IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
No. 5:18-CV-0073-D

JAMES S. DEW, et al.,

Plaintiffs,
Case No. 5:18-cv-0073-D
v.

E.I. DU PONT DE NEMOURS AND

COMPANY, et al.,

Defendants.

JAMES O’BRIEN, et al.

Plaintiffs,
Case No. 5:20-CV-00208-D
v.

E.I. DU PONT DE NEMOURS AND

COMPANY, et al.

Defendants.

JOINT SUBMISSION REGARDING TRIAL SELECTIONS

Plaintiffs James S. Dew and James O’Brien, et al. and Defendants The Chemours Company

FC, LLC, The Chemours Company, and EIDP, Inc. (collectively, the “Parties”) file this Joint

Submission Regarding Trial Selections pursuant to the Court’s Fourth Amended Scheduling Order,

Dkt. 123, and state as follows:

1. The Parties have met and conferred in good faith regarding the order of trials for final

cases as well as the number of trials for the final cases, but have been unable to reach agreement on

the number of trials.

2. This consolidated case currently includes over 2,300 individual plaintiffs. See, e.g.,

Dkts. 76, 85, 86, 94, 97, 98, 100, 104, 105, 109, 115, 117, 124, 143, and 148.

Case 5:18-cv-00073-D Document 1501 Filed 12/11/23 Page 1 of 8

 3. Pursuant to the Court’s Third Amended Scheduling Order, Dkt. 112, the Parties each

selected five cases for inclusion in the trial pool, totaling ten “original cases.” In February 2023, the

parties each selected three of the original cases to proceed to expert discovery, totaling six “final

cases.”

4. Expert discovery for those six final cases closes on the date of this filing, December

11, 2023.

5. Pursuant to the Court’s Fourth Amended Scheduling Order, Dkt. 123, the Parties will

file dispositive motions by February 12, 2024, followed by responses and replies subject to Local

Rules 7.1, 7.2, and 56.1. Upon conclusion of dispositive motion briefing, the parties are prepared to

proceed toward trials of the six final cases.

6. Plaintiffs’ and Defendants’ separate proposals for the number and length of trials are

set forth in the following paragraphs.

Plaintiffs’ Proposal

1. Plaintiffs propose two, two-week trials with each trial addressing three of the six Plaintiffs.

2. Plaintiffs propose the following trial order and groupings:

a. Trial 1: Richard & Patsy Davis; Allison Pini; and Paul & Socorra Abril

b. Trial 2: John and Anne Stevens; Sandra Riggins Branch; and Cynthia Faircloth

3. Consolidation maximizes efficiency and can be done in a fair, balanced manner. The

six cases overlap considerably. The six cases involve the same causes of action, the same lawyers, the

same experts, and largely the same evidence. Plaintiffs in all six cases allege PFAS contamination

caused by air emissions from Defendants’ Fayetteville Works facility and will use the same evidence

and experts to demonstrate much of their case, including: the types of PFAS manufactured and released

from Defendants’ Fayetteville Works facility; Defendants’ knowledge of PFAS emissions from the

facility; Defendants’ efforts – or lack thereof – to reduce or eliminate PFAS air emissions; violations

of corporate responsibility standards; toxicity of the PFAS found in Plaintiffs’ wells and soil; and
Case 5:18-cv-00073-D Document 1502 Filed 12/11/23 Page 2 of 8
Defendants’ historical PFAS toxicological testing practices, among other things. Moreover,

consolidated trials would not prejudice Defendants. The likelihood of case confusion is low. Much of

Plaintiffs’ case relates to evidence of Defendants’ culpability, which is the same for all Plaintiffs. If

necessary, evidence of individualized harm (including damages) could be presented separately for

each Plaintiff --- even on separate days --- which would make clear that each Plaintiff has their own,

separate injury.

4. Plaintiffs would be prejudiced by individual trials. The six trial plaintiffs have

designated thirteen experts, many of whom are located out of state. The costs to try Plaintiffs’ cases

will be considerable. If individual trials are required, a Plaintiff could succeed at trial but see most of

their recovery go to costs. Through a consolidated trial, per-plaintiff costs would be significantly

reduced. Plus, over 2300 plaintiffs await trial after conclusion of the first six cases. Proceeding in

trial, one by one, is not rational (and likely not feasible).

5. The Court may consolidate trials under Rule 42 of the Federal Rules of Civil Procedure

to prevent needless repetition, delay, or unnecessary costs. See, e.g., Roanoke River Basin Ass'n v.

Duke Energy Progress, LLC, No. 1:16-CV-607, 2018 WL 11449626, at *1 (M.D.N.C. May 8, 2018);

Brinson v. Brosnan, No. 5:21-CV-00151-M, 2021 WL 2188671, at *1 (E.D.N.C. May 28, 2021); see

also Livingston v. Kehagias, No. 5:16-CV-906-BO, 2017 WL 2297004, at *2 (E.D.N.C. May 24, 2017)

(“While there may be a risk of possible confusion in a multi-plaintiff trial such as this, this risk may

be mitigated against with proper instructions to the jury, . . . , and it does not outweigh the burden and

expense of conducting five separate trials in this case.”).

6. Plaintiffs dispute Defendants’ position that Due Process requires subsequent trials to

wait on resolution of an appeal of the first case. This issue is not ripe, so it need not be determined

now. However, Plaintiffs contend that the second trial should begin soon after the conclusion of the

first, and any potential appeal can occur simultaneously with a subsequent trial. Over 2300 plaintiffs

await trial, and a delay for appeal creates a delay for all.
Case 5:18-cv-00073-D Document 1503 Filed 12/11/23 Page 3 of 8
 7. Should the Court consolidate trials, Plaintiffs acknowledge that meeting and conferring

with Defendants to determine plaintiff groupings and trial order may be appropriate.

Defendants’ Proposal

8. Defendants propose individual trials for each of the six final cases, with each trial

lasting one week.

9. In support of this position, Defendants point to the unique circumstances of each of the

plaintiffs in the six final cases that could confuse a jury were the facts consolidated with other

plaintiffs. For example, Sandra Riggins Branch owns two properties that would be the subject of the

trial: one property that is connected to public utility water and one next-door property that sources

water from a well. Issues of public utility water and ownership of multiple properties are unique to

Ms. Riggins Branch and would inject confusion if combined with a plaintiff who owns one property

that utilizes only well water. Other issues, such as proof of property ownership, rental of the property,

length of ownership, time of purchase in relation to knowledge of PFAS, property value, actual PFAS

testing results, variance in water usage for different purposes, installation of different types of filtration

systems, and others will all vary among the plaintiffs in each of the six final cases. The consolidation

of so many differences among the plaintiffs risks jury confusion and prejudice to Defendants at trial.

10. Moreover, the well-established rule when considering requests for consolidation is that

a court should not “sacrifice basic fairness” in the “interests of expediency.” Malcolm v. National

Gypsum Co., 995 F. 2d 346, 354 (2d Cir. 1993). Consolidating these unique cases for trial would

violate Defendants’ Due Process rights under the Fourteenth Amendment. U.S. Const. amend. 4.

Indeed, “even where cases involve some common issues of law or fact, consolidation may be

inappropriate where individual issues predominate.” Michael v. Wyeth, LLC, Nos. 2:04–0435, 2:04–

0690, 2:04–0692, 2011 WL 1527581, at *2 (S.D.W.Va. Apr. 20, 2011) (denying plaintiffs’ motion to

consolidate trials). In Michael, several individual issues differed among the plaintiffs despite the fact

that the plaintiffs asserted identical claims against the same defendants. Id. Given those discrepancies,
Case 5:18-cv-00073-D Document 1504 Filed 12/11/23 Page 4 of 8
the court concluded “that consolidating these cases for trial would create a significant risk of jury

confusion and prejudice to defendants. The predominance of individual issues also creates a low risk

of inconsistent adjudications of common factual and legal issues should these cases proceed

separately.” Id. at *3. The court recognize the fact that “[t]here will be overlap in expert and lay

witness testimony among the cases, increased expenses, and a greater drain on judicial resources.” Id.

Nevertheless, the court concluded that “the factors weighing in favor of consolidation for trial are

overborne by risks of prejudice and possible confusion.” Id. (internal quotation omitted). As

explained above, material differences between individual plaintiffs are likely to cause significant juror

confusion and prejudice to Defendants if consolidated. Defendants should not be prejudiced because

of the number of experts Plaintiffs disclosed or intend to call at trial. To avoid violation of Defendants’

due process rights and significant juror confusion, Defendants respectfully request shorter, individual

trials.

11. Defendants propose the following order of trials:

a. John and Anne Stevens

b. Allison Pini

c. Richard & Patsy Davis

d. Sandra Riggins Branch

e. Paul and Socorra Abril

f. Cynthia Faircloth

12. Defendants also preserve their right to appeal following the first trial in this matter.

Due Process dictates that the second trial would need to wait until resolution of any appeal by either

party arising out of the first trial.

13. If the Court is inclined to consolidate the trials pursuant to Plaintiffs’ proposals, then

Defendants request the opportunity to: (1) submit a brief fully explaining Defendants’ Due Process

Case 5:18-cv-00073-D Document 1505 Filed 12/11/23 Page 5 of 8

rights and the individual issues that would predominate the trials; and (2) meet and confer with

Plaintiffs’ counsel regarding which of the final cases to include in any consolidated trials.

Joint Request

14. Given the numerous logistical and practical issues involved in determining the number

and length of trials as well as the order of the plaintiffs within the trials, the Parties jointly request a

preliminary pretrial conference to discuss these issues with the Court prior to the entry of any trial

order. Local Rule 16.1 provides that “[i]n the court’s discretion and upon request of any party or on

the court’s own initiative, a preliminary or ‘working’ pretrial conference may be scheduled.” To most

efficiently address the differing proposals above, the Parties request a preliminary pretrial conference

pursuant to Local Rule 16.1 before the Court schedules any trials in this matter.

Dated: December 11, 2023 Respectfully submitted,

/s/ Brett Land /s/ Britta N. Todd

J. Harold Seagle Thomas H. Segars
North Carolina Bar No. 8017 N.C. Bar No. 29433
SEAGLE LAW, PLLC ELLIS & WINTERS LLP
P.O. Box 15307 P.O. Box 33550
Asheville, N.C. 28813 Raleigh, NC 27636
Telephone: 828-774-5711 Phone: 919-865-7000
[email protected] Facsimile: 919-865-7010
Local Civil Rule 83.1(d) [email protected]
Counsel for Plaintiff
Kenneth J. Reilly
Scott Summy SHOOK, HARDY & BACON, L.L.P.
N. C. Bar No. 27171 201 S. Biscayne Blvd.
Cary McDougal 3200 Miami Center
Stephen Johnston Miami, FL 33131
Brett Land Phone: 305-960-6907
BARON & BUDD, P.C. Facsimile: 305-385-7470
3102 Oak Lawn Avenue, Suite 1100 [email protected]
Dallas, Texas 75219-4281
Telephone: (214) 521-3605 Joshua Becker
Fax: (214) 520-1181 SHOOK, HARDY AND BACON, LLP
[email protected] 1230 Peachtree Street, Suite 1200
[email protected] Atlanta, Georgia 30309
[email protected] Phone: 470-867-6000
[email protected] Fax: 470-867-6001
Case 5:18-cv-00073-D Document 1506 Filed 12/11/23 Page 6 of 8
 [email protected]

Attorneys for Plaintiffs Britta N. Todd

SHOOK, HARDY AND BACON, LLP
2555 Grand Blvd.
Kansas City, Missouri 64108
Phone: 816-559-2487
Fax: 816-421-5547
[email protected]

Attorneys for Defendants

Case 5:18-cv-00073-D Document 1507 Filed 12/11/23 Page 7 of 8

 CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2023, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to all counsel of

record who have made an appearance in the above captioned cases.

/s/ Britta N. Todd______

Britta N. Todd

Case 5:18-cv-00073-D Document 1508 Filed 12/11/23 Page 8 of 8