United States District Court, E.D. Pennsylvania
IN RE ZOSTAVAX (ZOSTER VACCINE LIVE) PRODUCTS LIABILITY LITIGATION
MERCK & CO., INC., et al. THIS DOCUMENT RELATES TO DONALD THERING, et al.
MEMORANDUM IN SUPPORT OF PRETRIAL ORDER NO.
Thering brings this diversity action as part of MDL 2848
against defendants Merck & Co., Inc. and Merck Sharp
& Dohme Corp. (collectively "Merck") seeking
damages for injuries allegedly suffered from Zostavax, a
2, 2019, the court issued Pretrial Order 172 dismissing the
complaint in this action along with over 100 other complaints
in MDL 2848 for failure to comply with Rules 8(a) and 9(b) of
the Federal Rules of Civil Procedure. Pretrial Order 172 also
provided that any action in which an amended complaint was
not filed within 30 days would be dismissed with prejudice.
Donald Thering died on or about May 17, 2018. His attorney
filed a motion for leave to amend the pleadings pursuant to
Rule 15(a)(2) to "substitute the proper party for the
Plaintiff - Plaintiff's son, successor, and/or
representative Peter Thering" on May 21,
2019. On May 28, 2019, before defendants had
responded and before the court had ruled on the Rule 15(a)
motion, the attorney filed the proposed amended complaint.
Presumably, the amended complaint was filed to comply with
Pretrial Order 172 and prevent dismissal of the action.
oppose plaintiff's Rule 15(a) motion on the grounds that
the proposed substitution is improper under New York's
survival statute and the proposed amendment would be futile.
Defendants also seek dismissal of the filed amended complaint
for the same reasons. The parties agree that New York law
25(a) of the Federal Rules of Civil Procedure provides that
the court may order substitution of the proper party
"if a party dies and the claim is not
extinguished." Fed. R. Civ. Pro. 25(a)(2). It further
provides that "a motion for substitution may be made by
any party or by the decedent's successor or
15(a)(2) permits plaintiffs to amend their pleadings with
leave of court, which courts should freely give "when
justice so requires." Fed. R. Civ. Pro. 15(a)(2).
However, a court will not grant leave to amend where the
amendment would be futile. Foman v. Davis, 371 U.S.
178, 182 (1962) .
York's survival statute provides that "[n]o cause of
action for injury to person or property is lost because of
the death of the person in whose favor the cause of action
existed. For any injury an action may be brought or continued
by the personal representative of the decedent. . . ."
N.Y. E.P.T.L. § 11-3.2. However, a party may not
continue the cause of action under New York law merely
because he is the beneficiary of the decedent's estate.
As the New York Court of Appeals has explained,
It is well settled that a beneficiary, absent extraordinary
circumstances such as when a fiduciary unreasonably refuses
to act . . . cannot act on behalf of the estate or exercise
the fiduciary's rights with respect to estate property,
even if beneficiary and fiduciary are one and the same
Jackson v. Ressner, 206 A.D.2d 123, 127 (N.Y. 1994).
Instead, the party must be appointed as the representative of
the descendant's estate in order to bring a claim on the
decedent's l behalf. Stallsworth v. Stallsworth,
138 A.D.3d 1102, 1103 (N.Y.App.Div. 2016). A party who is not
the appointed i i representative lacks standing to continue
the action. See Schoeps v. Andrew Lloyd Webber Art
Found., 66 A.D.3d 137, 137 (N.Y. 2009).
Thering cannot maintain that he is the appointed
representative of his deceased father's estate simply by
claiming to be his son or beneficiary. He has not provided
proof that he was appointed by a New York court as executor
or personal representative of his father's estate. As a
mere beneficiary, he "cannot act on behalf of" his
father's estate. See Jackson v. Kessner, 206
A.D.2d 123, 127 (N.Y. 1994). As pleaded in the proposed
amended complaint, he does not have standing to continue this
action on behalf of his father under New York law. Thus, the
proposed substitution would be futile.
court will defer ruling on the pending motion for 30 days. If
during that period Peter Thering files proper documentation
that he is the personal representative of Donald
Thering's estate under New York law, the motion to for
leave to amend will be granted. If he fails to do so, the
motion will be denied and the complaint will be dismissed