Case 1:12-cv-00695-RGA-SRF Document 359 Filed 02/12/21 Page 1 of 14 PageID #: 13125
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`LUIS ANTONIO AGUILAR MARQUINEZ, et
`al.,
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`
`
`Plaintiffs,
`
`v.
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`DOLE FOOD COMPANY, INC., et al.,
`
`Defendants.
`
`Civil Action No. 1:12-cv-00695-RGA
`
`(Consolidated with 00696, 00697, 00698,
`00699, 00700, 00701, 00702)
`
`
`PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’
`CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
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`Table of Contents
`Table of Contents ............................................................................................................................ ii
`Table of Authorities ........................................................................................................................ iii
`Introduction ..................................................................................................................................... 1
`Argument ........................................................................................................................................ 1
`Ecuador Organic and Constitutional law does not impose any time limitation on
`I.
`Plaintiffs’ claims. ........................................................................................................................ 1
`II.
`Even under Defendants’ approach, the Delaware limitations period applies. .................. 4
`III. There are sufficient facts to determine Plaintiffs were diligent in pursuing their claims—
`especially because Defendants have not put forth any evidence to generate a genuine issue of
`material fact. ............................................................................................................................... 8
`Conclusion .................................................................................................................................... 10
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`Table of Authorities
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`Cases
`American Sur. Co. of New York v. Gainfort, 219 F.2d 111 (2d Cir. 1955) .................................... 6
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) .................................................................... 2
`Brown v. E.I. duPont de Nemours & Co., 820 A.2d 362 (Del. 2003) ............................................. 8
`De Adler v. Upper New York Inv. Co. LLC, 2013 WL 5874645 (Del. Ch. Oct. 31, 2013) .............. 5
`Department of Homeland Sec. v. MacLean, 574 U.S. 383 (2015) .................................................. 5
`Frombach v. Gilbert Assocs., 236 A.2d 363 (Del. 1967) ................................................................ 6
`Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d 254 (3d. Cir. 2012) .................................. 9
`In re Asbestos Litig., 673 A.2d 159 (Del. 1995) ......................................................................... 8, 9
`Jones v. USPS Postal Service, 2018 WL 324730 (D. Del. Jan. 8, 2018) ........................................ 2
`Jutrowski v. Township of Riverdale, 904 F.3d 280 (3d Cir. 2018) .................................................. 2
`Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ........................................................................ 9
`Marquinez v. Dow Chemical Co., 183 A.3d 704 (Del. 2018) ......................................................... 1
`May v. Remington Arms Co., 2005 WL 2155229 (Del. Super. Ct. Aug. 31, 2005) ......................... 7
`Oakes v. Gilday, 351 A.2d 85 (Del. Super. 1976) ........................................................................... 7
`Pack v. Beech Aircraft Corp., 132 A.2d 54 (Del. 1957) ................................................................. 4
`Pallano v. AES Corp., 2011 WL 2803365 (Del. Super. July 15, 2011) ...................................... 1, 5
`Strassman v. Essential Images, 2018 WL 5718286 (M.D. Pa. Nov. 1, 2018) ................................ 2
`TL of Florida, Inc. v. Terex Corp., 54 F. Supp. 3d 320 (D. Del. 2014) ........................................... 5
`Vichi v. Koninklijke Philips Elecs. N.V., 2009 WL 4345724 (Del. Ch. Dec. 1, 2009) .................... 5
`
`Statutes
`10 Del. Code § 8119 ................................................................................................................... 1, 7
`Article 2235 of the Ecuadorian Civil Code ............................................................................. 1, 4, 7
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`Rules
`Fed. R. Civ. P. 8(c) .......................................................................................................................... 2
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`Introduction
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`The Ecuadorian Plaintiffs (“Plaintiffs”) in these consolidated cases respectfully file this
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`Reply Memorandum in support of their Cross-Motion For Partial Summary Judgment on this issue
`of limitations. Under the Delaware Borrowing Statute, 10 Del. C. § 8121, Plaintiffs’ claims are
`governed by the Delaware statute of limitations, rather than by Article 2235 of the Ecuadorian
`Civil Code. The reason? Ecuador’s fours years are more years than Delaware’s two. The undis-
`puted facts demonstrate that the claims are timely under Delaware law, and Plaintiffs are entitled
`to summary judgment on limitations.
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`Argument
`I. Ecuador Organic and Constitutional law does not impose any time limitation on Plain-
`tiffs’ claims.
`
`Defendants argue that Plaintiffs’ claim would be governed by a four-year time-bar under
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`Ecuador law. D.I. 352 at 8; D.I. 356 at 16–18. Defendants’ argument is wrong. As explained by
`Professor Maria Dolores Mino (“Mino Decl.,” attached as Exhibit 1 to D.I. ), “the adequate remedy
`that the plaintiffs in this case could and most likely [would] pursue [in Ecuador] to obtain redress
`for their claim is the constitutional jurisdiction through ‘acción de protección,’” which is a consti-
`tutional claim that would be subject to no statute of limitations at all. Ex. 1, ¶ 16; Ex. 2 (Mino 2d
`Decl.), ¶ 16. Defendants do not deny Professor Mino’s qualifications, nor could they. She is an
`expert on the Ecuadorian Constitution, an alternate judge on the Constitutional Court in Ecuador,
`Professor of Law and Director of the Center for Transparency and Human Rights of Universidad
`Internacional del Ecuador, and the Executive Director of Observatorio de Derechos y Justicia, an
`Ecuadorian NGO that works on the protection of human rights. Ex. 1, ¶¶ 1–3; Ex. 2 ¶¶ 1–3.
`Defendants are wrong in arguing that the Ecuadorian constitutional claim cannot be con-
`sidered because it is “unpled.” Under the Borrowing Statute, courts ask whether the statute of
`limitations for an “analogous” foreign claim is longer or shorter than Delaware’s. Pallano v. AES
`Corp., 2011 WL 2803365, *4 n.37 (Del. Super. July 15, 2011). That standard is more than met
`here. Indeed, Professor Mino has opined that the facts alleged in Plaintiffs’ complaint as currently
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`pled already state a constitutional claim: “According to the facts alleged in the Complaint, the
`plaintiffs in this case can pursue redress under the [acción de protección] against the defendants
`under article 88 of the [Ecuador Constitution], at any time. The plaintiffs may argue that the de-
`fendant violated their constitutional right to health when a) it did not take any measures to prevent
`labor-related illnesses among workers; and b) once those illnesses were reported, no measure was
`adopted to provide redress to the plaintiffs.” Ex. 1, ¶ 7(8) (emphasis added). “[T]he claims pre-
`sented by the plaintiffs in this case fall under constitutional and human rights law.” Id. ¶ 17. “The
`facts of the case could therefore be subject matter for an [acción de protección], regardless the
`moment of their occurrence.” Id. ¶ 7(c); see also Ex. 2, ¶¶ 7(a), (d). Plaintiffs need not amend their
`Complaint to add a constitutional claim. The claim is already there.
`Defendants contend Plaintiffs have not labeled their claim as “acción de protección.” This
`ignores Professor Mino’s testimony that a negligence claim can be brought as an acción de protec-
`ción. Id. ¶ 10 (“the fact that the negligent conduct of the defendant caused harm to the plaintiffs’
`health, gives them grounds to present successfully an [acción de protección]”); Ex. 2 ¶ 8. So Plain-
`tiffs’ negligence claim already qualifies as an acción de protección. And Defendants misplace their
`focus on a claim’s label. A plaintiff need only present “a short and plain statement of the claim
`showing that the pleader is entitled to relief.” Jutrowski v. Township of Riverdale, 904 F.3d 280,
`293 n.14 (3d Cir. 2018) (quoting Fed. R. Civ. P. 8(c)). “[A] complaint...must contain either direct
`or inferential allegations respecting all the material elements necessary to sustain recovery under
`some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (internal quotation
`marks and citation omitted; emphasis in original). “[I]mperfect statements of the legal theory sup-
`porting the claim asserted” are not a basis for dismissal. Jones v. USPS Postal Service, 2018 WL
`324730 (D. Del. Jan. 8, 2018) (Andrews, J.); see also Strassman v. Essential Images, 2018 WL
`5718286 (M.D. Pa. Nov. 1, 2018) (no need to plead “specific legally cognizable claims”).
`Dole submits a declaration from Dr. Santiago Velázquez Coello (D.I. 351-1, Ex. J), which
`strikingly does not dispute Professor Mino’s conclusion that the facts already pleaded in Plaintiffs’
`Complaint state a claim under the Ecuadorian Constitution. Dr. Velázquez asserts in conclusory
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`fashion that an acción de protección would be barred by principles of retroactivity, but he offers
`no response to the specific examples cited by Professor Mino allowing constitutional claims to be
`raised even if they depend on facts antedating the 2008 adoption of the current Ecuadorian Con-
`stitution. Ex. 1, ¶ 7(c) (“[S]everal AP regarding facts that occurred before the entry into force of
`the EC in 2008, have been successfully litigated in the constitutional jurisdiction after the entry
`into force of the EC in 2008.”); Ex. 2, ¶¶ 7(c), 9–16 (detailing the jurisdictional law, doctrinal
`precedent, and practical precedent of retroactive application of the 2008 Ecuadorian Constitution).
`Dole contends that constitutional claims cannot be asserted because Ecuadorian labor
`courts are available to hear worker rights claims. D.I. 350 at 10. But Dole ignores Professor Mino’s
`testimony that in several decisions, the Ecuadorian Constitutional Court has recognized constitu-
`tional jurisdiction to hear worker rights claims in Ecuador. Ex. 1, ¶ 7(e). The Constitutional Court
`“has recognized that employers that violate the rights of workers must pay for damages under the
`broader concept of ‘full reparations.’ Also, the [Court] has stated in one particular case, that work-
`ers that have suffered labor-related illnesses are to be recognized as victims, and therefore receive
`a just compensation for the violations of their constitutional rights.” Id. ¶ 7(f). “[T]he fact that
`Ecuadorian legal framework has both civil and labor-related remedies, do not bar the plaintiff to
`present an acción de protección in this case, because he is claiming the existence of human rights
`violations, and seeking redress for them.” Id. ¶ 31. The Ecuadorian cases cited by Dr. Velázquez
`do not support Dole. In fact, they show that a constitutional claim would be available here.1 Fur-
`ther, contrary to Dr. Velázquez’s view, Plaintiffs would not need to exhaust their claims before
`seeking constitutional redress. Ex. 2, ¶¶ 7(e), 17–19.
`
`1 Dr. Velázquez cites an Ecuador decision rejecting Dole’s position that constitutional claims are
`automatically precluded by alternative remedies: “Establishing that the protection action does not
`proceed in an absolute manner when an act is challenged in a court of law, would imply making
`the protection action ineffective and illusory to the point that Article 88 of the Constitution that
`regulates this guarantee would become inapplicable.” D.I. 351-1, Ex. K ¶ 60. Rather, a constitu-
`tional claim should be denied in favor of other remedies “only, when [judges] do not find a viola-
`tion of constitutional rights.” Id. That is not this case, especially when Dole’s position is that Plain-
`tiffs do not have “an appropriate and effective ordinary channel” under alternative remedies in
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`Dr. Velázquez further asserts that a civil law claim in Ecuador would be governed by a
`different set of procedural rules from a constitutional claim, so that “it is not possible for a civil
`trial for damages to become a constitutional case.” D.I. 350 at 10. But that scenario is irrelevant.
`Plaintiffs do not propose to file a civil law claim in Ecuador and then seek to transform it into a
`constitutional claim. Indeed, the fact that different rules apply to the two procedures is exactly the
`point. As Professor Mino explains, “[t]he Constitutional jurisdiction has its own rules of procedure,
`that differ from those that apply to Civil Law. . . . Therefore, plaintiffs in this case would not be
`affected by the . . . 4-year statute of limitations set forth in Ecuador’s Civil Code, if they were to
`pursue redress through an acción de protección.” Ex. 1, ¶ 15; Ex. 2, ¶ 7(b), 11, 14.
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`II. Even under Defendants’ approach, the Delaware limitations period applies.
`
`Even under Dole’s unfounded assumption that Plaintiffs’ claims are limited to claims gov-
`erned by Article 2235 of the Ecuador Civil Code, the Delaware Borrowing Statute would still point
`to the Delaware two-year limitations provision in this case.
`(1) Dole notes Ecuador’s lack of judicial tolling doctrines, but the absence of such tolling
`doctrines in Ecuador is immaterial to the question presented. Under the Delaware Borrowing Stat-
`ute, courts select the shorter limitations period based on statutory text as written, and only after-
`wards consider any judicially created tolling or accrual principles that might apply to the applicable
`statute. That was how the Delaware Supreme Court described the Borrowing Statute four years
`after its enactment. Pack v. Beech Aircraft Corp., 132 A.2d 54, 57 (Del. 1957) (Borrowing Statute
`“borrows the foreign statute if the latter provides a limitation shorter than that of the law of the
`forum.”). Dole’s motion described the Borrowing Statute in the same terms. D.I. 334 at 10 (“When
`another jurisdiction’s statute of limitations applies, ‘the borrowed statute is accepted with all its
`accoutrements,’ including rules governing accrual and tolling.”) (quoting Plumb v. Cottle, 492 F.
`
`Ecuador. Id. ¶ 61. Dr. Velázquez cites another decision where the Court denied a constitutional
`claim because “there is no violation of constitutional rights.” D.I. 351-1, Ex. L, at 20. This case is
`different. In a third case, the Court recognized that “the contentious-administrative channel is not
`and cannot be considered an adequate channel for remedying violations of constitutional rights.”
`D.I. 351-1, Ex. M, at 14.
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`Supp. 1330, 1336 (D. Del. 1980) (emphasis altered)). Dole now disavows its own prior words that
`the accoutrements apply only after deciding which jurisdiction’s law applies by the plain text.
`But that prior understanding was correct. The Delaware courts consistently follow Plain-
`tiffs’ interpretation:
`TL of Florida, Inc. v. Terex Corp., 54 F. Supp. 3d 320, 328 (D. Del. 2014) (considering
`tolling principles only after concluding that Delaware’s limitations statute was shorter on its face);
`
`De Adler v. Upper New York Inv. Co. LLC, 2013 WL 5874645, *13 & n.149 (Del. Ch. Oct.
`31, 2013) (determining that the Delaware limitations statute of three years was shorter than the
`Ecuadorian statute of ten years by consulting the texts of the statutes on their face, without con-
`sidering tolling or accrual principles—“regardless of claim accrual or tolling under Ecuadorian or
`Delaware law”);
`
`Vichi v. Koninklijke Philips Elecs. N.V., 2009 WL 4345724, at *17 (Del. Ch. Dec. 1, 2009)
`(selecting three-year Delaware statute of limitation, and only afterwards considering tolling prin-
`ciples under Delaware law, including “three doctrines that may toll the statute of limitations: (1)
`inherently unknowable injuries, (2) fraudulent concealment, and (3) equitable tolling following a
`breach of fiduciary duties”);
`
`Pallano v. AES Corp., 2011 WL 2803365, *4 n.38 (Del. Super. July 15, 2011) (expressly
`deferring consideration of judicially created tolling principles until first determining which statute,
`on its face, prescribed a shorter limitations period: “This contention [regarding the discovery rule]
`is addressed below in the Court’s analysis of Plaintiffs’ contention that the statute of limitations
`was tolled.”).
`
`Dole quotes Pallano’s statement that “[t]he [borrowing] statute’s purpose is to prevent a
`non-resident from bringing a foreign cause of action, which is precluded by that jurisdiction’s
`statute of limitations, in Delaware where the statute of limitations period is longer.” 2011 WL
`2803365, at *3. But Dole ignores that the Borrowing Statute achieves this purpose by determining
`which limitations period is shorter by examining the relevant statutory provisions as written, rather
`than any judicially created tolling or accrual principles.
`Dole would read the word “law” in the Borrowing Statute as meaning “judicial decisions
`as well as statutes,” which contradicts how the word “law” is used elsewhere in Title 10, Part V
`(Limitations of Actions), Chapter 81. E.g., section 8134(a) (“The provisions of any law, rule or
`regulation to the contrary notwithstanding . . . .”). The “Laws of Delaware” are not a summary of
`court rulings but rather the collection of legislative enactments before their codification in the
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`Delaware Code. See also Department of Homeland Sec. v. MacLean, 574 U.S. 383, 395 (2015)
`(“‘Specifically prohibited by law’ here means statute.”) (citation omitted). Dole would also vastly
`complicate judicial inquiry under the Borrowing Statute by requiring intensive inquiries into for-
`eign judicial decisions and into how foreign courts might apply their statutes in practice, rather
`than allowing courts to rely on the time limits prescribed by foreign statutes on their face. Dole
`has no answer to any of these points.
`Dole latches onto the language of the Delaware Supreme Court in Frombach v. Gilbert
`Assocs., 236 A.2d 363, 366 (Del. 1967), that, under the Borrowing Statute, the Court must consider
`“any exception which exists to the limitation rule of that state.” Dole focuses entirely on this snip-
`pet, distorts its meaning, and ignores what the Frombach Court actually did. Dole simply ignores
`the point made in Plaintiffs’ Motion (D.I. 340, at 15) that Frombach did not involve judicial tolling
`doctrines at all. Rather, Frombach involved two Pennsylvania statutes: the two-year Pennsylvania
`statute and the Pennsylvania Savings statute, which did not apply under the facts of the case. 236
`A.2d at 365 n.* (“The Pennsylvania Savings Act (12 Purdon’s Pa. Stat. Ann. § 33) applies only
`where a judgment is reversed or where judgment is entered against the plaintiff after a verdict in
`his favor.”). Thus, when Frombach referred to “any exception” to a state’s limitation rule, it was
`referring to a statutory exception. Id. at 366 (“concededly the Pennsylvania act would not toll its
`limitation under the circumstances here”) (emphasis added). That is perfectly consistent with (and
`in fact bolsters) Plaintiffs’ argument that the word “law” in the Delaware Borrowing Statute refers
`to statutes rather than judicially created tolling doctrines. Indeed, Frombach quoted Pack’s lan-
`guage focusing solely on statutes. Id. at 365 (foreign plaintiff “must bring the foreign statute of
`limitations along with him if the foreign statute prescribes a shorter time than the domestic stat-
`ute”) (citation omitted; emphasis added). That Frombach did not involve a judicial tolling rule
`makes Dole’s assertion that “[t]he Frombach court directly addressed and rejected Plaintiffs’ ar-
`gument offered here” (D.I. 350, at 1) highly inaccurate. Frombach did nothing of the sort.2
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`2 The cases cited in Frombach confirm that a court considers tolling principles accompanying
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`Dole is also wrong in contending that May v. Remington Arms Co., 2005 WL 2155229 (Del.
`Super. Ct. Aug. 31, 2005), “is directly on point.” D.I. 350 at 6. That case did not involve any
`judicially created tolling rules. Rather, the Superior Court framed the issue under the Borrowing
`Statute solely in terms of statutorily established periods: “Under North Carolina’s statute of repose,
`Plaintiff's claim expired a year before he was hurt. Under Delaware’s statute of limitations, how-
`ever, Plaintiff had two years after his injury to file suit, which he did in the nick of time.” 2005
`WL 2155229, *1. May thus offers no support at all to Dole’s argument that this Court should con-
`sider judicial tolling rules in applying the Borrowing Statute.3
`(2) Dole also argues that the four-year period prescribed by Article 2235 is shorter than
`the two-year period of the Delaware limitations statute, 10 Del. Code § 8119, based on Dole’s
`repeated insistence that the four-year clock of Article 2235 “runs from the time of the wrongful
`‘act.’” D.I. 350, at 1. Dole is wrong in suggesting that Article 2235 and 10 Del. Code § 8119
`somehow operate in fundamentally different ways, or that this somehow makes a difference to the
`limitations analysis. It does not. 10 Del. Code § 8119 begins to run on “the date upon which it is
`claimed that such alleged injuries were sustained.” In Delaware, “the statute of limitations begins
`to run no earlier than the last date of the wrong.” Oakes v. Gilday, 351 A.2d 85, 87 (Del. Super.
`1976).
`
`Article 2235 is no different. Defendants Shell Oil, et al. acknowledge that the four-year
`Ecuador statute does not begin to run until “the last ‘act’ that gives rise to a plaintiff’s claim.” D.I.
`356, at 1. Dole skirts over the key question: What is the relevant “act”? Its own experts make clear
`
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`the borrowed statute only after it has already decided to apply the borrowed statute. E.g., Amer-
`ican Sur. Co. of New York v. Gainfort, 219 F.2d 111, 112 (2d Cir. 1955) (where New York
`limitations statute was 20 years and California five years, New York court would borrow the
`California statute and then apply California tolling principles, because “no New York case
`suggests such an exception to the general principle that the borrowed statute of limitations is
`accepted with all its accoutrements”).
`3 Unlike the North Carolina statute of repose in May, which terminated any claims six years
`after a firearm’s manufacture, the Ecuador statute (regardless of label) does not begin to run
`until the harmful or injury-producing event occurs.
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`that the clock in Ecuador does not begin to run until the injury-producing act occurs. The Decla-
`ration of Dr. Luis Sergio Parraguez Ruiz states that “the statute of limitations is four years,” “is
`very clear, and allows no room for discussion. Under Ecuadorian law, the period is counted from
`the time of the act that caused the damage.” D.I. 234, Exhibit 22 ¶¶ 29–30; see also id. at 8 (“The
`statute of limitations for an action to recover damages (4 years) starts from the occurrence of the
`act that caused the damage . . . .”). Dr. Velázquez opines that “the period for filing compensatory
`actions begins with the commission of the action generating the damage. . . . This specific rule for
`this case clearly states the statute of limitations begins at the time the harmful event took place.”
`D.I. 234, Exhibit at 23, at 7.
`Accordingly, Dole falls flat in attempting to distinguish the trigger events under the Ecua-
`dor and Delaware limitations statutes. Its summary judgment argument should be rejected for the
`simple reason that four years is longer than two, and so the Delaware limitations applies under the
`Borrowing Statute.4
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`III. There are sufficient facts to determine Plaintiffs were diligent in pursuing their
`claims—especially because Defendants have not put forth any evidence to generate a genuine
`issue of material fact.
`
`To oppose Plaintiff’s motion, Defendants only offer “suggest[ions],” D.I. 352 at 3, and
`“inferences,” id at 7, which fail to meet Defendants’ summary judgment burden. Here, the only
`evidence in the record—including evidence that Defendants themselves have submitted to the
`Court—shows that Plaintiffs’ claims are timely.
`Delaware’s discovery rule turns on “whether a Plaintiff was blamelessly ignorant of a po-
`tential claim or dilatory in pursuing an action.” Brown v. E.I. duPont de Nemours & Co., 820 A.2d
`362, 368 (Del. 2003). “[T]he limitations period does not begin to run until the plaintiffs were on
`notice that the injury may be tortiously caused by the defendant's product.” Id. To decide whether
`
`
`4 The flaw in Dole’s position is illustrated by the fact that Defendants cannot agree on how to
`describe the four-year statute governing claims under Article 2235 of the Ecuadorian Code. Dole
`continues to insist it is a “statute of repose.” D.I. 352, at 8. Defendants Shell, et al. refuse to adopt
`that description. D.I. 356, at 2 n.1.
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`a Plaintiff should be expected to be on notice, the Delaware Supreme Court instructs to rely on the
`plaintiff’s level of knowledge and education and the extent of his medical evaluation. Id. at 368
`n.22 (citing In re Asbestos Litig., 673 A.2d 159, 163 (Del. 1995)). It is not necessarily sufficient to
`have knowledge of exposure and an ailment; there must be some connection between the exposure
`and the ailment as part of a diagnosis. See, e.g., In re Asbestos Litig., 673 A.2d at 163 (“Mere
`exposure to asbestos accompanied by symptomatology associated with asbestosis may not suffice
`. . ..”). “The limitations period for a toxic tort does not begin immediately upon the onset of phys-
`ical problems if the symptoms are reasonably attributable to another cause and the plaintiff is not
`on notice of the tortious cause.” Brown, 820 A.2d at 368.
`The evidence shows that, under the discovery rule, the statute of limitations did not begin
`to run until after class action tolling began in 1993. Plaintiffs have evidence in the form of at least
`one of the following: (1) sworn declarations they did not know of their injuries until well after
`cross-jurisdictional tolling started in 1993, D.I. 335-1 at 82–170; (2) responses5 when asked what
`exams they had to indicate their infertility or sterility, id. at 176–184; or (3) test results, id. at 186–
`88. Moreover, two-thirds of Plaintiffs lack more than a primary education—seventeen do not even
`have that. Ex. 3 at 1 (all together sixteen have a primary education, eleven have a secondary edu-
`cation, and only three have a university degree). As many of the Plaintiffs indicated on their inter-
`view forms, the tests were their first time seeking medical treatment for their infertility—all after
`1993. D.I. at 335-1 at 176–184. And as the Defendants will and have averred there are many causes
`to infertility. Without a medical diagnosis and counsel, Plaintiffs might never have discovered the
`cause of their injury.
`Requiring more evidence than is currently in the record would be to ask the Plaintiffs the
`impossible task of proving a negative. Plaintiffs could not have confirmed their injury was caused
`
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`5 These questionnaires ("Questionnaire Responses") are verified responses to Interrogatories
`from prior DBCP litigation. See July 26, 2018 Scheduling Order entered in Cause No. 00697
`D.I.176, ¶. 5.a.
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`by DBCP until the medical exams. See In re asbestos Litig., 673 A.2d at 163. And not until they
`were contacted by counsel that they may have known they had a right to sue.
`The affidavits give the specific date the Plaintiffs discovered their sterility and the precise
`conditions that they became aware of their rights to sue. See, e.g., D.I. 335-1, at 89–90. Defendants
`currently offer nothing to rebut this evidence except “suggest[ions],” D.I. 352 at 3, and “infer-
`ences,” id at 7. 6 They provide no facts showing that the Plaintiffs knew their medical diagnosis or
`the reason for it. Nor do they provide an explanation as to how the Plaintiffs could know of it.
`Instead, they rely on “a strong inference that Plaintiffs knew of their claimed injuries long before
`1993”. See D.I. 352 at 7. While Defendants offer inferences, Plaintiffs offer evidence to show that
`no reasonable juror would conclude by a preponderance of the evidence that the Plaintiffs were
`not blamelessly ignorant of their injuries.
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`Conclusion
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`Plaintiffs’ motion should be granted and partial summary judgment entered in Plaintiffs’
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`favor on limitations.
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`6 Typically a Rule 56(d) motion requires specificity in what the party invoking it seeks to
`discover. See Dowling v. Philadelphia, 855 F.2d 136, 139–40. (3d Cir. 1988) (“ . . . a party
`seeking further discovery in response to a summary judgment motion submit an affidavit spec-
`ifying, for example, what particular information is sought . . .”). Defendants’ Declaration
`merely states they seek facts that “would directly undercut Plaintiffs’ assertion that no Plaintiff
`discovered his injuries until after 1993,” D.I. 353 (Maloney Decl. ¶ 3), but provides no speci-
`ficity in what this information would be. Nevertheless, Plaintiffs are sympathetic to the frus-
`trations with the COVID-19 pandemic. The Court could prefer to delay deciding Plaintiffs’
`Motion under Rule 56(d)(1), despite this deficiency that usually precludes the protection of
`56(d). See Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015) (“Summary judgment may
`also be granted if the Rule 56(d) declaration is inadequate.”) (citing Koplove v. Ford Motor
`Co., 795 F.2d 15, 18 (3d Cir. 1986.). But it is unclear when the Ecuadorian Plaintiffs will be
`available for depositions because the embassy in Ecuador is not currently processing the ap-
`propriate visas. D.I. 346 (Plaintiffs’ Status Report on Travel Ability) at 2.
`10
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`

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`Case 1:12-cv-00695-RGA-SRF Document 359 Filed 02/12/21 Page 14 of 14 PageID #: 13138
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`Dated: February 12, 2021
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`
`Scott M. Hendler (Texas Bar No. 09445500)
`Admitted Pro Hac Vice
`1301 West 25th Street, Suite 400
`Austin, Texas 78705
`Telephone: 512.439.3200
`shendler@hendlerlaw.com
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`Respectfully submitted,
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`/s/ Drew C. Dalton
`Andrew C. Dalton (ID No. 5878)
`Cool Spring Meeting House
`1106 West 10th Street
`Wilmington, Delaware 19806
`Telephone: 302.652.2050
`adalton@bdaltonlaw.com
`Counsel for Ecuadorian Plaintiffs
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`11
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