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Wallace v. Novartis Pharms. Corp.

United States District Court, M.D. Pennsylvania

November 27, 2013

JOHN WALLACE, substituted on behalf of Linda Wallace, deceased, Plaintiff
v.
NOVARTIS PHARMACEUTICALS CORP., Defendant

For John Wallace, substituted on behalf of Linda Wallace, deceased, Plaintiff: Daniel A Osborn, LEAD ATTORNEY, Osborn Law PC, New York, NY; Philip J. Miller, LEAD ATTORNEY, Osborn Law, P.C., New York, NY; P. Timothy Kelly, Mattise & Kelly PC, Scranton, PA.

For Novartis Pharmaceuticals Corporation, Defendant: Buffy J. Mims, LEAD ATTORNEY, PRO HAC VICE, Katharine Latimer, Neil S. Bromberg, Philip M Busman, LEAD ATTORNEYS, Hollingsworth LLP, Washington, DC; Joe Gregory Hollingsworth, LEAD ATTORNEY, Spriggs & Hollingsworth, Washington, DC; Matthew J. Junk, Deasey, Mahoney, Valentini & North LTD., Philadelphia, PA.

OPINION

Page 378

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge.

I. Introduction

Before the Court is Defendant's Motion to Dismiss (Doc. 67). For the reasons set

Page 379

forth below, the Court will grant Defendant's motion.

II. Background

On January 18, 2006, Linda Wallace (" Mrs. Wallace" ) filed this personal injury action against Defendant Novartis Pharmaceuticals Corporation (" Novartis" ), arising from her use of Aredia and Zometa to treat her breast cancer. (Complaint (" Compl." ), Doc. 1, ¶ 13). She claimed that as a result of taking Aredia and Zometa, she developed osteonecrosis of the jaw and brought this suit in federal court on diversity grounds. ( Id. at ¶ ¶ 5, 14).

Mrs. Wallace died on February 14, 2007. (Suggestion of Death, Doc. 68-1, Ex. 1). Former counsel, Russel Beatie, filed the Suggestion of Death on October 26, 2007.[1] ( Id. ). In the Suggestion of Death, he stated that " John Wallace, the personal representative of Linda Wallace's estate, will be substituted in this action so that Linda Wallace's claims survive and the action on her behalf may proceed." ( Id. ). On January 8, 2008, Attorney Beatie filed a Motion to Substitute (Doc. 68-2, Ex. 2), which has been reproduced below in its entirety:

The personal representative of Linda Wallace moves the Court to substitute him as Plaintiff in this civil action as follows:
Linda Wallace:
1. Linda Wallace passed away on February 14, 2007. A Suggestion Of Death was filed on October 26, 2007 (DE 745).
2. Under Pennsylvania law, the claim of Linda Wallace survives to her personal representative.
3. Pursuant to Ms. Wallace's Last Will and Testament, her husband, John Wallace, has been named the Executor of Ms. Wallace's estate.
4. Based on the foregoing, the Court should enter an order substituting John Wallace as the personal representative of the Estate of Linda Wallace, deceased, in place and instead of Linda Wallace.

The Multi-District Litigation (" MDL" ) Court granted the Motion to Substitute. (Doc. 68-3, Ex. 3). Also, as late as February 16, 2011, John Wallace confirmed that he was the " formal personal representative of [Mrs. Wallace's] estate." (J. Wallace Dep., Doc. 68-4, at 13:10-12). He, however, did not receive Letters Testamentary from the Commonwealth of Pennsylvania until May 2, 2012. (Petition for Grant of Letters, Doc. 68-5).

The Case Management Order (" CMO" ) from the MDL Court set forth detailed requirements when filing Suggestions of Death and Motions to Substitute. It stated, in pertinent part:

A. Suggestion of Death. Within sixty (60)[2] days of entry of this Order or the death of a plaintiff, whichever is later, plaintiff's counsel shall file a " Suggestion of Death" that identifies the plaintiff and describes the time, date, and circumstances of the plaintiff's death.
B. Timing of Motion for Substitution. The ninety (90) day time period for filing a Motion for Substitution, as required by

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Fed.R.Civ.P. 25(a), will commence upon the filing of a Suggestion of Death or upon the passage of 30 days from the entry of this Order, whichever is later.
C. Contents of Motion for Substitution.
1. The Motion for Substitution shall identify the proposed substitute plaintiff by name and shall describe why the proposed substitute plaintiff is a " proper" party and why the claim has not been extinguished under the applicable state survivorship statute or applicable state common law.
2. In the event that applicable state law requires the opening of an estate and the appointment of a personal representative to pursue the claims of a deceased plaintiff, plaintiff's counsel shall initiate or cause to be initiated proceedings to open an estate and/or

Page 381

obtain the appointment of a personal representative for plaintiff within thirty (30) days of the plaintiff's death or thirty (30) days from entry of this Order, whichever is later.
. . .
3. Plaintiff's failure to comply with the provisions of this Section, including the requirement that an Order appointing the substitute plaintiff as the decedent's personal representative be filed prior to remand where the Court grants a provisional substitution, will entitle Defendant to request a dismissal of plaintiff's action with prejudice in accord with Fed.R.Civ.P. 25(a).

(CMO, Doc. 68-6, Section V.A-C.).

On August 5, 2013, the Court held a Daubert hearing on Plaintiff's proposed experts. At the close of the hearing, counsel for Novartis orally informed the Court that Defendant would soon file a motion to abate the action. On August 9, 2013, Novartis filed its Motion to Dismiss (Doc. 67), requesting various forms of relief, including a Petition for Abatement under 20 Pa. Cons. Stat. § 3373, a Motion to Vacate the MDL Order which had granted the defective and untimely Motion to Substitute entered in 2007, and a Motion to Dismiss under both Fed.R.Civ.P. 25(a) and the CMO.

III. Analysis

a. Failure to Comply with the MDL Court's CMO

Rule 25(a) and the CMO govern the procedures required to substitute a party upon the death of a plaintiff. The specific provisions of the CMO at issue here are reproduced below:

A. Suggestion of Death. Within sixty (60) days of entry of this Order or the death of a plaintiff, whichever is later, plaintiff's counsel shall file a " Suggestion of Death" that identifies the plaintiff and describes the time, date, and circumstances of the plaintiff's death.
B. Timing of Motion for Substitution. The ninety (90) day time period for filing a Motion for Substitution, as required by Fed.R.Civ.P. 25(a), will commence upon the filing of a Suggestion of Death or upon the passage of 30 days from the entry of this Order, whichever is later.
C. Contents of Motion for Substitution.
1. The Motion for Substitution shall identify the proposed substitute plaintiff by name and shall describe why the proposed substitute plaintiff is a " proper" party and why the claim has not been extinguished under the applicable state ...

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