Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-05211-VRW

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Francisco Division The minor child, A.P. and the ESTATE OF JOSEPH ALBERT PADILLA, through PATRICIA G. PADILLA, M.D., Legal Guardian of ARIANNA PADILLA, and personal representative of the ESTATE OF JOSEPH ALBERT PADILLA, Plaintiffs, v. COLEMAN COMPANY, INC., a Delaware Corporation, JARDEN CORPORATION, a Delaware Corporation; HOME DEPOT U.S.A., INC., Defendants. Pursuant to FRCP 26(f) and Local Rule 16-9, the parties certify that they met and conferred and jointly submit this Case Management Statement and Proposed Order and request the Court adopt it as the Case Management Order in this case. Efforts to reach agreement on the contents of a joint statement did not bear fruit and the parties agreed to separate "Plaintiffs Contend" and "Defendants Contend" subparts in those sections where a consensus could not be reached. No. C 07-05211 VRW JOINT CASE MANAGEMENT CONFERENCE STATEMENT AND PROPOSED ORDER Date: Time: Courtroom: Judge: May 8, 2008 3:30 pm 6, 17th Floor The Honorable Vaughn R. Walker

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1.

JURISDICTION AND SERVICE: Diversity Jurisdiction exists under 28 U.S.C. § 1332, as the amount in

controversy exceeds $75,000.00 and the parties reside or are incorporated in different states. All defendants have been personally served. 2. FACTS: A. Plaintiffs Contend

This is a California wrongful death and survivorship claim against the defendants for damages resulting from the death of the minor child's father, Joseph Padilla, on December 18, 2005. Decedent used a Coleman Powermate 5045 portable propane heater to heat his apartment. Plaintiffs allege Mr. Padilla's death was caused by carbon monoxide emissions generated by this propane heater. According to the autopsy report, at the time of his death Mr. Padilla had a carboxyhemoglobin content of 24%. Plaintiffs allege negligence and products liability claims for defective design, inadequate time of sale warnings and negligent post sale failure to warn or instruct, or recall. Plaintiffs also allege claims of unfair business practices, loss of consortium, breach of warranty and seeks an injunction prohibiting the defendant from further sale of the subject heater. The case involves the history of the design, development, marketing, warnings and safety studies of Coleman's line of portable propane heaters spanning nearly 20 years. Based on prior experience in other cases, Plaintiffs expect that Coleman will

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concede that on average two people have died every year that Coleman has marketed a propane radiant heater, either the Focus models or the Powermate models. There are presently similar cases pending in other federal district courts involving the same model of heater as well as multiple prior cases involving Coleman's line of portable propane heaters.
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The box in which the heater was sold contains, among other information, a graph that calculates the cubic feet to be heated, and misleads the users into using the heater indoors. B. Defendants Contend Decedent Joseph Padilla misused a Coleman Powermate 5045 portable propane heater to heat his dwelling: an in-law-type unit within a larger house in Sebastopol. The house is owned by the representative plaintiff, Patricia G. Padilla, M.D. The house featured a natural gas heating system, including a separate thermostat for decedent's unit. Decedent apparently did not use the heating system in the apartment. Instead, decedent used two propane heaters: the Powermate 5045 in the living room and a catalytic heater in the bathroom. According to the autopsy report, decedent had a blood-alcohol level of .19 grams % at the time of his death. The Coleman Powermate heater is intended only for outdoor and well ventilated construction use. The subject heater contained a carbon monoxide warning and a separate warning specifying it is not intended to heat a dwelling. A warning affixed to the subject heater states: "This heater consumes air (oxygen) and will produce carbon monoxide which may cause death or personal injury." Warnings affixed to the heater also said: "Warning: For outdoor or well ventilated construction use only. Never use inside house, ...." For reasons unrelated to the subject incident, the Powermate 5045 portable heater has been discontinued and is no longer marketed.

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3.

LEGAL ISSUES: A. Plaintiffs Contend Plaintiffs identify the following legal issues: 1. 2. The scope of any protective orders; Admissibility of evidence and/or rulings in other cases in which Coleman

is/was a defendant; 3. Admissibility of depositions taken in other cases in which Coleman is/was

a defendant and/or when a Coleman propane burning device has been present; 4. Admissibility and discovery of information regarding other Coleman

propane burning appliances and other propane heaters; and,

B.

Defendants Contend Defendants identify the following legal issues in addition to those presented

by the motion to dismiss and to strike that will be heard on May 8, 2008: 1. 2. Whether Jarden Corporation and Home Depot are proper defendants; Whether a protective order shall issue concerning preservation of

evidence pertaining to the incident, including maintenance and inspections of the subject heater; 3. 4. Admissibility of other alleged incidents and lawsuits; and Daubert motions to preclude or limit the scope of testimony offered by

one or more of Plaintiffs' experts. 4. MOTIONS: A. Plaintiffs Contend

Both parties currently anticipate various in limine motions pertaining to the admissibility of expert opinions , evidence of other incidents and other issues. In prior cases, Coleman has pursued multiple Daubert and Motions in Limine seeking to limit Plaintiffs' expert testimony and evidence pertaining to similar carbon
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monoxide poisoning incidents involving the same model and Coleman's similar models of portable propane heaters as well as the recoverable damages. Plaintiffs will be presenting many of the same expert witnesses who have testified in the prior similar cases involving the same and similar models of heaters.

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Plaintiffs anticipate motions to admit deposition testimony of Coleman's employees and police investigators taken in other carbon monoxide poisoning death cases against Coleman and to compel discovery of information related to other heater models and similar incidents, which Plaintiffs' counsel has successfully pursued in prior cases involving the same and similar heater models. Plaintiffs anticipate motions relating to

E-Discovery since in past cases, Coleman has not produced one email in its discovery responses. B. Defendants Contend 1. Jarden Corporation will file a summary judgment motion on grounds that

it did not design, manufacture, distribute, or sell the subject heater; 2. Home Depot will file a summary judgment motion unless plaintiffs

identify admissible evidence that the subject heater was purchased from one of its stores. Plaintiff has indicated she does not have any documents establishing the subject heater was purchased at a Home Depot store; 3. Defendants may file a motion for a protective order to ensure the

preservation of the subject heater and all documents and information provided with the heater, including its packaging, and concerning inspections and testing of the subject heater. Plaintiffs' counsel has advised defense counsel that its consultants have inspected the subject heater at least once, and no notice was afforded to defendants; 4. Defendants anticipate some discovery motions, including a motion to

require plaintiffs to divulge factual information about the chain of custody of, and any testing performed on, the subject heater;
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5.

Defendants anticipate moving for complete or partial summary judgment

after the close of discovery regarding the substantive claims; and 6. Defendants anticipate various in limine motions on the admissibility of

expert opinions and other incidents. 5. AMENDMENT OF PLEADINGS: The Court's decisions on defendants' pending motions may or may not require amendments to Plaintiffs' Complaint for Damages. 6. EVIDENCE PRESERVATION: Plaintiffs will request that Coleman produce all documents pertaining to the design, testing and carbon monoxide poisoning incidents of all of Coleman's Powermate and Focus portable propane heaters. Plaintiffs allege that, thus far, Coleman has not produced e-mail, minutes or memoranda pertaining to the same. Defendants seek a stipulated protective order from plaintiffs regarding the subject heater, its packaging and informational materials that were supplied with it, and inspection and testing of the product. 7. DISCLOSURES: Initial Rule 26 disclosures have been made.

8.

DISCOVERY: Initial discovery interrogatories and requests for production have been

circulated by Defendants and will be shortly by Plaintiffs.

A.

Plaintiffs Contend Plaintiffs contend that a great deal of discovery regarding Coleman's

Company's same and similar heater models has been conducted in several other cases by some of the same Plaintiffs' and defense counsel and that the documents, exhibits, depositions and materials discovered or generated in the other cases are readily available for this case. Furthermore, some of Plaintiffs' expert witnesses have also
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testified in the other cases and were deposed by some of the same Coleman and Plaintiffs' attorneys. Plaintiffs contend this will save significantly on pre-trial discovery and preparation. Plaintiffs anticipate deposing between ten (10) to twenty (20) fact witnesses or more dependant upon the Court's rulings on the admissibility of other case evidence, depositions and discovery. B. Defendants Contend Defendants recently served written discovery requests (interrogatories and document requests) on plaintiffs. Plaintiffs' responses are due on May 27, 2008. Defendants anticipate deposing between fifteen (15) and twenty-five (25) fact witnesses. The facts and circumstances of the subject incident are unique. Decedent was intoxicated at the time of the incident, the subject heater had a prominently displayed carbon monoxide warning and a warning not to use the heater indoors, and decedent's residence had a central heating system that he did not use. Regarding Plaintiffs' contentions about discovery in prior cases, Defendants state that Plaintiffs have not identified which "documents, exhibits, depositions and materials" from previous cases they believe are relevant and admissible in the present case. Accordingly, Defendants do not agree that any such discovery is relevant and admissible in the present case. In addition, Defendants do not agree with the suggestion that previous testimony from Plaintiffs' experts in other cases will obviate the need for deposing their experts in the present case. Defendants intend to depose each of Plaintiffs' experts in the present case. 9. CLASS ACTION: This is not a class action. 10. RELATED CASES: There are no related cases pending in this district.

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11.

RELIEF: Plaintiffs seek monetary damages, punitive damages and an injunction

prohibiting the sale of the subject heater in California. Defendants contend punitive damages are not recoverable by decedent's daughter in a wrongful death action and that the complaint does not allege the requisite facts for the Estate to seek punitive damages. Defendants have also moved to dismiss the claim for injunctive relief and note that the model heater decedent was using at the time of the subject incident has been discontinued and, consequently, is no longer marketed. 8. SETTLEMENT AND ADR: A. Plaintiffs Contend Plaintiffs believe mediation should take place after Plaintiffs have disclosed expert reports from their liability experts, most of whom have previously been deposed by Defendants' attorneys in other cases, personal information regarding the decedent and surviving child, as well as reports by economists outlining economic damages. B. Defendants Contend Defendants agree that mediation is the appropriate form of alternative dispute resolution for this case. Because the circumstances of the decedent's demise involve misuse of the subject heater, Coleman does not believe that mediation would be appropriate until most of the factual discovery, including depositions of the principal fact witnesses, is completed, and Coleman has had an opportunity to inspect and test the subject heater. 9. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES: The parties do not consent to a magistrate judge in this case. 10. OTHER REFERENCES: A. Plaintiffs Contend Plaintiffs believe that the number of similar wrongful death products liability claims related to Coleman's line of portable propane radiant heaters suggests that

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multidistrict litigation may be a consideration. Plaintiffs note that the design of Coleman's entire line of radiant propane tank top heaters is the same. B. Defendants Contend Defendants do not believe that multidistrict litigation is warranted. Presently there are four active cases, including the present case, involving a Powermate 5045 propane radiant heater. One of those cases is only awaiting approval of the settlement documents and another is currently scheduled to go to trial in June. A third case is scheduled to go to trial September 2, 2008. Other than this one, only one of the two cases scheduled to go to trial is pending in federal court. 11. NARROWING OF ISSUES: A. Plaintiffs Contend Plaintiffs contend that use of documents, depositions, witnesses andother discovery obtained in other similar cases would avoid some of the discovery and Daubert motions and conflicts already resolved by other federal courts and would substantially narrow the issues. B. Defendants Contend Plaintiffs have not identified what deposition or other discovery obtained in any other cases is allegedly relevant and admissible in the present case, which may be governed by a different test for a design or manufacturing defect and, accordingly, Defendants cannot comment on whether any such discovery or depositions can be used in lieu of conducting formal discovery in this case. Coleman does not agree that discovery and Daubert motions in any previous litigation, none of which applied California substantive law, are controlling in the present case. Furthermore, there is not consistency to the decisions of other courts to the discovery and Daubert motions that have been decided. 12. EXPEDITED SCHEDULE: Plaintiffs contend that allowing the use of documents, depositions, witnesses and other discovery obtained in other similar cases, and avoiding some of the discovery
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and Daubert motions and conflicts already resolved by other federal courts, would allow for a more expedited pre-trial schedule. Defendants do not believe this matter can be handled on an expedited basis. 13. SCHEDULING: A. B. C. 2009; D. 2009; E. F. G. H. I. J. 14. TRIAL: Jury Trial, expected length 10 days. 15. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS: Defendants have filed the Certification of Interested Entities or Persons required by Civil Local Rule 3-16. 16. SUCH OTHER MATTERS AS MAY FACILITATE THE JUST, SPEEDY AND INEXPENSIVE DISPOSITION OF THIS MATTER: See items 8, 11, 12, and 13 above. Plaintiffs to disclose any rebuttal expert reports: May 8, 2009; Last date to complete mediation: May 29, 2009; Expert discovery to be completed: June 26, 2009; Last date to hear dispositive motions: August 13, 2009; Final pre-trial conference: Trial date: Defendants to disclose their list of experts and expert reports: April 24, Last date to file third party cross-complaints: October 1, 2008; Last date to complete non-expert discovery: January 9, 2009; Plaintiffs to disclose their list of experts and expert reports: February 13,

Plaintiffs Contend: Allowing the use of documents, depositions, perpetuation testimony and other discovery obtained in other propane heater cases particularly those involving the carbon
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monoxide poisoning deaths from the same model of heater and avoiding some of the discovery and Daubert motions denied by other federal courts on the same expert witnesses and conflicts already resolved by other federal courts would facilitate the just, speedy and less expensive disposition of this matter.

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Dated: May __, 2008

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For the Plaintiffs:

By

/s/ Jeffery M. Campiche, WSBA No. 7592 Pro Hac Vice CAMPICHE BLUE, PLLC Attorney for Plaintiffs 4765 Columbia Center 701 Fifth Avenue Seattle, WA 98104 Tel. 206-281-9000 Fax: 206-281-9111 Email: [email protected]; [email protected]

By

/s/ Michael E. Blue, CA Bar No. No. 141314 CAMPICHE BLUE, PLLC Attorney for Plaintiffs 4765 Columbia Center 701 Fifth Avenue Seattle, WA 98104 Tel. 206-281-9000 Fax: 206-281-9111 Email: [email protected]

By

/s/ Clayton W. Kent, S.B. No. 123164 BRAYTON PURCELL, LLP Attorney for Plaintiffs 222 Rush Landing Road P.O. Box 6169 Novato, CA 94948-6169 Email: [email protected], [email protected]

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For Defendants:

By

/s/ Scott R. Schillings Pro Hac Vice HINKLE ELKOURI LAW FIRM, L.L.C, 8621 E. 21st Street North, Suite 200 Wichita, KS 67206-2991 Tel.: 316-660-6510 Fax: 316-660-6610 Email: [email protected] - and -

By

/s/ Garrett Sanderson III S. Mark S. Varney Carroll, Burdick & McDonough, LLP 44 Montgomery Street, Suite 400 San Francisco, CA 94104 Tel.: (415) 989-5900 Fax: (415) 989-0932 Email: [email protected] Attorneys for Defendants The Coleman Company Inc., Jarden Corporation, and Home Depot U.S.A., Inc.

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