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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`TEXAS FARMERS INSURANCE
`COMPANY as subrogee of Jose Prince and
`as subrogee of Jose Nieves
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`v.
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`LOUISIANA-PACIFIC CORPORATION
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`Civil Action No. 4:16-CV-805
`Judge Mazzant
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendant Louisiana-Pacific Corporation’s Motion for
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`Severance (Dkt. #15). After considering the relevant pleadings, the Court finds that the motion
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`should be granted.
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`BACKGROUND
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`Louisiana-Pacific Corporation (“LP”) manufactures TechShield, a radiant barrier product
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`used in home construction. The TechShield product reflects a roof’s radiant heat away from a
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`home’s attic, leading to improved energy efficiencies and lowering utilities costs to homeowners.
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`(Dkt. #15 at p. 2).
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`Both Jose Prince’s (“Prince”) and Jose Nieves’ (“Nieves”) residences had the TechShield
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`product installed, which was designed, manufactured, marketed, sold, and distributed by LP. (Dkt.
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`#7 at ¶ 7). Texas Farmers Insurance Company (“Farmers”) insured both Prince’s and Nieves’ real
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`and personal property (Dkt. #7 at ¶ 6). On May 23, 2015, lightning struck the Nieves residence in
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`Round Rock, Texas. (Dkt. #15 at p. 3). The following day, lightning struck the Prince residence in
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`Frisco, Texas during a different storm. Each house caught fire after being struck by lightning,
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`causing substantial structural damage to the residences as well as damage to personal property.
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`Farmers, in its amended complaint, alleges that the lightning strikes at both homes “energized” the
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 2 of 10 PageID #: 216
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`TechShield radiant barrier (Dkt. #7 at ¶ 9). Farmers also alleges that TechShield caused both fires
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`because TechShield “failed to withstand and safely dissipate the lighting induced current,” and
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`“ignited a fire” in the homes’ attic space that spread by igniting “nearby combustibles” in each
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`attic (Dkt. 16 at pp. 1–2). Therefore, Farmers claims that LP’s “improper design, manufacture, and
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`marketing” of TechShield caused the damage. As a result of the home fires, Farmers, pursuant to
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`insurance policies it had with both Prince and Nieves, paid them $432,477.50 and $468,419.16,
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`respectively (Dkt. # 16 at p. 10).
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`On November 22, 2016, Farmers, as subrogee of both Prince and Nieves, submitted an
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`amended complaint alleging strict products liability, negligence, and breach of implied warranties
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`claims to recoup damages paid to Prince and Nieves as a result of the fires. (Dkt. #16). Farmers
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`joined its claims under Rule 18 of the Federal Rules of Civil Procedure for each independent home
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`fire. On December 23, 2016, LP filed this Motion to Sever the two claims brought by Farmers,
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`arguing that Rule 21 of the Federal Rules makes bringing the claims together unwarranted (Dkt.
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`#15). LP asserts that the Court should sever the two claims because they do not arise out of the
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`same transaction or occurrence; do not share common issues of law or fact; will require different
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`evidence and witnesses to prove them; and joining the claims together would be costly, inefficient,
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`and prejudicial to LP (Dkt. #15). On January 5, 2017, Farmers filed a response (Dkt. #16). On
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`January 12, 2017, LP filed a reply (Dkt. #17).
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`LEGAL STANDARD
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`Rule 21 of the Federal Rules of Civil Procedure establishes that “[o]n motion or on its own,
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`the court may at any time, on just terms, add or drop a party,” and “[t]he court may sever any claim
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`against a party.” Fed. R. Civ. P. 21. Under Rule 21, a “district court has the discretion to sever an
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`action if it is misjoined or might otherwise cause delay or prejudice.” Applewhite v. Reichhold
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`2
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 3 of 10 PageID #: 217
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`Chems., 67 F.3d 571, 574 (5th Cir. 1995). Trial courts have broad discretion to sever issues to be
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`tried before it. Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994). But courts
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`will refuse to sever claims if “the court believes that it only will result in delay, inconvenience, or
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`added expense.” In re Rolls Royce Corp., 775 F.3d 671, 680 n.40 (5th Cir. 2014).
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`Severance under Rule 21 creates “two separate actions or suits where previously there was
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`but one.” U.S. v. O’Neil, 709 F.2d 361, 368 (5th Cir. 1983). When a single claim is severed, it
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`proceeds as a “discrete, independent action, and a court may render a final, appealable judgment
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`in either one of the resulting actions.” Id.
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`ANALYSIS
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`Farmers properly joined the Prince and Nieves claims under Rule 18. Rule 18 is a broad
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`joinder rule, permitting parties to “join as many claims as it has against an opposing party.” Fed.
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`R. Civ. P. 18. However, not all claims properly joined under Rule 18 should proceed to a single
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`trial. The official commentary of Rule 18 states, “it is emphasized that amended Rule 18(a) deals
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`only with pleading,” and “a claim properly joined as a matter of pleading need not be proceeded
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`with together with the other claims if fairness or convenience justifies separate treatment.” Fed. R.
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`Civ. P. 18: Notes of Advisory Committee of Rule – 1966 Amendment. This district recognizes that
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`severance is “especially appropriate” if trying claims together would “confuse the jury due to legal
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`and factual differences.” Delce v. AMTRAK, 180 F.R.D. 316, 319 (E.D. Tex. 1998); see Charles
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`Alan Wright, et al., Fed. Prac. & P. § 1583 (April 2017) (“Rule 18(a) only deals with joinder as an
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`initial matter; the district court may decide that for convenience, or to avoid prejudice, properly
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`joined claims should be treated separately for trial purposes.”). Thus, the Court finds fairness,
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`efficiency, jury confusion, and possibility of prejudice the primary considerations in the severance
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`analysis.
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`3
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 4 of 10 PageID #: 218
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`Farmer argues, and the Court recognizes, that courts often utilize Rule 21 to sever claims
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`improperly joined under Rule 20 of the Federal Rules. However, the Court may utilize Rule 20
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`cases in determining whether to sever properly joined Rule 18 claims. Our district has maintained
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`that Rule 21 “should be read in conjunction with Rules 18, 19 and 20,” because Rule 21 contains
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`no standards governing its operation, but is invoked when violation of another rule occurs.
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`Americans for Fair Patent Use, LLC v. Sprint Nextel Corp., No. 2:10-CV-237-TJW, 2011 WL
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`98279, at *2 (E.D. Tex. Jan. 12, 2011). And the Fifth Circuit has held that “district courts have
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`considerable discretion to deny joinder when it would not facilitate judicial economy and when
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`different witnesses and documentary proof would be required for plaintiff’s claims.” Acevedo v.
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`Allsup’s Convenience Stores, Inc., 600 F.3d 516, 522 (5th Cir. 2010). Therefore, the Court finds
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`it appropriate to utilize Rule 20 cases in determining whether to sever properly joined claims to
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`the extent they weigh on fairness, judicial economy, and prejudice.
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` LP’s motion for severance asserts multiple reasons as to why trying the Prince and Nieves
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`claims together would cause unfairness, inconvenience, and prejudice to LP. First, LP asserts that
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`vastly different witnesses and documentary proof will be necessary to adjudicate each claim. As
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`stated above, this Court has broad discretion to sever claims when “different witnesses and
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`documentary proof would be required” to prove each claim, and severance is appropriate if trying
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`the claims together would “confuse the jury due to legal and factual differences.” Acevedo, 600
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`F.3d at 522; Delce, 180 F.R.D. at 319. District courts in the Fifth Circuit have considered such
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`factors when deciding to grant motions to sever. For example, in Guilbeau, the Western District
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`of Louisiana considered a motion to sever medical patients’ claims against medical product
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`manufacturers. See Guilbeau v. Wyeth, Inc., No. 09-1652, 2010 WL 2216710, at *2 (W.D. La.
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`May 28, 2010). The court concluded that because each plaintiff’s “witnesses would necessarily
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`4
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 5 of 10 PageID #: 219
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`include the individual plaintiff and all of his or her physicians, healthcare facility representatives
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`and fact witnesses, undue prejudice and unnecessary jury confusion would likewise occur.” Id.
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`Here, each claim will likewise involve the individual homeowner, vendors that conducted
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`repairs to each home, investigators who examined each individual home, and other witnesses with
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`knowledge unique to only one of the claims. For example, seven distinct companies have
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`information unique to the Nieves claim, and ten distinct companies have information unique to the
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`Prince claim (Dkt. #15 at p. 8). While Farmers contends that all of the witnesses in these companies
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`are damages witnesses, the damages Prince and Nieves suffered will require entirely different
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`calculations resulting from claim-specific testimony. If tried together, the jury would have to
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`consider extensive testimony regarding the conditions unique to each house before the fire, the
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`resulting structural damage unique to each house, property damage unique to each claim, as well
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`as living expenses unique to both Prince and Nieves, which is likely to cause confusion. Guilbeau,
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`2010 WL 2216710, at *2. Additional witnesses likely to testify in this case include: the Round
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`Rock and Frisco Fire Departments, the cause and origin investigators who examined each house,
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`the claims adjusters for both Prince and Nieves, as well as Prince and Nieves themselves. These
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`witnesses will only be able to testify regarding the specific fire in which they were involved. This
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`will result in even more technical, claim-specific testimony that the jury will have to distinguish
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`between each claim throughout. Farmers asserts that the cause and origin expert’s testimony will
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`include “common indicators” at both fire scenes unique to radiant barrier fires generally. However,
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`Farmers must still use its witnesses and experts to prove that TechShield was the cause in fact of
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`each individual fire to prevail on their strict products liability and negligence claims. See Gill v.
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`Ethicon Inc., No. 00-2042, 2001 WL 36649468 (W.D. La. Aug. 1, 2001) (granting severance
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`because other factors besides defendant’s product may have caused each individual injury).
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`5
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 6 of 10 PageID #: 220
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`Finally, the houses were constructed in different areas of Texas and nearly a decade apart from
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`one another. This means, as LP asserts, that the parties must call different witnesses to discuss
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`issues related to the building materials used in each house, and what relation those materials may
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`have to the cause of each fire.
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`Farmers does provide witnesses that will be able to testify regarding both fires: a single
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`engineering expert who investigated both fires, and current and former employees of LP. However,
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`as LP correctly states, this witness testimony is likely to differ for each claim. Under circumstances
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`where some “witnesses may be common,” courts routinely sever claims when “their testimony
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`will differ between the claims.” Jones v. Demantic Corp., No. 3:13-cv-1334-O, WL 12129709, at
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`*3 (N.D. Tex. Nov. 8, 2013). Because each claim requires a fact-intensive analysis, especially
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`regarding the cause in fact of the fires and the resulting damages at each house, each witness will
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`have to testify about causation and damages as they relate to the specific fire of which they have
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`knowledge.
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`In addition to the varying witnesses that will necessarily have to testify regarding each
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`claim, a large amount of documentary evidence will be unique to each claim. For example, fire
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`department incident reports, lightning reports, insurance policies, blueprints, and photographic
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`evidence will be unique to each fire and to each house (Dkt. #15 at p. 9). While Farmers argues
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`that they will be seeking and relying on the same evidence to prove their strict products liability
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`claims, the only source of that evidence is LP itself. As other federal courts have held in products
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`liability cases, “while much of the [defendant]-related witnesses and documents . . . will overlap
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`between plaintiff’s claims, none of the witnesses and documents related to the plaintiff’s
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`individualized circumstances will overlap.” Boles v. Eli Lilly and Co., No. 1:15-cv-00351-JMS-
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`DKL, 2015 WL 6132478, at *9 (S.D. Ind. Oct. 19, 2015). Presenting “varied facts” for each claim
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`6
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 7 of 10 PageID #: 221
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`will “cause confusion and outweigh any benefit received from the judicial economy of solving a
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`few common questions.” McGrew v. Howmedica Osteonics Corp., No. 14-cv-430-SMY-PMF,
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`2015 WL 159367, at *3 (S.D. Ill. Jan. 13, 2015).
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`Prejudice considerations also weigh in favor of severance. When determining whether to
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`sever claims, district courts in the Fifth Circuit have found prejudice when a single defendant must
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`defend against “multiple claims, with different factual scenarios, in one trial.” See Rohr v. Metro
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`Ins. & Cas. Co., No. 06-10511, 2007 WL 163037 (E.D. La. Jan. 17, 2007) (finding defendant
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`would be prejudiced if claims tried together, because plaintiff must prove “the particulars” of each
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`claim, “the condition of the property before” the accident, “the cause of the damage,” “and the
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`extent of the damage”). As in Rohr, LP would be prejudiced if it were forced to defend against
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`both of Farmers claims together. Defending against these two claims in one trial is prejudicial to
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`LP, because Farmers must prove “the particulars” of each claim. Id. at *3. This includes the
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`condition of the houses before the accidents, the causes of the fires, and the extent of the resulting
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`damages incurred by Prince and Nieves. The court in Rohr also noted that any “conservation of
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`judicial resources” are “outweighed by the burden imposed” on the defendant because “each
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`property owner is uniquely situated.” Id. Here, Prince and Nieves are “uniquely situated,” such
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`that the burden imposed on LP in simultaneously defending against each claim outweighs any
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`conservation of judicial resources. See id. Furthermore, Farmers admits that they may not use “the
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`cause of the fire at the Prince house to demonstrate the cause of the fire at the Nieves house” (Dkt.
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`#16 at p. 12). But if the jury must evaluate whether TechShield was the cause of the Prince fire
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`without taking into consideration that the Nieves house also had TechShield and caught fire, it will
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`further confuse the jury.
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`7
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 8 of 10 PageID #: 222
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`Furthermore, Farmers’ claims are partly based on how TechShield interacted with “nearby
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`combustibles” at each house. This provides another wrinkle in Farmers’ causation argument that
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`must be analyzed on a claim-specific basis, which prejudices LP by having to defend against
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`separate, particularized causation arguments in a single trial. Rohr, 2007 WL 163037 at *3. If one
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`claim’s causation argument is stronger than the other, the other claim may receive an improper
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`benefit by association with the stronger claim. Also, TechShield was installed in the Nieves house
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`before 2010, when LP first received notice of a possible connection between lightning and
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`TechShield, which could also be confusing and prejudicial. This is because, as Farmers alleges in
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`their complaint, whether LP “knew or should have known” of alleged defects in TechShield is a
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`key issue in the case (Dkt. #7 at p. 5; Dkt. #16 at p. 10). Defending against another issue that is
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`specific and particularized to each claim in one trial adds to the prejudice against LP. Because the
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`TechShield in Nieves’ house was installed before LP was aware of a connection between
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`TechShield and lightning, LP must put on unique defenses to each claim regarding whether they
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`“knew or should have known” of defects in TechShield. Farmers’ argument that LP “knew or
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`should have known” of a defect will be stronger with regard to the Prince claim, because the
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`TechShield in Prince’s house was manufactured after LP received notice.
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`In sum, there are multiple issues that are unique to each claim Farmers brings, especially
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`as it pertains to causation, damages, and whether LP “knew or should have known” of defects in
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`TechShield. Defending against multiple issues that are unique to each claim in a single trial setting
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`is both prejudicial to LP, and confusing to the jury. Therefore, principles of fairness and equity
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`weigh in favor of severance.
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`Farmers alleges that severing the claims would cause more prejudice to them as opposed
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`to LP, because they would be “forced to litigate these common issues of law and fact on multiple
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`8
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 9 of 10 PageID #: 223
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`fronts” (Dkt. #16 at p. 14). They also claim that “increased costs and inefficiencies” would result
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`from “multiple lawsuits spread out among different federal courts in the State of Texas,” due to
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`discovery issues, and the possibility of “inconsistent rulings and adjudication of claims.” (Dkt. #16
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`at p. 11). However, as discussed above, only one source of discovery holds the evidence that
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`Farmers alleges would be burdensome to conduct twice, and that is LP itself. This is not enough
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`to deny severance. Boles, 2015 WL 6132478, at *9; McGrew, 2015 WL 159367, at *3. Also, this
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`case is unlike other severance cases where the defendant seeks to sever multiple claims among
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`different parties that would result in a number of new cases spread throughout the country. If such
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`were the case, Farmers’ judicial efficiency arguments would have more merit. See Knapper v.
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`Safety Kleen Systems, Inc., No. 9:08-CV-84-TH, 2009 WL 909479 (E.D. Tex. Apr. 3, 2009)
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`(denying severance where severance would result in suits against eight separate defendants that
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`would take place in six different district courts). Instead, this is merely severance of a single claim.
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`Furthermore, because LP has not filed a motion to transfer venue, and because adjudicating
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`products liability and negligence claims is inherently fact specific, Farmers’ fears of inconsistent
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`rulings and adjudication of claims are premature.
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`CONCLUSION
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`The Court finds severance under Rule 21 appropriate because trying Farmers’ claims
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`together would confuse the jury and cause prejudice to LP. The prejudice and confusion outweighs
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`the relatively minor benefit of trying the two claims together for judicial economy.
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`It is therefore ORDERED that LP’s Motion for Severance (Dkt. #15) is hereby
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`GRANTED and that the claims pertaining to subrogor Jose Prince and subrogor Jose Nieves be
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`SEVERED into separate causes of action. Plaintiff shall pay the filing fee for this case within
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`9
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`Case 4:16-cv-00805-ALM Document 20 Filed 06/06/17 Page 10 of 10 PageID #: 224
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`fourteen (14) days of this order issuing to avoid having the severed cause of action dismissed with
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`prejudice.
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`10
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