant's reply, (09-MC-103, Doc. 70). Also before the Court are Plaintiffs' "Motion to Dismiss" (09-MC-103, Doc. 100) and Defendant "Union Carbide Corporation's Combined (1) Response to Plaintiffs' Motion to Dismiss, (2) Motion for Leave to File Bill of Costs and (3) Brief on the Impact of Plaintiffs' Motion to Dismiss on Union Carbide Corporation's [Motion for Contempt]," (09-MC-103, Doc. 102).

On March 15, 2010, the seven remaining Plaintiffs who rely upon the medical opinion of Dr. Jay T. Segarra filed a motion to voluntarily dismiss their cases with prejudice. (09-MC-103, Docs. 99, 100.) On March 19, 2010, Defendant Union Carbide Corporation (alternatively "Union Carbide" or "Defendant") filed a response to Plaintiffs' motion to dismiss and a brief discussing the impact of Plaintiffs' motion upon its Motion for Contempt, which was filed on August 22, 2010. See 09- MC-103, Docs. 101, 102. While Defendant does not oppose dismissal of Plaintiffs' cases, they request that the Court first consider its Motion for Contempt in that has been fully briefed since September 2009 and involves issues closely related to its opposition to Plaintiffs' motion to dismiss. See 09-MC-103, Doc. 102 at 19-20.

Plaintiffs raise no serious objection to this request. See 09-MC-103, Docs. 104, 105. We see it as sensible, and accept it as a basis upon which to proceed.*fn1 For the reasons we set out within, we will DENY Defendant's Motion for Contempt. We will, however, GRANT Defendant's Motion for Leave to File a Bill of Costs in part and DENY that Motion in part. We withhold any specific ruling granting Plaintiffs' Motion to Dismiss pending our assessment of the reasonableness of the costs and fees reflected in Defendant's Bill of Costs, as well as to give Plaintiffs' and Plaintiffs' counsel an opportunity to consider whether they in fact choose to pursue the Motion to Dismiss.

II. Factual and Procedural Background

On December 19, 2005, Dr. Jay T. Segarra was served with a subpoena duces tecum issued by the Clerk of the Court for the Eastern District of Pennsylvania in connection with MDL 875 ("Subpoena"). That Subpoena was the subject of Judge Robreno's February 24, 2009 Order and Memorandum Opinion.*fn2 In re: Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. 151 (E.D. Pa. Feb. 24, 2009). By that Order, Dr. Segarra was directed "to produce all documents and information relating to diagnosing reports or opinions for Plaintiffs with claims currently pending in MDL 875 within 20 days." Id. at 158. On March 6, 2009, Plaintiffs' filed a motion for clarification, or in the alternative, reconsideration of Judge Robreno's Order. (01-MD-875, Doc. 5839.) Defendant followed with a motion for reconsideration of the remedy provided in the Order on March 12, 2009. (01-MD-875, Doc. 5886.) Judge Robreno determined that Plaintiffs' and Defendant's motions were moot, noting that the individuals on whose behalf a Daubert challenge to Dr. Segarra had been advanced were no longer parties to the litigation. (Order Den. Def.'s Mot. for Recons., May 29, 2009, 01-MD-875, Doc. 6275). Defendants were instructed to file motions to compel Dr. Segarra's compliance with the Subpoena in individual cases.

On June 4, 2009, Union Carbide filed a "Renewed Combined Motion and Brief to Compel

Dr. Jay T. Segarra's Production of Documents and Response to Subpoena."*fn3 (09-63215, Doc. 9.) On June 25, 2009, this Magistrate Judge ordered Dr. Segarra to produce certain documents and materials responsive to Paragraphs 1-2, 9, 11-12, 20-21, and 23 of the Subpoena, to the extent that these materials were related to his screening or litigation practice and not protected by the "consulting expert" privilege of Federal Rule of Civil Procedure 26(b)(4)(B). (09-MC-103, Doc. 2) (alternatively "Segarra Production Order" or "Order"). The Segarra Production Order also compelled Dr. Segarra to produce a list of those lawyers that retained Dr. Segarra as a consulting expert, as well as the number of "persons for whom he was consulted by each lawyer." Id. In addition, the documents and materials within Paragraph 8, 13-14, 18-19, and 26-27 of the Subpoena were to be produced in full. Id. All "materials and documents to be produced [were] to be produced on or before July 8, 2009." Id. (emphasis in original.)

On July 8, 2009, the Court amended the Segarra Production Order such as to recognize that all responsive materials in Dr. Segarra's control were to be produced by July 17, 2009. (09-MC-103, Doc. 15.) Plaintiffs' were also required to provide Defendant an affidavit or verification, addressing whether Dr. Segarra possessed documents, materials, and/or information responsive to the paragraphs of the Subpoena that he was ordered to produce. See id. at Doc. 15, 17. The next day, Motley Rice, LLC ("Motley Rice") filed a motion to intervene and to object to the Segarra Production Order. (01-MD-875, Doc. 6404.) On July 17, 2009, Plaintiffs' filed a "Motion for Extension of Time and or, Alternatively, Motion to Amend" the Court's Order (09-MC-103, Doc. 28), and produced to Defendant what they described as "redacted medical-legal reports related to his review of all individuals, or records pertaining thereto, from January 2004 through June 2005, together with a statistical analysis of those records[, all of which was] produced by Dr. Segarra to Union Carbide's lawyers in Fairley v. Pulmosan Equipment Co., which was filed in the Circuit Court of Mississippi." (09-MC-103, Doc. 28.)

On July 28, 2009, Motley Rice filed an emergency motion for a hearing and motion to stay the Segarra Production Order. (09-MC-103, Doc. 35.) Three days later, the Court denied Plaintiff's motion for an extension of time or an amendment of our Order without prejudice and [S]ubject to the more specific cataloguing of those documents called for in this Court's previous Order regarding Dr. Segarra's production of documents which are currently in existence and under his control; the parties' establishment of an agreed-upon protocol for the segregation of potentially privileged information; the consideration of the "Motley Rice Plaintiffs' Motion to Intervene and Objections to the [Segarra production Order]" . . . and any future ruling concerning this Court's Order by Judge Robreno. (09-MC-103, Doc. 38.) Although the Court continued to conduct telephone conferences with the Parties to develop a protocol for document production, we determined that we would "not require the actual production of the documents in dispute to Defendant's while the objections of this Court's Segarra Production Order are being considered by Judge Robreno." (09-MC-103, Doc. 41); see 09-MC-103,Docs. 39, 41, 43.*fn4

On September 8, 2009, the Court issued an Order setting out the protocol for production of documents, which directed that an independent technical consultant ("ITC") was to assist the Court is segregating privileged documents from those to be produced pursuant to the Segarra Production Order. (09-MC-103, Doc. 62.) No action with respect to the document production protocol was taken in anticipation of Judge Robreno's decision on Motley Rice's motion to intervene and object to the Segarra Production Order. (09-MC-103, Doc. 78.)

On February 2, 2010, Judge Robreno denied the Motley Rice's motion, but determined that any individual who could demonstrate "that they are entitled to the protections of [the consulting expert privilege] privilege" will be allowed to intervene, provided they re-file within 20 days of that order. (Id.) The period set out in Judge Robreno's Order passed without any potential intervening parties refiling with the Court, and a telephone conference was set up for March 15, 2010 to discuss Plaintiffs' pending motions to quash deposition notices filed by Defendant on February 16, 2010, (09-MC-103, Docs. 88, 89, 90), Defendant's Motion for Contempt, and the implementation of the Segarra Production Order. (09-MC-103, Doc. 98.) On the date of the scheduled conference, however, Plaintiffs' filed a motion to dismiss those cases involving ...

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