The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER OVERRULING RULE 72(a) OBJECTION
Plaintiffs have filed a Rule 72(a) objection to Magistrate Judge Crawford's Order re: Plaintiff's Bellwether Selections ("Bellwether Order") filed on June 29, 2012. For the reasons discussed below, Plaintiffs' objection is overruled.
On February 24, 2012, the parties submitted a Proposed Joint Bellwether Plan [Doc. No. 1080]. The Notice of Submission of the Proposed Joint Bellwether Plan stated that the parties intended to file letter briefs in support of their positions by February 28, 2012.
The Proposed Joint Bellwether Plan provided that each side shall pick four bellwether cases, with at least one case from each of Category 1, involving consumption of a Hydroxycut "Hardcore" Product, and Category 2, involving consumption of a Hydroxycut "White Box" Product. With respect to a product consumption limitation, the proposed plan provided:
a. Defense Position is: If a Plaintiff took more than one type of Hydroxycut product they are not eligible for participation in the bellwether program.
b. Plaintiff Position is: Plaintiffs do not agree with this provision. Plaintiffs will select their cases without limitation.
On February 29, 2012, Defendants filed a letter brief addressing, among other things, the necessity of the "product consumption limitation." Defendants explained that by limiting the bellwether cases to cases where a Plaintiff only consumed one product type, bellwether proceedings would be simplified by avoiding discovery related to the inter-relationship of reactions to different products and eliminating potential causation and scientific issues that would need to be explored. Plaintiffs did not file a letter brief.
On March 19, 2012, Magistrate Judge Books approved the Joint Bellwether Plan. [Doc. No. 1110]. The approved plan included the "product consumption limitation" at Sections IV(A)(4) and IV(A)(9). The plan provided that each side would select four bellwether cases and one back-up, with at least one case being selected from each of Category 1 and Category 2.
On April 27, 2012, Plaintiffs and Defendants filed their respective bellwether selections. On May 9, 2012, Defendants filed an Objection to Plaintiffs' Bellwether Selections. Defendants objected to Plaintiffs' selection of Mario Moraga ("Moraga") on the ground that he had used Hydroxycut Hardcore Liquid Caplets (a Category 1 product) in June 2005 and Hydroxycut Regular Rapid Release Caplets (a Category 2 product) from October 2007 until December 2007. On May 25, 2012, the parties filed a Joint Motion for Ruling on Plaintiffs' Bellwether Selections. In the Joint Motion, Plaintiffs set forth their position that Moraga's case was actually a single product case. Plaintiffs explained that Moraga had never had liver problems prior to his use of the Hydroxycut Rapid Release Product. According to Plaintiffs, the remoteness in time of Moraga's use of the Hydroxycut Hardcore Liquid Caplets in addition to blood test results that showed normal liver function in 2007, establish that the only product use that is relevant is Moraga's use of the Hydroxycut Rapid Release Caplets.
Judge Crawford filed her Bellwether Order on June 29, 2012. Judge Crawford ruled that Moraga should be precluded from participating in the bellwether program. Judge Crawford reasoned that the record did not conclusively establish the irrelevance of Moraga's use of the Hydroxycut Hardcore Product in 2005. Judge Crawford explained that because it was not possible to eliminate the potential that Moraga's use of the Hydroxycut Hardcore Product played a causal role in his subsequent personal injuries, Moraga's case could entail a complicated causation analysis, which would defeat the purpose of the bellwether plan.
On July 19, 2012, Plaintiffs filed a motion for reconsideration of the Bellwether Order.
Plaintiffs later clarified that they intended their motion to be an objection under Fed. R. Civ. P. 72(a) to be ...