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IN RE FEMA TRAILER FORMALDAHYDE PRODUCTS LIABILITY
628 F.3d 157 (2010)
In re: FEMA TRAILER FORMALDAHYDE PRODUCTS LIABILITY LITIGATION.
Raymond Bell, III, Plaintiff-Appellant,
v.
Keystone RV Company; Shaw Environmental, Inc.; Federal Emergency Management Agency, Defendants-Appellees.
No. 09-31131.
United States Court of Appeals, Fifth Circuit.
December 14, 2010.
Ryan Estea Johnson (argued), James Conner Percy, Jones Walker, Baton Rouge, LA, Madeleine M. Fischer, Jones Walker, L.L.P., New Orleans, LA, for Keystone RV Co.
Michael David Kurtz, Catherine N. Thigpen, Karen Kaler Whitfield, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, for Shaw Environmental, Inc.
Henry Thomas Miller, Senior Trial Counsel, U.S. Dept. of Justice, Torts Branch Civ. Div., Washington, DC, Michele Susan Greif (argued), U.S. Dept. of Justice, Dept. of Environmental Torts, Washington, DC, for Fed. Emergency Management Agency.
Before JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR, District Judge.*
EDITH H. JONES, Chief Judge: Appellant Bell challenges the dismissal with prejudice of his case following the district court's denial of his requests either to substitute a new "bellwether"1 plaintiff or to continue the scheduled trial date. The court's actions were taken in the course of its management of thousands of similar MDL-consolidated suits for allegedly injurious formaldehyde exposure in FEMA trailers following Hurricanes Katrina and Rita. After reviewing all the factors that affected the district court's decisions, we find no abuse of discretion and AFFIRM. I. BACKGROUND AND STANDARD OF REVIEWRaymond Bell and his mother, like thousands of other plaintiffs, filed suit against multiple defendants who participated in the government's program to supply temporary housing for victims of the devastating 2005 hurricanes. These cases were assigned by the Multi-District Litigation Panel for pretrial management by Judge Engelhardt in New Orleans. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., MDL. No. 07-1873. After he denied the motion for class certification, the judge systematically began issuing, with counsel's participation, pretrial management orders and trial dates for bellwether trials. Pretrial Order 28, on February 10, 2009, set dates in 2009 and January 2010 for four bellwether cases, each to be prosecuted by a plaintiff against one of the four trailer manufacturers estimated to have the most units at issue in the suits. The parties were to confer on the identity of the plaintiffs in these trials, while the defendant manufacturers were Gulf Stream, Fleetwood, Forest River, and Keystone. The court insisted that proper venue be established in the Eastern District of Louisiana for each of these test cases. On April 6, 2009, the case of Diana Bell, Raymond's mother, was identified as the bellwether case against Keystone RV, manufacturer of the trailer in which her family had lived. Both Diana and Raymond had been "nominated" as bellwether plaintiffs, but the court selected Diana. A formal scheduling order followed two days later and incorporated an earlier comprehensive trial management order. Trial was set to occupy two weeks in January 2010. Pretrial preparation proceeded concerning the trailer that had housed the Bells. Five months later, in early September, Diana Bell requested, and the court permitted, her withdrawal as a bellwether plaintiff.2 Diana then voluntarily dismissed
her case with prejudice on September 23. After consulting with counsel, the court promptly selected Raymond Bell as the next bellwether plaintiff in order to maintain the benefit of trial preparation concerning the particular trailer. On September 29, however, Bell moved to substitute a new bellwether plaintiff or obtain a continuance of the January trial date. He made three arguments in support of this dual motion. He asserted he could not take two weeks off from his job to attend trial; moreover, as the supporter of a two-year-old child, he could not afford to forego at least one week of income; and the trial dates would interfere with his participation in Delgado Community College classes at the beginning of the spring semester. Bell suggested no alternative trial date that would be convenient. Keystone RV and its co-defendants questioned how these facts, even if true, could differentiate Raymond Bell's inconvenience at meeting a trial date from that of any other plaintiff, and it pointed out that he had three and a half months before trial in which to resolve these alleged problems. On October 1, the court denied Raymond Bell's motions "for all the reasons the undersigned has previously discussed with counsel," but it also stated that, "the Court is willing to appropriately instruct the jury as to any absences/prior commitments of bellwether plaintiff Raymond Bell, III that prohibit him from sitting through the entire trial, such that those absences will be excused."
* District Judge of the Northern District of Texas, sitting by designation.
1. "Bellwether" trials typically are used to assess whether a class should be certified, In re Norplant Contraceptive Prods. Litig., 165 F.3d 374 (5th Cir. 1999), or to assess a claim's value for settlement purposes, Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998). The latter purpose is relevant here. See Part II.A, infra.
2. Before she requested to withdraw, Diana had refused, until a court order was entered, to submit to a medical exam, and had missed the court's deadline to turn over expert reports.
3. In fact, because of Bell's dismissal, the court had to appoint another bellwether plaintiff, and another contractor defendant has since become involved.
4. Our authority holds that before requiring a Rule 41(a)(2) dismissal to be with prejudice, a court must allow a plaintiff the opportunity to retract his motion to dismiss. See Elbaor, 279 F.3d at 320. Bell has not suggested that the court's procedure here was deficient or that he would have taken advantage of any such offer.
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