Porter v. Novartis Pharmaceuticals Corp.
Filing
7358
MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 7/23/2014. Mailed notice(meg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STUART PORTER,
Plaintiff,
v.
NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant.
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Case No. 06 C 3052
MEMORANDUM OPINION AND ORDER
This action, originally filed against Novartis Pharmaceuticals Corporation ("Novartis") in
the Circuit Court of Cook County and then removed to this District Court on the basis of
diversity jurisdiction, sustained a multiyear detour when the Panel on Multidistrict Litigation
included this action in an entire package of cases that asserted product liability stemming from
the use of two FDA-approved medications (Aredia and Zometa) and that the Panel reassigned to
the United States District Court for the Middle District of Tennessee ("MDL Court"). Because
those medications are basically prescribed for terminally ill patients, both the MDL Court and
the litigants before it anticipated that many of the plaintiffs would die before their suits could be
concluded. That led to the MDL Court's inclusion in its Case Management Order of a set of
special protocols to govern substitutions for any later-deceased plaintiffs, supplementing the
requirements of Fed. R. Civ. P. ("Rule") 25(a).
When the MDL Court retransferred this action to this District Court a few months ago
(on March 4, 2014), it came burdened with an existing motion to dismiss initially brought by
Novartis back in 2010, which asserted that the requirements for substitution prescribed by
Rule 25(a)(1), the MDL Court's Case Management Order and Illinois state law had not been
complied with and that such noncompliance was fatal to this action. Original plaintiff Stuart W.
Porter had indeed died on May 25, 2010, and it was not until more than six months later -- after
Novartis had already moved for dismissal -- that plaintiff's counsel filed a Suggestion of Death
stating that "Stuart D. Porter, 1 Executor of the Estate of Stuart W. Porter, will be substituted in
this action so that Stuart W. Porter's claims survive and the action may proceed on his behalf."
But the problem with counsel's representation in that Suggestion of Death was that it was false -although Stuart D. Porter was named as Executor in Stuart W. Porter's will, he had not been
court-appointed to that status at the time that the quoted representation was made, and he has
indeed not been court-appointed even now.
That situation calls for a close look at the controlling legal requirements. First, here is
Rule 25(a)(1) -- note particularly the reference to "the proper party" in the first sentence and the
provision for mandatory dismissal in the third:
If a party dies and the claim is not extinguished, the court may order substitution
of the proper party. A motion for substitution may be made by any party or by the
decedent's successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.
As for the MDL Court's Case Management Order, its Section V deals with "substitution of
plaintiffs," echoes the Rule 25(a)(1) suggestion-of-death requirement, specifies that the motion
for substitution must "describe why the proposed substitute plaintiff is a 'proper party'" and then
goes on to state in relevant part:
1
[Footnote by this Court] Original plaintiff Stuart W. Porter was the father of Stuart D.
Porter.
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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 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).
Although the litigants here agree that the determination of who is a "proper party" looks
to state law for its substantive content, they differ as to the direction in which that inquiry points.
There is no dispute that the motion for substitution filed in the MDL Court back in December
2010 (after Novartis' motion to dismiss had brought the matter to the attention of the MDL Court
and plaintiff's counsel) was not only filed months too late but also flat-out misrepresented the
situation twice in asserting that Stuart D. Porter had been "appointed the Executor of the Estate
of Stuart W. Porter." That falsehood was of course unknown to Novartis and its counsel, so that
it did not oppose the substitution, and the MDL Court then approved it. Indeed, just two months
later, when Stuart D. Porter was deposed, both he and his counsel repeated the misrepresentation
that he was "the administrator" and "personal representative" of the estate. And here is Novartis'
Mem. n.4 filed in this District Court on May 23 of this year:
The probate authority in Cook County, Illinois, the location of Stuart W. Porter’s
last residence in Illinois confirmed to Novartis counsel that no estate was ever
opened for Stuart W. Porter and that no one ever requested appointment or
obtained appointment as the representative for him or his estate. Novartis counsel
likewise checked with the probate authorities in nearby Lake County, Illinois and
McHenry County, Illinois, in Riverside County, California (where Stuart W.
Porter was reported to have traveled frequently), and in Norfolk County,
Massachusetts (where Stuart D. Porter resides) -- all of which confirmed that no
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estate was ever opened for Stuart W. Porter and that no one ever requested
appointment or obtained appointment as the representative for Stuart W. Porter or
his estate in any of those locations. See Declaration of Michael Casady ("Casady
Decl.") (Exhibit 7).
With all of that as background, it is time to look at the Illinois law applicable to survival
actions such as this one (see 755 ILCS 5/27-6). On that score Will v. Northwestern Univ., 378
Ill. App. 3d 280, 881 N.E.2d 481 (1st Dist. 2007) provides the most helpful guide. Here, in the
"Standing" section of that opinion (but omitting the citations to, and quotations from, the flock of
earlier cases that support the following summary), are the relevant principles as stated in Will,
378 Ill. App. 3d at 289-90, 881 N.E.2d at 492-93:
Illinois law has long made clear that, under both of these [referring to wrongful
death and survival actions], the cause of action must be brought by and in the
name of the representative or administrator of the decedent's estate. It is to this
administrator that the right of action accrues and it is this administrator who
possesses the sole right of action or control over the suit; the beneficiaries or heirs
have neither a right of action nor any control. Simply put, wrongful death and
survival actions do "not create an individual right in a beneficiary to bring suit."
Most importantly, an executor nominated in a decedent's will does not have power to act in that
respect until an Illinois probate court issues "letters testamentary" (755 ILCS 5/6-8 and 5/6-14).
Until then the designated executor's powers extend only "to the carrying out of any gift of the
decedent's body or any part thereof, to the burial of the decedent, the payment of necessary
funeral charges and the preservation of the estate" (755 ILCS 5/6-14).
All that has gone before in this opinion compels the conclusions (1) that plaintiff and his
counsel have simply blown any right to proceed with this action and (2) that time has run out on
any opportunity to cure that fatal flaw. Indeed, Novartis' initial memorandum of law in support
of its dismissal motion cites a host of other Aredia/Zometa actions that have been dismissed with
prejudice based on improper substitutions and other substitution errors -- ten decisions by other
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remand courts and three by the MDL Court itself. And Novartis' just-filed reply memorandum
cites to and attaches a copy of a Court of Appeals' per curiam opinion in Wilson v. Novartis
Pharms. Corp., 2014 WL 3378316 (5th Cir. 2014), which less than two weeks ago affirmed such
a dismissal under virtually identical circumstances, rejecting the argument that the District Court
there had abused its discretion in dismissing the case.
Among the numerous decisions that have arrived at the dismissal destination, this Court
finds most compelling both the Fifth Circuit's Wilson opinion (of course) and the startlingly
(almost eerily) parallel opinion of the United States District Court for the Middle District of
Pennsylvania in Wallace v. Novartis Pharms. Corp., 2013 WL 6198943 (M.D. Pa. 2013) -- an
opinion that ordered dismissal with prejudice because of the selfsame improprieties that have
fatally tainted plaintiff's lawsuit here, including the misrepresentation as to representative status
by the substituted plaintiff and the failure to obtain a timely appointment as the personal
representative for the original plaintiff's estate as required by state law. Instead of simply
echoing the Wilson court's ruling or the portions of the Wallace opinion that might well have
been written for this case, it suffices for this Court to refer to and to adopt the Wallace case's
section headed "Failure to Comply with the MDL Court's CMO "(id. at *2-*3) and the following
section captioned "Failure to Comply with Rule 25(a)" (id. at *3-*4).
Clearly unable to escape from the jaws of the figurative steel trap described here,
plaintiff's counsel has filed a response that proposes "to cure this technical [sic] deficiency by
properly appointing Stuart D. Porter and thereafter seeking leave to file an Amended Complaint."
To that end counsel attempts to draw solace from the relation-back provision of 735 ILCS
5/2-616(b). That effort is truly bizarre, for unlike the substantive question of who qualifies as a
"proper party" (a question to be answered under state law) plaintiff's counsel seeks to invoke an
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Illinois statutory provision governing pleading, part of the state's Code of Civil Procedure. That
contention seeks to obliterate the bright line that separates substantive state law in diversity cases
from the procedural provisions (such as Rule 25(a)(1)) to which this Court and all other federal
courts must look as a fundamental matter.
Three fundamental factors, then, interact to thwart plaintiff's effort to breathe life into a
claim that was stillborn at its very outset. First, any establishment of the condition essential to
survival of Stuart W. Porter's action after his death is not simply untimely -- it is totally
nonexistent, for the "proper party" referred to in Rule 25(a)(1) has never been brought into the
action even now, years after that should have taken place. Second, there is no conceivable way
in which Stuart D. Porter could arguably assert "excusable neglect" as a basis for relief from his
failure to act in a timely fashion in that respect. 2 And third, the federal provision for relation
back of pleadings (Rule 15(c)(1)) is simply inapplicable to this case.
Conclusion
In summary, this Court sees no reason whatever to depart from the conclusions reached
in the other Novartis cases cited by its counsel. This action is dismissed with prejudice.
__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: July 23, 2014
2
That quoted term derives from Rule 6(b)(1)(B)'s test for relief from untimeliness, as to
which the Advisory Committee Notes to the 1963 amendment to Rule 25 state:
The [substitution] motion may not be made later than 90 days after the service of
the statement [of death] unless the period is extended pursuant to Rule 6(b), as
amended.
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