IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ANAJAI CALCAÑO PALLANO, et al., )
)
Plaintiffs, )
)
v. ) C.A. No. N09C-11-021 JRJ
)
THE AES CORPORTATION, et al., )
)
Defendants. )
ORDER
AND NOW TO WIT, this 4th day of January, 2016, the Court having duly
considered AES’s Motion for Separate Trials; 1 Plaintiffs’ Memorandum of Law in
Opposition to Defendants’ Motion for Separate Trials; 2 Plaintiffs’ Opening
Memorandum in Support of a Joint Trial of Plaintiffs’ Claims Commonly Arising
Out of AES’s Dumping of Coal Ash Waste in Arroyo Barril; 3 and AES’s
Opposition to Plaintiffs’ Motion for a Joint Trial; 4 IT APPEARS THAT:
1. This litigation arises out of the alleged unlawful dumping of toxic
industrial waste (“Coal Ash Waste” or “Waste”) in the Dominican Republic by
The AES Corporation (“AES”) and four of its wholly owned subsidiaries, AES
1
AES’s Motion for Separate Trials (“Defs.’ Mot. Separate Trials”) (Trans. ID. 57752904).
2
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Separate Trials
(Trans. ID. 57899787).
3
Plaintiffs’ Opening Memorandum in Support of a Joint Trial of Plaintiffs’ Claims Commonly
Arising Out of AES’s Dumping of Coal Ash Waste in Arroyo Barril (Pls.’ Mot. Joint Trial”)
(Trans. ID. 57753330).
4
AES’s Opposition to Plaintiffs’ Motion for a Joint Trial (“Defs.’ Opp’n”) (Trans. ID.
57898787).
Atlantis, Inc.; AES Puerto Rico, LP; AES Puerto Rico, Inc.; and AES Puerto Rico
Services, Inc. (collectively “Defendants”). 5 Plaintiffs, residents of the Dominican
Republic, allege they were “wrongfully exposed to reproductive, carcinogenic, and
other toxins in the Coal Ash Waste, either directly or in utero, and as a result,
suffered severe personal injuries, including birth defects and death.” 6 These birth
defects include, but are not limited to, conjoined twins, missing limbs, missing
organs, internal organs extruding from the body, cranial and bony malformations,
central nervous system injuries, and gastrointestinal deformities. 7
2. Twenty-five plaintiffs initially brought suit against the Defendants.8 By
agreement of the parties, the above captioned matter (Pallano) was designated to
proceed first. 9
3. According to Defendants, a joint trial will cause significant prejudice and
confuse the jury because the fact that there are multiple plaintiffs will improperly
suggest to the jury that there must be a common cause for the Plaintiffs’ birth
defects, even though each Plaintiff has unique injuries. 10 Defendants also argue
that a joint trial will not serve judicial economy because: (1) the Plaintiffs’
5
Second Amended Complaint ¶¶ 1, 4 (“SAC”) (Trans. ID. 40099941).
6
Id. ¶ 16.
7
Id. ¶ 2.
8
Pls.’ Mot. Joint Trial at 1–2.
9
Id. See also Trans. ID. 43495871.
10
Defs.’ Mot. Separate Trials at 10–12; Defs.’ Opp’n at 13–15.
2
exposures and pregnancies are not similar and occurred at different times; and (2)
each Plaintiff’s alleged injuries are not similar.11
4. Delaware Superior Court Civil Rule 20(a) provides, in pertinent part:
All persons may join in one action as plaintiffs if they assert any right
to relief jointly, severally, or in the alternative in respect of or arising
out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all these
persons will arise in the action . . . .
“This rule, like the federal rule it is modeled after, is permissive in nature
with the purpose of promoting trial convenience, expediting the final disposition of
disputes and thereby preventing multiple lawsuits.” 12 However, pursuant to Rule
20(b), the Court “may order separate trials or make other orders to prevent delay or
prejudice.”
5. Pursuant to Delaware Superior Court Civil Rule 42(b):
The Court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy,
may order a separate trial of any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or of any number of claims,
cross-claims, counterclaims, third-party claims, or issues.
6. In this case, all of the Plaintiffs’ claims arise out of the Defendants’
alleged unlawful dumping of Coal Ash Waste at the Arroyo Barril port located in
the Samaná Province, and all of the Plaintiffs’ claims rely upon the same theory
that direct or in utero exposure to Coal Ash Waste and its toxic constituents
11
Defs.’ Mot. Separate Trials at 12–14; Defs.’ Opp’n at 15–17.
12
Sequa Corp. v. Aetna Cas. & Sur. Co., 1990 WL 123006, at *7 (Del. Super. 1990)
3
between 2004 and 2008 caused their injuries. All of the claims sub judice share
evidence and witnesses relating to the Defendants’ dumping and removal of the
Coal Ash Waste, testimony from AES’s representatives and eyewitnesses from
Puerto Rico and the Dominican Republic, and expert testimony relating to
causation and damages. Although the Plaintiffs’ injuries are not identical, many of
the Plaintiffs have similar injuries, including cognitive and developmental delays,
limb abnormalities, and digestive abnormities.
7. This litigation began in 2009 and trial is scheduled to begin
April 4, 2016. After considering the parties’ arguments, the facts of this case, and
the relevant rules and law, the Court does not find that separate trials are
warranted. Severance would be inefficient, duplicative, and expensive.
WHEREFORE, for the foregoing reasons, Defendants’ Motion for Separate
Trials is DENIED and Plaintiffs’ Motion for a Joint Trial is GRANTED.
IT IS SO ORDERED.
Jan R. Jurden, President Judge
4
Pallano
Combined Opinion