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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

May 31, 2016

C.R. Bard, Inc., et al., Defendants. This Order Relates to: Pamela Noterman, Plaintiff,



         Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (“Bard”) filed a motion to dismiss Plaintiff Pamela Noterman’s complaint. Doc. 1072. Plaintiff failed to respond. During the March 31, 2016 case management conference, the Court excused Plaintiff’s failure to respond to Bard’s motion, and allowed Plaintiff leave to file a motion to amend her complaint. Plaintiff filed her motion, which Bard opposed. Docs. 1324; 1475. Plaintiff did not file a reply. For the following reasons, the Court will deny Plaintiff’s motion to amend and grant Bard’s motion to dismiss.

         I. Background.

         On November 5, 2009, Plaintiff Pamela Noterman was implanted with a Bard inferior vena cava filter. Doc. 1324-2 at 16, ¶¶ 51-52. On February 16, 2011, Plaintiff presented to a medical facility with chest pain, where she learned that the filter had fractured. Id. at ¶ 53. The filter was subsequently removed. Id. at ¶¶ 54-55. Plaintiff died on May 6, 2014. Doc. 1475-1 at 2.

         On February 13, 2015, Plaintiff’s counsel filed this lawsuit in Florida state court. Doc. 1324-2 at 2. Bard removed the case to the Middle District of Florida, and the U.S. Judicial Panel on Multidistrict Litigation transferred the case to this Court for inclusion in this MDL. See Docs. 1 (notice of removal), 10 (conditional transfer order), in Noterman v. C.R. Bard, Inc., No. 2:15-cv-01714-DGC (M.D. Fla. July 1, 2015). Bard became aware of Plaintiff’s death when it received her plaintiff profile form on February 15, 2016. Doc. 1475 at 3. On March 11, 2016, Bard filed its motion to dismiss. See Doc. 1072. On April 4, 2016, Plaintiff’s counsel requested leave to amend Plaintiff’s complaint to substitute her husband and personal representative, John Noterman, for her. See Doc. 1324.

         II. Capacity to Sue.

         “‘Only a real party in interest has the capacity to bring a lawsuit.’” In re Engle Cases, No. 3:09-cv-10000-J-32JBT, 2013 WL 8115442, at *2 (M.D. Fla. Jan. 22, 2013) (“In re Engle Cases I”), aff’d, 767 F.3d 1082 (11th Cir. 2014) (quoting Tennyson v. ASCAP, 477 F. App’x 608, 610 (11th Cir. 2012) (unpublished) (citing Fed.R.Civ.P. 17(a), (b)).[1] “The capacity doctrine relates to the issue of a party’s personal right to litigate in a federal court.” Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666, 670 (11th Cir. 1991), abrogated on other grounds by Saxton v. ACF Indus., Inc., 254 F.3d 959 (11th Cir. 2001) (quotation marks and citation omitted). “‘[A] party must have a legal existence as a prerequisite to having the capacity to sue or be sued.’” In re Engle Cases I, 2013 WL 8115442, at *2 (quoting Adelsberger v. United States, 58 Fed.Cl. 616, 618 (Fed. Cl. 2003)). “Indeed, a deceased individual cannot be a party to a lawsuit.” Id. (citing Xtra Super Food Ctr. v. Carmona, 516 So.2d 300, 301 (Fla. Dist. Ct. App. 1987)); see also Adelsberger, 58 Fed. C1. at 618 (collecting cases). A lawsuit filed in the name of a deceased individual is therefore a nullity, which presents a jurisdictional defect that cannot be saved by substitution or amendment. In re Engle Cases I, 2013 WL 8115442, at *2, 4.

         In In re Engle Cases I, a lawyer represented thousands of individual plaintiffs in suits against a number of tobacco companies. Id. at *1. Among those cases were 521 cases where the complaint had been filed after the plaintiff had already died, but the complaint alleged personal injury claims. Id. After repeated attempts to cull the docket of cases with non-viable claims, the court issued a questionnaire to be filled out under oath to determine which cases had viable claims. Id. Upon reviewing the questionnaires and learning of these cases, defendants moved for dismissal of the 521 cases with predeceased plaintiffs. Id. Plaintiffs sought leave to amend the complaints to substitute parties and allege wrongful death claims under Rules 15 and 17 of the Federal Rules of Civil Procedure, arguing that the error was simply “a pleading deficiency related to capacity of the plaintiff, rather than a jurisdictional defect.” Id.

         The court found that the “521 personal injury actions not only name parties without capacity, but allege personal injury claims that abated when the smokers died.” Id. at *3 (citing Fla. Stat. § 768.20 (“When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.”)). The court acknowledged

that under certain circumstances when the proper cause of action is alleged but the plaintiff lacks capacity, or where the plaintiff dies after the complaint has been filed, substitution and amendment may be proper under Rules 17, 25, or 15. See Fed. R. Civ. P. 15, 17, 25. However, such circumstances do not exist here. In these cases, the plaintiffs died before counsel filed suit. Further, the complaints allege a personal injury cause of action that was not viable in the first place. Regardless of the reasons and authorization for these filings, a personal injury suit cannot be commenced by a dead person and thus, these claims are nullities that must be dismissed. As such, no substitution or amendment can save these claims.

Id. at *4 (emphasis in original). The court dismissed the 521 cases without prejudice. Id. at *6. The Eleventh Circuit affirmed the district court’s order, but did so without deciding “whether a personal injury claim brought on behalf of a deceased individual has any legal effect, such that it can later be amended.” In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir. 2014) (“In re Engle Cases II”).

         Plaintiff’s motion is supported by few facts. And the few facts provided do not adequately explain why counsel filed a personal injury complaint on behalf of a Plaintiff who had died nine months before the complaint was filed. Plaintiff’s counsel explains that “[i]n an abundance of caution to protect plaintiffs’ [sic] Statute of Limitations, an action was commended [sic] on or about February 13th, 2015, by the filing of a Complaint.” Doc. 1324 at 4, ¶ 3. Plaintiff’s counsel states that “[t]hereafter Parker Waichman LLP was notified that plaintiff-decedent died on May 6, 2014.” Id. at ¶ 4. Plaintiff’s counsel does not explain how he filed a complaint without first speaking with his client. Nor does he explain why he had not communicated with his client during the nine-month period between her death and the filing of the complaint. Nor does he explain why he did not take immediate action to correct the deficient pleading upon learning of her death. Plaintiff’s counsel summarily concludes that “Plaintiff should be allowed to amend the original complaint in the above-captioned case herein to substitute and add husband of plaintiff-decedent Pam W. Noterman, John Noterman as Personal Representative of the Estate of Pam W. Noterman, in place of and stead of Pamela Noterman.” Id. at ¶ 5.

         Plaintiff’s motion is supported by virtually no legal authority.[2] The solitary authority Plaintiff cites is “Rule 15(2)” of the Federal Rules of Civil Procedure. Doc. 1324 at 3-4, ¶ 3. Presumably, Plaintiff is referencing Rule 15(a)(2), which allows a party to amend her complaint with the opposing party’s consent or with leave of the court. But Plaintiff cites no additional legal authority to explain why the Court should grant Plaintiff leave under Rule 15(a)(2) to file an amended complaint. Plaintiff’s counsel makes no genuine attempt to counter Bard’s legal arguments despite having had two opportunities to do so.[3] Nonetheless, the Court will address the arguments that can be inferred from Plaintiff’s motion to amend, which, as discussed above, is largely devoid of substance.

         Although the motion to amend only references Rule 15, Plaintiff’s request primarily implicates Rule 17 of the Federal Rules of Civil Procedure. A plaintiff’s request to substitute the real party in interest invokes Rule 17(a)(1), which requires that an action be prosecuted in the name of the real party in interest, and Rule 17(a)(3), which permits substitution of the real party in interest in certain circumstances. “[M]ost courts have interpreted . . . Rule 17(a) as being applicable only when the plaintiff brought the action [in the name of the wrong party] as a result of an understandable mistake, because the determination of the correct party to bring the action is difficult.” In re Engle Cases II, 767 F.3d at 1109 (alteration in original; citations omitted); see also Fed. R. Civ. P. 17 (Advisory Comm. Notes to 1966 Amend.). Substitution is not appropriate in this case. Plaintiff’s counsel could have readily determined the correct party to bring this action had Plaintiff’s counsel investigated the basic facts underlying Plaintiff’s claims prior to ...

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