Noterman v. C R Bard Incorporated et al

Filing 17

ORDER granting with prejudice Motion to Dismiss (doc. 1072, in MDL-2641), FURTHER ORDERED denying Motion (doc. 1324, in MDL-2641) to Amend. Signed by Judge David G Campbell on 5/31/16. (MDL-15-2641)(MAP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: BARD IVC FILTERS PRODUCTS
LIABILITY LITIGATION

MDL No. 2641

10
11
12

This Order Relates to:
No. CV-15-01714-PHX-DGC

Pamela Noterman,
Plaintiff,

13
14
15

ORDER

v.
C.R. Bard, Inc., et al.,
Defendants.

16
17
18

Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (“Bard”) filed a

19

motion to dismiss Plaintiff Pamela Noterman’s complaint. Doc. 1072. Plaintiff failed to

20

respond. During the March 31, 2016 case management conference, the Court excused

21

Plaintiff’s failure to respond to Bard’s motion, and allowed Plaintiff leave to file a motion

22

to amend her complaint. Plaintiff filed her motion, which Bard opposed. Docs. 1324;

23

1475. Plaintiff did not file a reply. For the following reasons, the Court will deny

24

Plaintiff’s motion to amend and grant Bard’s motion to dismiss.

25

I.

Background.

26

On November 5, 2009, Plaintiff Pamela Noterman was implanted with a Bard

27

inferior vena cava filter. Doc. 1324-2 at 16, ¶¶ 51-52. On February 16, 2011, Plaintiff

28

presented to a medical facility with chest pain, where she learned that the filter had

1

fractured. Id. at ¶ 53. The filter was subsequently removed. Id. at ¶¶ 54-55. Plaintiff

2

died on May 6, 2014. Doc. 1475-1 at 2.

3

On February 13, 2015, Plaintiff’s counsel filed this lawsuit in Florida state court.

4

Doc. 1324-2 at 2. Bard removed the case to the Middle District of Florida, and the U.S.

5

Judicial Panel on Multidistrict Litigation transferred the case to this Court for inclusion in

6

this MDL. See Docs. 1 (notice of removal), 10 (conditional transfer order), in Noterman

7

v. C.R. Bard, Inc., No. 2:15-cv-01714-DGC (M.D. Fla. July 1, 2015). Bard became

8

aware of Plaintiff’s death when it received her plaintiff profile form on February 15,

9

2016. Doc. 1475 at 3. On March 11, 2016, Bard filed its motion to dismiss. See Doc.

10

1072.

11

complaint to substitute her husband and personal representative, John Noterman, for her.

12

See Doc. 1324.

13

II.

On April 4, 2016, Plaintiff’s counsel requested leave to amend Plaintiff’s

Capacity to Sue.

14

“‘Only a real party in interest has the capacity to bring a lawsuit.’” In re Engle

15

Cases, No. 3:09-cv-10000-J-32JBT, 2013 WL 8115442, at *2 (M.D. Fla. Jan. 22, 2013)

16

(“In re Engle Cases I”), aff’d, 767 F.3d 1082 (11th Cir. 2014) (quoting Tennyson v.

17

ASCAP, 477 F. App’x 608, 610 (11th Cir. 2012) (unpublished) (citing Fed. R. Civ. P.

18

17(a), (b)).1 “The capacity doctrine relates to the issue of a party’s personal right to

19

litigate in a federal court.” Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666, 670 (11th

20

Cir. 1991), abrogated on other grounds by Saxton v. ACF Indus., Inc., 254 F.3d 959

21

(11th Cir. 2001) (quotation marks and citation omitted). “‘[A] party must have a legal

22

existence as a prerequisite to having the capacity to sue or be sued.’” In re Engle Cases I,

23

2013 WL 8115442, at *2 (quoting Adelsberger v. United States, 58 Fed. Cl. 616, 618

24

(Fed. Cl. 2003)). “Indeed, a deceased individual cannot be a party to a lawsuit.” Id.

25

(citing Xtra Super Food Ctr. v. Carmona, 516 So. 2d 300, 301 (Fla. Dist. Ct. App.

26
27
28

1

Because an MDL transferee court applies the substantive law of the transferor
forum, the Court applies the substantive law of the Middle District of Florida. In re
Zicam Cold Remedy Mktg., Sales Practices, & Prods. Liab. Litig., 797 F. Supp. 2d. 940,
941 (D. Ariz. 2011) (citing Ferens v. John Deere Co., 494 U.S. 516, 525 (1990)).
-2-

1

1987)); see also Adelsberger, 58 Fed. Cl. at 618 (collecting cases). A lawsuit filed in the

2

name of a deceased individual is therefore a nullity, which presents a jurisdictional defect

3

that cannot be saved by substitution or amendment. In re Engle Cases I, 2013 WL

4

8115442, at *2, 4.

5

In In re Engle Cases I, a lawyer represented thousands of individual plaintiffs in

6

suits against a number of tobacco companies. Id. at *1. Among those cases were 521

7

cases where the complaint had been filed after the plaintiff had already died, but the

8

complaint alleged personal injury claims. Id. After repeated attempts to cull the docket

9

of cases with non-viable claims, the court issued a questionnaire to be filled out under

10

oath to determine which cases had viable claims. Id. Upon reviewing the questionnaires

11

and learning of these cases, defendants moved for dismissal of the 521 cases with

12

predeceased plaintiffs. Id. Plaintiffs sought leave to amend the complaints to substitute

13

parties and allege wrongful death claims under Rules 15 and 17 of the Federal Rules of

14

Civil Procedure, arguing that the error was simply “a pleading deficiency related to

15

capacity of the plaintiff, rather than a jurisdictional defect.” Id.

16

The court found that the “521 personal injury actions not only name parties

17

without capacity, but allege personal injury claims that abated when the smokers died.”

18

Id. at *3 (citing Fla. Stat. § 768.20 (“When a personal injury to the decedent results in

19

death, no action for the personal injury shall survive, and any such action pending at the

20

time of death shall abate.”)). The court acknowledged

27

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.

28

Id. at *4 (emphasis in original). The court dismissed the 521 cases without prejudice. Id.

21
22
23
24
25
26

-3-

1

at *6.

2

deciding “whether a personal injury claim brought on behalf of a deceased individual has

3

any legal effect, such that it can later be amended.” In re Engle Cases, 767 F.3d 1082,

4

1108 (11th Cir. 2014) (“In re Engle Cases II”).

The Eleventh Circuit affirmed the district court’s order, but did so without

5

Plaintiff’s motion is supported by few facts. And the few facts provided do not

6

adequately explain why counsel filed a personal injury complaint on behalf of a Plaintiff

7

who had died nine months before the complaint was filed. Plaintiff’s counsel explains

8

that “[i]n an abundance of caution to protect plaintiffs’ [sic] Statute of Limitations, an

9

action was commended [sic] on or about February 13th, 2015, by the filing of a

10

Complaint.” Doc. 1324 at 4, ¶ 3. Plaintiff’s counsel states that “[t]hereafter Parker

11

Waichman LLP was notified that plaintiff-decedent died on May 6, 2014.” Id. at ¶ 4.

12

Plaintiff’s counsel does not explain how he filed a complaint without first speaking with

13

his client. Nor does he explain why he had not communicated with his client during the

14

nine-month period between her death and the filing of the complaint. Nor does he

15

explain why he did not take immediate action to correct the deficient pleading upon

16

learning of her death. Plaintiff’s counsel summarily concludes that “Plaintiff should be

17

allowed to amend the original complaint in the above-captioned case herein to substitute

18

and add husband of plaintiff-decedent Pam W. Noterman, John Noterman as Personal

19

Representative of the Estate of Pam W. Noterman, in place of and stead of Pamela

20

Noterman.” Id. at ¶ 5.

21

Plaintiff’s motion is supported by virtually no legal authority.2

The solitary

22

authority Plaintiff cites is “Rule 15(2)” of the Federal Rules of Civil Procedure. Doc.

23

1324 at 3-4, ¶ 3. Presumably, Plaintiff is referencing Rule 15(a)(2), which allows a party

24

to amend her complaint with the opposing party’s consent or with leave of the court. But

25
26
27
28

2

Because of this dearth of legal authority, Bard asserts in a footnote that
Plaintiff’s motion violates LRCiv 7.2(b), which requires the moving party to “serve and
file with the motion’s papers a memorandum setting forth the points and authorities relied
upon in support of the motion.” Doc. 1475 at 2 n.1. As a remedy, Bard requests leave to
file a surreply to address any new arguments raised in Plaintiff’s reply brief. Because
Plaintiff declined to file a reply brief, Bard’s request to file a surreply is moot.
-4-

1

Plaintiff cites no additional legal authority to explain why the Court should grant Plaintiff

2

leave under Rule 15(a)(2) to file an amended complaint. Plaintiff’s counsel makes no

3

genuine attempt to counter Bard’s legal arguments despite having had two opportunities

4

to do so.3 Nonetheless, the Court will address the arguments that can be inferred from

5

Plaintiff’s motion to amend, which, as discussed above, is largely devoid of substance.

6

Although the motion to amend only references Rule 15, Plaintiff’s request

7

primarily implicates Rule 17 of the Federal Rules of Civil Procedure. A plaintiff’s

8

request to substitute the real party in interest invokes Rule 17(a)(1), which requires that

9

an action be prosecuted in the name of the real party in interest, and Rule 17(a)(3), which

10

permits substitution of the real party in interest in certain circumstances. “[M]ost courts

11

have interpreted . . . Rule 17(a) as being applicable only when the plaintiff brought the

12

action [in the name of the wrong party] as a result of an understandable mistake, because

13

the determination of the correct party to bring the action is difficult.” In re Engle Cases

14

II, 767 F.3d at 1109 (alteration in original; citations omitted); see also Fed. R. Civ. P. 17

15

(Advisory Comm. Notes to 1966 Amend.). Substitution is not appropriate in this case.

16

Plaintiff’s counsel could have readily determined the correct party to bring this action had

17

Plaintiff’s counsel investigated the basic facts underlying Plaintiff’s claims prior to filing

18

the complaint. If there is an understandable mistake as to why the proper party could not

19

be discovered, Plaintiff’s counsel has not even attempted to convey that information to

20

the Court. Plaintiff’s request to substitute parties under Rule 17(a)(3) is therefore denied.

21

Plaintiff’s motion to amend also implicates Rule 15(a)(2). Plaintiff’s motion does

22

not clearly state that the requested amendment includes a new claim. But in reviewing

23

the proposed amended complaint attached to the motion, Plaintiff has added a “survival

24

action” claim. Doc. 1324-4 at 33-34. Because the Court denied the motion to substitute,

25

it will also deny the motion to amend under Rule 15(a)(2).

26
3

27
28

Before Plaintiff filed her motion to amend, Bard filed its motion to dismiss.
Bard’s motion is substantially similar to its response to Plaintiff’s motion to amend.
Docs. 1072; 1475. But in her motion to amend, Plaintiff did not address any of the
arguments Bard made in its motion to dismiss. Nor did she address Bard’s arguments in
a reply brief; Plaintiff elected not to file one at all.
-5-

1

The Court finds a number of parallels between this case and In re Engle Cases I.

2

In this case, Plaintiff died on May 6, 2014. Doc. 1475-1 at 2. Over nine months later,

3

Plaintiff’s counsel filed a complaint against Bard alleging personal injury claims,

4

including that Plaintiff “is no longer able to sustain the active lifestyle that she enjoyed

5

prior to the time when she was treated with the G2X Filter,” and that she “suffered and

6

continues to suffer from physical and emotional pain.” Doc. 1324-2 at 16-17. The

7

complaint did not indicate that Plaintiff had already died. Nor was it filed by her

8

personal administrator. This pleading deficiency only came to light when Bard received

9

Plaintiff’s profile form.

To date, Plaintiff’s counsel has provided essentially no

10

explanation for the pleading deficiency or the lack of diligence. Nor has Plaintiff’s

11

counsel provided any legal authority to support Plaintiff’s position. Therefore, as in In re

12

Engle Cases I, Plaintiff’s complaint was a legal nullity when it was filed and remains so

13

today. This issue cannot be cured by substitution or amendment. The Court concludes

14

that Plaintiff’s motion to amend her complaint must be denied and the case must be

15

dismissed with prejudice.

16

IT IS ORDERED:

17

1.

Defendants’ motion to dismiss (Doc. 1072) is granted with prejudice.

18

2.

Plaintiff’s motion to amend (Doc. 1324) is denied.

19

Dated this 31st day of May, 2016.

20
21
22
23
24
25
26
27
28

-6-