As we descend toward dotage, we find ourselves more and more often telling jolly stories that we realize, halfway-through and courtesy of the strained expressions on the poor listener’s face, we have told before. When the Drug and Device Law toddlers were underfoot, that wasn’t much of a problem; they loved hearing the same stuff repeated endlessly. After the punch-line, they would erupt in laughter, then tug on our sleeve and shout “Again!” Eventually, there would be tears or ice cream. Or both.
Strangely, we have yet to encounter such a response from clients, judges, or you, our readers. As the Talking Heads sang in “Psycho Killer,” “Say something once/why say it again?” Novelty is all. Repetition is tiresome.
We won’t ask you to stop us if you’ve heard this one before, because we know that you have (here, here, and here, for example). A cancer patient was treated with Aredia/Zometa, which, it is claimed, caused the patient to suffer from osteonecrosis of the jaw (ONJ). A lawsuit is filed, and the patient subsequently dies from the cancer. That is sad enough. Then the plaintiff lawyers (perhaps more than one set of lawyers) do not file the requisite paperwork to substitute in a new party. Court orders and federal rules are thereby violated, a statute of limitations runs out, and the case is dismissed. Even sadder.
Or not so much if you happen to be the defendant or wily defense lawyers.
It happened again last week, in Wallace v. Novartis Pharmaceuticals Corp., 3:12-CV-1905 (M.D. Pa. Nov. 27, 2013). (The slip opinion is available here.) The plaintiff, Mrs. Wallace, filed a lawsuit claiming that as a result of taking Aredia and Zometa, she developed ONJ. Mrs. Wallace died on February 14, 2007. Former counsel filed the Suggestion of Death on October 26, 2007. That Suggestion of Death represented that Mrs. Wallace’s husband, John, as personal representative of Mrs. Wallace’s estate, would be substituted in to pursue the claims. The Motion to Substitute was filed on January 8, 2008, and it said that John Wallace had been named as executor of his wife’s estate. The MDL Court granted the Motion to Substitute. Years went by. Mr. Wallace confirmed in 2011 that he was the formal representative of the estate. But, in actual fact, he did not receive Letters Testamentary from the Commonwealth of Pennsylvania until May 2, 2012.
That timeline might seem dreary and dull, but it means the end of a lawsuit. Federal Rule of Civil Procedure 25(a) and the Aredia-Zometa Case Management Order (CMO) set forth specific requirements for substituting in a party after the original party died. Novartis asked the M.D. Pa. court to vacate the MDL court's earlier order granting the motion to substitute. That might seem like a long-shot, but (a) it happened before in the Aredia-Zometa litigation, and (b) the facts were pretty egregious here - or at least the M.D. Pa. court thought so.
According to the M.D. Pa. court, the plaintiff here “failed to meet virtually every requirement” for substituting a party after death. The plaintiff’s counsel did not file a Suggestion of Death until well past the deadline. The Motion to Substitute was also untimely. Further, the Motion to Substitute did not “describe why the proposed substitute plaintiff is a ‘proper’ party and why the claim has not been extinguished under the applicable state survivorship statute.” Finally, John Wallace did not obtain Letters Testamentary to Mrs. Wallace’s estate until more than five years after Linda Wallace’s death. These failures warrant dismissal under Fed. R. Civ. P. 25(a).
The plaintiff lawyer, understandably, looked for ways out of this procedural trap. First, the plaintiff lawyer argued that even though Mrs. Wallace’s estate was not probated until May 2, 2012, John Wallace was a “successor” under Rule 25(a)(1). Nice try. But the court determined that Pennsylvania law, properly interpreted, means that John Wallace was not a personal representative of Mrs. Wallace’s estate.
So now all that was left for the plaintiff lawyer was to furnish excuses for not complying with the requirements under Rule 25(a), the CMO, and Pennsylvania law. The most obvious excuse is that the plaintiff lawyer (and remember this lawyer succeeded an earlier lawyer) was "not a wills and estate lawyer." Well, that’s just too bad. That's not us saying that -- that is pretty much what the court's rejoinder was. The plaintiff lawyer next argued that Novartis waived its right to assert Rule 25(a) noncompliance because it knew as early as 2008 that John Wallace was not the proper representative of the estate. But there was no evidence to support that argument, and some that refuted it. For example, John Wallace testified in a 2011 deposition that he was the formal representative of the estate.
What does this mean? Even cutting slack for the late filing of the Suggestion of Death in October 2007, the one-year statute of limitation expired in October 2008. Because John Wallace did not obtain Letters Testamentary until 2012, the case is over. Maybe there is some space for judicial lenience, except there were no good excuses, the court thought there had been actual misrepresentations, and earlier Aredia-Zometa courts had dismissed similar cases. Moreover, this particular plaintiff lawyer had a "history of dilatoriness." The court observed that the plaintiff lawyer had “never timely filed any brief in this Court and has instead requested extension for every deadline imposed on him.” Both the MDL and M.D. Pa courts had “provided several warnings” to this same lawyer “about his lack of compliance with the CMO, Rule 25(a) and the Local Rules.” The plaintiff lawyer alluded to his “substantial caseload,” but he “knew what his caseload was and should have known what resources diligent pursuant of these cases would require of him. His decision to take on a high-volume and apparently unmanageable caseload must have been known to him, and to the extent it was knowing, it was willful.” Ouch.
As if to roll up all the problems in one, this same plaintiff lawyer's firm had been involved in five (!) Aredia-Zometa cases where party substitutions after death had not been accomplished to the satisfaction of the court. Quintuple ouch.
As you might expect, the plaintiff lawyer asserted that the defendant had not been prejudiced by this substitution-timeline-kerfuffel. Corporations are never prejudiced, right? Wrong. Novartis “had to bear significant costs in litigating this particular case.” For example, the court had conducted a full day Daubert hearing. Novartis filed briefs in opposition to each of Plaintiff’s six experts, as well as the pending motion to dismiss and supporting brief. In short, “Novartis has been prejudiced by being exposed to prolonged and unnecessary litigation.” Amen.
For some reason, we expect opportunities to say Amen again.
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Thanks to our friends at Hollingsworth LLP for bringing this case to our attention.