The opinion of the court was delivered by: VAN SICKLE
BRUCE M. VAN SICKLE, UNITED STATES DISTRICT JUDGE
Plaintiffs claim the negligent manufacture of chemicals at a plant owned and operated by Hercules and later Vertac injured them. Plaintiffs assert that Vertac was an independent contractor of Dow, which is therefore liable for some of their damages. Plaintiffs assert claims under federal statutes 42 U.S.C. §§ 9601, 9607(a), and 9613(b). Jurisdiction over the subject matter is therefore gained pursuant to 28 U.S.C. § 1331.
Dow, feeling its case would be prejudiced by defending with Hercules and Vertac, filed a motion for severance on June, 29, 1989. Plaintiffs filed a response in opposition to the motion on July 13, 1989, three days after the eleven day time for response described in Rule 20(b). See Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas. When computing the time allowed to respond, Saturdays, Sundays, and legal holidays will be included when the period of time prescribed is eleven days or more. Fed. R. Civ. P. 6(a). Plaintiffs did not request an extension to lengthen the time for response. In its motion, Dow asks that
this court enter an order directing that all of defendants' claims against Dow be resolved in a separate trial from plaintiffs' claims against the other defendants . . . if this Court should determine that it is inappropriate to sever plaintiffs' claims against Dow at this time, Dow requests that the Court order that a limited trial be held to resolve plaintiffs' allegation that Dow is vicariously liable for the acts or omissions of Vertac and Dow's defenses to that allegation.
Dow filed a "Reply Memorandum" on August 1, 1989 "in order to demonstrate to the Court the extent to which plaintiffs misrepresent both law and fact. . . ."
Plaintiffs in this case are approximately 110 individuals alleging personal injury or property damage. The plaintiffs allege that their injuries were caused by chemicals used and produced at a plant in Jacksonville, Arkansas. This plant was owned first by Hercules Inc. ("Hercules"), and later leased and then sold to the Vertac Chemical Corporation ("Vertac"). When Hercules purchased the Jacksonville facility in 1961, the plant was manufacturing phenoxy herbicides, a practice Hercules continued. The phenoxy herbicides produced were principally 2,4-dichlorophenoxyacetic acid (2,4,-D), 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) and 2,4,5-trichlorophenoxypropionic acid (2,4,5-TP), also known as Silvex. Hercules also began the manufacture of the defoliant Agent Orange at the Jacksonville plant in the mid-1960s. In 1971, Hercules leased the plant to Transvaal, which reorganized in 1976 into Vertac.
During the 1970s, Vertac manufactured several chemical products which Dow purchased. Whether Vertac was acting as an independent contractor for Dow or whether Dow was merely purchasing a finished product from Vertac is a central issue in this case. Dow provided the chemicals to Vertac that it used to manufacture 2,4,-D, 2,4,5-T, and 2,4,5-TP. This Court has previously issued a motion denying Dow's request for summary judgment as to whether Vertac was acting as Dow's independent contractor. Dow now claims that its interests would be unfairly prejudiced if it were forced to defend with Hercules and Vertac. Dow has filed a motion for severance which is currently before the Court.
1) Whether Dow's motion should be treated as one for severance under Rule 21 or one for separate trial under Rule 42(b).
2) Whether an order for separate trials is in the discretion of the Court.
3) Standard for granting a separate trial:
A) Whether Dow would be unduly prejudiced by defending its case with Hercules and Vertac.
B) Whether trying the case against Dow and the other defendants would ...