Rapa v. Novartis Pharmaceuticals Corporation

Filing 29

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion to dismiss with prejudice is GRANTED. (Doc. No. 11.) Signed by District Judge Audrey G. Fleissig on 10/15/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN RAPA,
Plaintiff,
vs.
NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant.

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Case No. 4:08CV01671 AGF

MEMORANDUM AND ORDER
This diversity matter is before the Court on Defendant Novartis Pharmaceuticals
Corporation’s motion to dismiss with prejudice this lawsuit filed by Plaintiff John Rapa.
For the reasons set forth below, Defendant’s motion to dismiss shall be granted.
BACKGROUND
On October 30, 2008, Plaintiff John Rapa (“Plaintiff”), a Missouri resident, filed a
complaint against Defendant alleging five tort claims after he developed osteonecrosis of
the jaw as a side effect of Aredia, a drug manufactured by Defendant. The case was
consolidated for pretrial proceedings and transferred as a part of multidistrict litigation to
the Middle District of Tennessee (“the MDL court”) on November 24, 2008.
Unfortunately, Plaintiff passed away on December 17, 2009. A suggestion of
death was filed on July 1, 2010. (Doc. No. 12-4.) Plaintiff’s counsel moved in the MDL
court for provisional substitution of Plaintiff’s wife, Jeanine Rapa (“Ms. Rapa”). (Doc.
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No. 12-5.) The MDL court granted the motion for provisional substitution. (Doc. No.
12-7.) Under the MDL court’s Case Management Order (“CMO”), provisional
substitutions are conditioned on “the substituted plaintiff submit[ting] to the Court prior to
remand of the plaintiff’s claims a copy of the Order appointing him or her as the deceased
plaintiff’s personal representative.” (Doc. 12-3 at 5.) On September 18, 2013, Ms. Rapa,
along with her three children, obtained a determination of heirship from the Probate
Division of the Circuit Court of St. Louis County, Missouri. (Doc. No. 12-9 at 3-4.) She
never applied in probate court to be appointed Plaintiff’s personal representative nor did
she ever submit to the MDL court a copy of an order appointing her as such.
Upon completion of the consolidated pretrial proceedings in the action, the MDL
court remanded the case back to this Court pursuant to 28 U.S.C. § 1407(a) on March 25,
2014. (Doc. No. 8.) Ms. Rapa has never applied to become nor has she ever been
appointed Plaintiff’s personal representative. Consequently, the issue in this case is
whether, under the MDL court’s Case Management Order (“CMO”) and Missouri state
law, Ms. Rapa has standing to continue this case on Plaintiff’s behalf.
ARGUMENTS OF THE PARTIES
Defendant argues that the Court should dismiss this action with prejudice because
Ms. Rapa lacks the proper legal authority under Missouri law to prosecute this lawsuit on
behalf of her husband, and because Ms. Rapa violated the express terms of the CMO issued
by the MDL court. Defendant bases the motion to dismiss on the fact that Ms. Rapa was
never appointed personal representative of Plaintiff, and the time to do so has long since
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passed under both Missouri law and the CMO. Defendant relies on the fact that it has
been over four years since Plaintiff died on December 17, 2009, and Ms. Rapa still has not
been appointed her husband’s personal representative. Defendant argues that not only did
Ms. Rapa fail to become so appointed within the thirty days required by the CMO, but she
also missed the one-year statute of limitations under Missouri law.
Furthermore, Defendant purports that Ms. Rapa misrepresented her legal status to
the MDL court in the motion for provisional substitution by identifying herself as the
personal representative of Plaintiff despite the fact that she was never appointed to the
role.1 Defendant argues that despite her representations, Ms. Rapa was not the proper
party to be substituted for Plaintiff under Missouri law, as legally required by the CMO and
Federal Rule of Civil Procedure 25(a). Moreover, Defendant argues that Ms. Rapa never
fulfilled the condition of provisional substitution because she never submitted an order
appointing her personal representative, so the provisional substitution was extinguished
upon remand. For all of these reasons, Defendant argues that this case should be
dismissed with prejudice for lack of standing.
Ms. Rapa argues that the Court should deny Defendant’s motion because her
substitution was procedurally proper and because Defendant’s argument to the contrary
should be barred under the doctrine of laches. In support of the claim that her substitution

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In the motion for substitution, Ms. Rapa did not claim to be the personal representative,
but requested that the MDL court appoint her as personal representative of her husband’s
estate. However, as Defendant correctly notes and as explained further below,
appointment as personal representative can only be made by a Missouri probate court, not a
federal district court.
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was proper, Ms. Rapa argues that Federal Rule of Civil Procedure 25(a) allows for
flexibility and controls even when state law has different procedural requirements. Ms.
Rapa alleges that her filing of a suggestion of death and motion for provisional substitution
are sufficient to fulfill the procedural requirements of Rule 25(a).
Ms. Rapa also argues that, under Missouri law, the Judgment Determining Heirs
was sufficient to make her the personal representative of her husband and to give her
standing to pursue this case on his behalf. Ms. Rapa asserts that she would have qualified
to be appointed as personal representative, if she applied, and that there is no limitation
under Missouri law that prevents primary beneficiaries named in heirship determinations
from being recognized as personal representatives for the purposes of actions like this one.
Alternatively, Ms. Rapa argues that Defendant’s motion to dismiss should be denied
based on the doctrine of laches because of Defendant’s failure to object to the motion for
provisional substitution. Ms. Rapa points to the fact that Defendant knew she only had
one year after Plaintiff’s death to be appointed a personal representative, but Defendant did
not raise this issue until now—over two years after that time expired. Ms. Rapa asserts
that “procedural technicalities should not trump the substance of the claims at issue” at this
point in the proceedings. (Doc. No. 16 at 8.)
In response to Ms. Rapa’s laches argument, Defendant contends that a lack of
standing cannot be waived, and, even if it could, Defendant did not learn that Ms. Rapa was
never appointed personal representative of Plaintiff until after the MDL court remanded
the case back to this Court.
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LEGAL STANDARD
Under Federal Rule of Civil Procedure 25(a), “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper party” through a motion for
substitution. Fed. R. Civ. P. 25(a). “[S]tate law governs who can be a ‘representative’ or
‘successor,’ and therefore, who can qualify as a proper party for substitution under Rule
25(a)(1).” In re Baycol Prods. Litig., 616 F.3d 778 (8th Cir. 2010) (emphasis in original).
Similarly, the CMO dictates that if a plaintiff dies, the applicable state law will control
appointment of a personal representative on the plaintiff’s behalf. (Doc. No. 12-3 at 4.)
Because Plaintiff was a Missouri resident, Missouri law controls who qualifies as the
proper party for substitution in order to continue this action.
Under Missouri common law, tort claims do not survive the death of the victim.
Manson v. Wabash R. Co., 338 S.W.2d 54 (Mo. 1960) (en banc). However, Missouri’s
survival statute allows a decedent’s tort claims to be pursued by the injured party’s
personal representative under Mo. Rev. Stat. § 537.020. The statute states:
Causes of action for personal injuries, other than those resulting in death...shall not
abate by reason of [a party’s] death…but…such cause of action shall survive to the
personal representative of such injured party….
[T]he right of action for personal injury that does not result in the death shall be
sufficient to authorize and to require the appointment of a personal representative by
the probate division of the circuit court upon the written application therefor by one
or more of the beneficiaries of the deceased.
Mo. Rev. Stat. § 537.020. Section 537.020 is the sole method for properly substituting a
party in order to continue a tort claim in Missouri. Sauter v. Schnuck Markets, Inc., 803
S.W.2d 54, 55 (Mo. Ct. App. 1990). The properly appointed personal representative is the
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only person who has standing to bring a survival action. Id. Despite Ms. Rapa’s
arguments to the contrary, an heirship determination does not make a designated heir the
personal representative of an estate and is insufficient to continue a tort claim on behalf of
a deceased party. See id.; Carter v. Pottenger, 888 S.W.2d 710, 711 (Mo. Ct. App. 1994).
A decedent’s cause of action can only survive if brought by a personal
representative of his estate appointed by a probate court. Johnson v. Akers, 9 S.W. 3d 608,
609-610 (Mo. 2000). “A personal representative of an estate is appointed by the probate
division of the circuit court in the applicable jurisdiction upon filing of letters of
administration with the court.” Id. (citing Mo. Rev. Stat. § 473.110). The statute of
limitations to apply for appointment as a personal representative in Missouri probate court
is one year. Id. (citing Mo. Rev. Stat. § 473.070); see also Mo. Rev. Stat. § 473.020 (“If
no application for letters testamentary or of administration is filed by a person entitled to
such letters pursuant to section 473.110 within twenty days after the death of a decedent,
then any interested person may petition…for the issuance of letters testamentary or of
administration…. The petition must be filed within one year after the death of the
decedent.”).
Ms. Rapa did not seek to be appointed as her husband’s personal representative
within the one-year statute of limitations—or any time after that. Since Ms. Rapa was
never appointed a personal representative of her husband, she has no standing to continue
this case on his behalf.
Moreover, Ms. Rapa did not fulfill the conditions of provisional substitution in the
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CMO because she never submitted an order appointing her legal representative of her
husband’s estate in order to finalize her substitution. Of course, Ms. Rapa could not have
submitted such an order because she was never appointed her husband’s personal
representative. Failure to fulfill the condition means that Ms. Rapa’s substitution was not
finalized in the MDL court, and could never have been so finalized, because she lacked the
legal status of personal representative of Plaintiff’s estate.
Courts involved in this multidistrict litigation, including both the Eastern and
Western Districts of Missouri, have similarly dismissed cases for failure to properly
substitute parties based on state law and the MDL court’s CMO. See, e.g., Chiapel v.
Novartis Pharm. Corp., No. 4:06 CV 1642 RWS (E.D. Mo. Jan. 23, 2014) (Doc. 12-1);
Blumenshine v. Novartis Pharm. Corp., No. 4:08-cv-005670-SOW (W.D. Mo. July 23,
2013) (Doc. No. 12-2); Wilson v. Novartis Pharm. Corp., No. 12-10309, 2014 WL
3378316 (5th Cir. July 11, 2014); Porter v. Novartis Pharm. Corp., No. 1:06-cv-3052,
2014 WL 3639135 (N.D. Ill. July 23, 2014).
At no point did Ms. Rapa apply to be the personal representative of her husband, and
the one-year time limitation to do so has long since passed. Ms. Rapa lacks standing to
bring this claim, so this case must be dismissed. “Standing is jurisdictional and a lack of
standing cannot be waived,” under the doctrine of laches or otherwise. See Sauter, 803
S.W.2d at 55.
Ms. Rapa is not her husband’s personal representative as required by Missouri law
to continue this case, and the provisional substitution granted by the MDL court expired
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upon failure to fulfill the condition before remand. Given that it has been almost five
years since Plaintiff died and Missouri’s statute of limitations is one year, it is impossible
for a personal representative to be appointed at this time to continue the claim on Plaintiff’s
behalf.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss with prejudice is
GRANTED. (Doc. No. 11.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of October, 2014

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