Berry v. Borgwarner , 291 F. App'x 592 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2008
No. 08-60153 Charles R. Fulbruge III
Summary Calendar Clerk
BETTY BERRY; JAMES MINTER; GEORGE DEATON; LUKE FUNCHESS;
HERMAN MAY
Plaintiffs-Appellants
v.
BORG WARNER; KUHLMAN CORPORATION; PFIZER INC; PHARMACIA
CORPORATION, formerly known as Monsanto Chemical Company
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CV-134
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Betty Berry, James Minter, George Deaton, Luke
Funchess, and Herman May (collectively, the “Plaintiffs-Appellants”) are among
the approximately 160 original plaintiffs in this consolidated mass tort lawsuit
who allege that they were exposed to and harmed by polychlorinated biphenyls
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-60153
(“PCBs”) and other chemicals from Defendant-Appellee Kuhlman Corporation’s
plant in Crystal Springs, Mississippi. The Plaintiffs-Appellants are the only
original plaintiffs who remain in this action; all others either settled and
dismissed their claims or had their claims dismissed for other reasons. The
Plaintiffs-Appellants ask us to reverse the district court’s dismissal of their
complaint with prejudice. They insist only that the court erred by not first
considering or implementing less stringent sanctions for their failure to comply
with the court’s case management order. Convinced that the district court’s
grant of the Defendants-Appellees’ alternative motions for summary judgment
or to dismiss for failure to prosecute was proper on either basis, we affirm.
I. FACTS AND PROCEEDINGS
In June 2005, the district court entered a case management order
requiring each plaintiff to produce, by September 15, 2005, information
concerning, inter alia, his personal background, alleged exposure to PCBs,
medical conditions, work history, and blood testing data, together with an
affidavit from a qualified expert that the subject plaintiff’s medical conditions
were likely caused by exposure to PCBs from Kuhlman’s plant. Possibly because
the parties were engaged in settlement discussions, this deadline, and even
extended deadlines, for these disclosures came and went without any of the
required information being provided. Indeed, an offer of settlement was made
to each of the 160 plaintiffs, and 154 accepted. The Plaintiffs-Appellants are five
of the six original plaintiffs who declined the offer.
Following these settlements, the attorneys for the Plaintiffs-Appellants
moved to withdraw as counsel, citing conflicts of interest. The district court
permitted withdrawal and granted the Plaintiffs-Appellants thirty days within
which to retain new council or to notify the court that they were representing
themselves. After the district court extended the time for the Plaintiffs-
Appellants to employ new counsel, and just before this new deadline passed, the
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Plaintiffs-Appellants informed the court of their intention to represent
themselves.
A couple months later, in October 2006, Defendants-Appellees
BorgWarner, Inc. and Kuhlman Corporation moved for summary judgment or,
in the alternative, to dismiss for failure to prosecute, citing, inter alia, the
Plaintiffs-Appellants’ failure to come forward with testimony from a qualified
expert indicating that they had illnesses caused by exposure to PCBs from
Kuhlman’s plant. The Plaintiffs-Appellants objected, insisting that they had
essentially been abandoned by their attorneys and that they were not even
aware of the requirements of the case management order. Given these
circumstances, the district court denied the alternative motions at that time and
ordered the Plaintiffs-Appellants to produce the documentation required by the
case management order by January 8, 2007, warning that their failure to do so
would result in the dismissal of their claims. Shortly before this deadline, the
Plaintiffs-Appellants moved for another extension. The district court granted
this motion and ordered the Plaintiffs-Appellants to respond by February 20,
2007, stating that no further extensions would be granted.
Around this same time, the Plaintiffs-Appellants had petitioned the court
for assistance in obtaining records from their former counsel. The district court
made available to the Plaintiffs-Appellants, beginning January 8, 2007, thirty-
four boxes that were believed to contain documents responsive to the case
management order. On March 9, 2007, Nathanial Armistad, one of the attorneys
who had withdrawn from the case and whose firm had provided the Plaintiffs-
Appellants with access to the boxes, filed an affidavit in which he explained,
inter alia, that (1) the Plaintiffs-Appellants did not show up to view the boxes
until February 1st, at which time they spent less than four hours reviewing the
documents; (2) they never again requested access to the documents; and (3) no
written expert reports were issued in the case with the exception of preliminary
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PCB level data, which had already been made available to the Plaintiffs-
Appellants.
Following receipt of Armistad’s affidavit, and despite the court’s prior
admonishment that no further extensions would be forthcoming, the court
granted the Plaintiffs-Appellants yet another “final extension,” ordering them
to file their disclosures by March 21, 2007, which they did. After reviewing the
disclosures, the district court dismissed their complaint with prejudice, holding
that the Plaintiffs-Appellants (1) had failed to comply with the case management
order, and (2) did not have sufficient evidence to support their claims. The
Plaintiffs-Appellants filed a motion to reconsider, yet again insisting that they
could not be faulted for their failure to make the necessary disclosures because
they were unrepresented and unaware of what was required by the case
management order. At that same time, attorney Michael S. Allred filed a motion
requesting that he be allowed to appear on behalf of the Plaintiffs-Appellants in
the event that the court granted their motion for reconsideration. Attached to
Allred’s motion were the affidavit and expert report of Dr. David O. Carpenter,
a qualified toxicologist. The district court concluded that the record belied the
Plaintiffs-Appellants’ assertions and thus denied their motion for
reconsideration, which mooted Allred’s conditional request.
II. ANALYSIS
On appeal, the Plaintiffs-Appellants contend that the district court erred
by not considering or implementing less severe alternative sanctions before
resorting to dismissal. The record, however, plainly reveals that the court
provided the Plaintiffs-Appellants with numerous opportunities to comply with
its case management order before dismissing their complaint. The Plaintiffs-
Appellants were granted no less than three separate extensions over a seven-
month period to provide the required disclosures. Moreover, each time it
granted an extension, the court cautioned the Plaintiffs-Appellants of the
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consequence for failing to meet the applicable deadline. When the district court
granted the first extension, it warned the Plaintiffs-Appellants that their claims
would be dismissed with prejudice if they did not meet the extended deadline;
when it granted the second extension, the court informed them that no further
extensions would be provided; and when the court granted a third and final
extension after reviewing Armistad’s affidavit, it notified them that “[u]pon
failure of any plaintiff to provide any of the information required by the case
management order, that plaintiff’s claim will be dismissed.”
It is pellucid to us that the district court considered and in fact
implemented less drastic alternative sanctions than dismissal when it afforded
the Plaintiffs-Appellants repeated opportunities to comply with its order, each
time advising them of the consequence if they failed to meet the respective
deadline.1 Because (1) there is a clear record of delay and contumacious conduct
by the Plaintiffs-Appellants, and (2) the district court attempted lesser sanctions
(and even helped provide the Plaintiffs-Appellants with access to the required
information),2 we hold that the court did not abuse its discretion when at long
last it dismissed the Plaintiffs-Appellants’ complaint for failure to comply with
the court’s case management order.3
Furthermore, summary judgment in favor of the Defendants-Appellees
was proper because, at the time the district court dismissed the complaint, the
1
See, e.g., Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir.
1985) (“Providing plaintiff with a second or third chance following a procedural default is a
‘lenient sanction,’ which, when met with further default, may justify imposition of the ultimate
sanction of dismissal with prejudice.”).
2
Dorsey v. Scott Wetzel Serv., 84 F.3d 170, 171 (5th Cir. 1996) (holding that dismissal
for failure to prosecute “will be affirmed only upon a showing of a clear record of delay or
contumacious conduct by the plaintiff, . . . and where lesser sanctions would not serve the best
interest of justice”).
3
See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998) (“We review a dismissal for
want of prosecution or failure to obey a court order for abuse of discretion.”).
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Plaintiffs-Appellants had not produced any evidence of causation, an essential
element of their claims. Notably, the Plaintiffs-Appellants failed to provide the
affidavit of a qualified expert stating that their alleged medical conditions were
likely caused by exposure to PCBs or other chemicals from Kuhlman’s plant.
Although the Plaintiffs-Appellants attempted to introduce expert testimony in
the form of Dr. Carpenter’s report after the district court had dismissed their
complaint, introduction of this evidence was contingent on the Plaintiffs-
Appellants’ motion for reconsideration, which the court denied. Accordingly, we
agree with the district court that, based on the evidence that was properly
admitted, there was no “expert testimony, report or affidavit stating that any
plaintiff suffers from any medical condition that was likely caused by exposure
to PCBs,” without which the Plaintiffs-Appellants could not prove their claims.
The district court’s dismissal of the Plaintiffs-Appellants’ complaint with
prejudice is
AFFIRMED.
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