United States District Court, D. Minnesota
In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Spaich, et al.
3M Co., et al. No. 16-cv-4360 Manzanares
3M Co., et al. No.16-cv-4381 Harkleroad
3M Co., et al. No. 16-cv-1986 Bryson
3M Co., et al. No.16-cv-2936
N. ERICKSEN United States District Judge
6, 2017, Defendant 3M Company filed a Motion to Dismiss for
Failure to Comply with Pretrial Order No. 14 [15-md-2666 Dkt.
No. 590], seeking dismissal of six cases for failure to
comply with the Court's September 27, 2016 Pretrial Order
No. 14 regarding the service of Plaintiff Fact Sheets
(“PFSs”) [15-md-2666 Dkt. No. 117]. On July 11,
2017, Defendants filed a letter advising that they were
withdrawing the motion as to Case No. 16-cv-4381,
Manzanares v. 3M Co., et al. In addition, plaintiffs
in two of the cases (Hurst, et al. v. 3M Co., et
al., No. 16-cv-2083, and Kaelin v. 3M Co., et
al., No. 16-cv-3058) listed in the motion have filed
stipulations of dismissal with prejudice. Thus, the Court
must decide the motion to dismiss as to three cases.
Defendants have documented their multiple provisions of
notice to these plaintiffs of the deficiencies pursuant to
Pretrial Order No. 14.
fact sheets are typical in MDLs and are helpful in
streamlining discovery. See, e.g., Manuel for
Complex Litig., Fourth, § 22.83 (2004) (referring
to these “standard, agreed-on forms”). But they
are only helpful to the extent that all parties follow the
set procedures. It is important and fair to enforce the
agreed-on, bright-line procedures of Pretrial Order No. 14.
Randall Spaich (16-cv-4360) does not oppose the motion.
Instead, his counsel filed a response detailing numerous
unsuccessful attempts to enlist the client's cooperation
in advancing his case. See 15-md-2666, Dkt. No. 614.
Spaich filed his complaint on December 27, 2016, and had 90
days to serve a completed PFS, but has failed to do so,
despite notice of his deficiency. The Court will grant the
motion as to Spaich for failure to comply with Pretrial Order
No. 14 and to prosecute his case.
for Plaintiff David Harkleroad, Individually and on Behalf of
the Estate of Sandra K. Harkleroad (16-cv-1986), submitted a
response to Defendants' motion. Defendants move to
dismiss because although Harkleroad served a PFS, he failed
to complete numerous questions that were identified as
“core” in Pretrial Order No. 14, including
failing to answer any questions in Section IV (general
medical information), V (insurance and other claim
information), VI (current claim information), VII (economic
damages), VIII (persons with knowledge), or XI (loss of
consortium plaintiffs). Counsel represents that David
Harkleroad, who brought the claim on behalf of his deceased
wife Sandra Harkleroad, has now also passed away, and that
counsel has been unable to obtain any information about any
surviving members of Sandra Harkleroad's family.
15-md-2666, Dkt. No. 616 ¶¶ 2, 7-8 (July 13, 2017).
Plaintiff's counsel requests that the Court stay the case
“and that any potential heir or interested party of
Mrs. Sandra Harkleroad with standing be given a reasonable
amount of time to contact counsel to provide the necessary
information to submit a Plaintiff Fact Sheet and continue the
case.” Id. at 3. Federal Rule of Civil
Procedure 25 provides that if a party dies and the claim is
not extinguished, the decedent's successor or
representative may file a motion for substitution within 90
days after service of a statement noting the death. If no
such motion is made within 90 days, “the action by or
against the decedent must be dismissed.” Therefore, the
Court declines to dismiss as to Plaintiff Harkleroad until 90
days have passed from the date of counsel's service of
the response noting David Harkleroad's death. Any person
making such a Rule 25 motion must simultaneously serve a
verified PFS that has no core deficiencies as defined in
Pretrial Order No. 14 ¶ 4. The Court will deny the
motion without prejudice as to Harkleroad.
Plaintiff Jerry Bryson (16-cv-2936), Defendants argue that
Bryson's PFS had core deficiencies including failure to
verify his responses as required by Pretrial Order No. 14
¶ 3. Bryson did not oppose Defendants' motion to
dismiss. The Court accordingly grants the motion for failure
to comply with the Court's order and to prosecute his
based on the files, records, and proceedings herein, IT IS
Defendant 3M Company's Motion to Dismiss for Failure to
Comply with Pretrial Order No. 14 (“Motion”)
[Dkt. No. 590] is GRANTED IN PART and DENIED IN PART as
following cases are DISMISSED WITH PREJUDICE: Nos. 16-cv-4360
(Spaich, et al. v. 3M Co., et al.) and 16-cv-2936
(Bryson v. 3M Co., et al.).
Motion is DENIED WITHOUT PREJUDICE as to No. 16-cv-1986
(Harkleroad v. 3M Co., et al.), consistent with the
Motion is DENIED AS MOOT as to No. 16-cv-4381 (Manzanares ...