McClurg et al v. MI Holdings, Inc. et al

Filing 621

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendants' Joint Motion to Dismiss Plaintiffs Anderson, McHenry, and Donaldson Amended Complaint is DENIED. ECF No. 599 . IT IS FURTHER ORDERED that the Clerk of Court shall file this Order in the lead case as well as Case No. 4:14-cv-00037. Signed by District Judge Audrey G. Fleissig on 8/8/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SCOTT D. MCCLURG, et al.,
Plaintiffs,
vs.
MALLINCKRODT, INC., et al.,
Defendants.

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Case No. 4:12-CV-00361-AGF
Lead Case

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ joint motion (ECF No. 599) to
dismiss, as time-barred, the amended complaints filed on behalf of the following three
decedents in these consolidated cases: Leon Anderson, William Donaldson, and William
McHenry. The amended complaints were filed with leave of the Court on June 13, 2017,
by the decedents’ spouses, who were substituted as party plaintiffs on January 25, 2016.
For the reasons set forth below, the Court will deny Defendants’ motion.
BACKGROUND
Before their deaths, the decedents named above each filed a “public liability action”
under the Price-Anderson Act (“PAA”) as amended, 42 U.S.C. §§ 2014, 2210, governing
legal liability related to “nuclear incidents.”1 The decedents sought compensatory and
punitive damages for bodily injury allegedly suffered as a result of exposure to radioactive
substances mishandled by Defendants. After they filed suit, each died.

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The PAA provides that “the substantive rules for decision in [a public liability
action] shall be derived from the law of the State in which the nuclear incident involved
occurs, unless such law is inconsistent with the provisions of [other relevant sections of the
PAA].” 42 U.S.C. § 2014(hh).

Donaldson filed suit on February 28, 2012, and died on April 16, 2013; McHenry
and Anderson filed suit on January 10, 2014, and died on February 13, 2014, and March
21, 2014, respectively. On January 5, 2016, Plaintiffs’ attorneys filed “Suggestions of
Death” and moved to substitute the spouse of each decedent under Federal Rule of Civil
Procedure 25.2 The filings did not indicate the causes of death. Defendants did not
oppose the motions for substitution, and the motions were granted as unopposed on
January 25, 2016. ECF No. 333.
On April 24, 2017, Defendants filed a motion to dismiss the decedents’ complaints,
arguing for the first time that the spouses of Anderson, Donaldson, and McHenry were
improper parties for substitution under Rule 25. Defendants argued that the spouses
lacked standing to prosecute the decedents’ claims because the spouses were not appointed
by the state probate court to be personal representatives of the decedents’ estates, as
required by Missouri’s survival statute, Mo. Rev. Stat. § 537.020, and the time to do so had
passed under Missouri law.
In response, Plaintiffs did not dispute that the spouses were not appointed to be
personal representatives of the decedents’ estates, but Plaintiffs argued that Missouri’s
survival statute did not apply to the spouses’ claims. Plaintiffs argued that because the
decedents died as a result of the injuries alleged in their complaints—namely, cancer
attributable to Defendants’ conduct—the spouses’ claims were wrongful death actions

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Case No. 4:12-cv-00361, ECF No. 328; No. 4:14-cv-00037, ECF Nos. 14 & 18.
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rather than survival actions. And Plaintiffs asserted that the substituted spouses were the
proper parties to recover for the wrongful death of the decedents under Missouri law.
In reply, Defendants noted that Plaintiffs never pleaded that the decedents died from
the injuries alleged in their complaints, and it was too late to do so because Missouri’s
wrongful death statute’s three-year limitations period, which governs Plaintiffs’ PAA
public liability actions alleging wrongful death (ECF No. 449),3 had passed.
The Court agreed with Plaintiffs that, to the extent Anderson, Donaldson, and
McHenry died from the injuries alleged in their complaints, their spouses were proper
parties and did not need to be appointed as personal representatives of the decedents’
estates in order to seek wrongful death damages.4 But because Plaintiffs had not pleaded
that the decedents died as a result of the injuries alleged in their complaints, the Court
allowed Plaintiffs to file amended complaints on behalf of the decedents, to sufficiently
plead causes of action under the PAA for injuries resulting in death, if appropriate. The
Court declined to address Defendants’ argument, raised in their reply brief, as to the
timeliness of such claims. Instead, the Court denied Defendants’ motions to dismiss

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As the Court previously held, with respect to PAA public liability actions arising
out of nuclear incidents, federal courts apply the limitations period of the state-law cause of
action most analogous to the federal claim—in this case, the statute of limitations
applicable to Missouri’s wrongful death statute, Mo. Rev. Stat. § 537.080, which provides
that wrongful death claims must be filed within three years after the date of death. See
Mo. Rev. Stat. § 537.100; Boland v. St. Luke’s Health Sys., Inc., 471 S.W.3d 703, 710 (Mo.
2015), as modified (Oct. 27, 2015).
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Under Missouri’s wrongful death statute include “such damages as the deceased
may have suffered between the time of injury and the time of death and for the recovery of
which the deceased might have maintained an action had death not ensued,” Mo. Rev. Stat.
§ 537.090.
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without prejudice to filing new motions to dismiss directed to any amended complaints
filed by Plaintiffs.
The spouses of Anderson, Donaldson, and McHenry filed amended complaints on
June 13, 2017. The amended complaints, like the original complaints, assert causes of
action under the PAA and seek compensatory and punitive damages. However, the
amended complaints add an allegation that each decedent’s injuries, caused by exposure to
radioactive substances mishandled by Defendants, resulted in death.
Defendants filed this motion to dismiss the amended complaints on June 27, 2017.
Defendants argue that the amended complaints are untimely and must be dismissed as a
matter of law because they were filed more than three years after the death of each
decedent. According to Defendants, wrongful death is a distinct cause of action under
Missouri law, created purely by statute, and a personal injury claim does not automatically
convert to a wrongful death claim upon the death of the decedent.
In response, Plaintiffs argue that the amended complaints are timely because they
relate back to the decedents’ timely-filed original complaints. Plaintiffs argue that the
claims in the amended complaints arose out of the same conduct, transactions, or
occurrences set forth in the original complaints. Plaintiffs further argue that Defendants
were aware, before the three-year statute of limitations expired, that the decedents died as a
result of the injuries alleged in their complaints and that the decedents’ spouses intended to
prosecute claims to seek damages for wrongful death. Specifically, Plaintiffs argue that,
in January 2015, they produced to Defendants each decedent’s death certificate, which
listed as the cause of death the type of cancer alleged in the decedent’s complaint, and
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revised questionnaires5 completed by the spouse of each decedent that provided
information about each spouse’s wrongful death claim. Further, Plaintiffs argue that
Defendants will not have to engage in any new or different discovery as a result of the
amendment. Therefore, Plaintiffs argue that Defendants cannot show unfair prejudice.
In reply, Defendants argue that the amended complaints do not relate back to the
decedents’ original complaints because the spouses of the decedents are new parties
asserting new causes of action, and they have not shown any justification for the delay in
adding the allegations that the decedents died as a result of their injuries. Defendants
further argue that the death certificates and questionnaires produced in discovery were not
sufficient to provide Defendants with notice that the decedents’ spouses intended to pursue
claims seeking damages for the decedents’ wrongful deaths. Finally, Defendants contend
that allowing the untimely amendment to go forward here would unfairly prejudice
Defendants by introducing uncertainty into this litigation and requiring Defendants to
prepare for attempts by other Plaintiffs to add untimely wrongful death claims.
DISCUSSION
Federal Rule of Civil Procedure 15(c)(1)(B) provides that “[a]n amendment to a
pleading relates back to the date of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). “To arise
out of the same conduct, transaction, or occurrence, the claims must be tied to a common

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Under the Case Management Order, each Plaintiff is required to disclose to
Defendants a completed questionnaire with basic information about his or her claim.
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core of operative facts.” Taylor v. United States, 792 F.3d 865, 869 (8th Cir. 2015)
(citation omitted). The rule in Missouri is the same. See Mo. Sup. Ct. R. 55:33(c);
Plubell v. Merck & Co., 434 F.3d 1070, 1072 (8th Cir. 2006) (“Missouri Rule 55.33(c) ‘is
derived from Rule 15(c) of the Federal Rules of Civil Procedure.’”) (quoting Koerper &
Co. v. Unitel Int’l, Inc., 739 S.W.2d 705, 706 (Mo. 1987)).6
Moreover, when the amendment adds a new plaintiff, it “relates back if ‘the
defendant knew or should have known that it would be called on to defend against claims
asserted by the newly-added plaintiff,’ unless ‘the defendant would be unfairly prejudiced
in maintaining a defense against the newly-added plaintiff.’” Plubell, 434 F.3d at 1072
(citation omitted) (noting that the test would be the same under Missouri law).
Same Operative Facts
As Defendants correctly note, the Missouri Supreme Court has repeatedly held that
the Missouri wrongful death statute, Mo. Rev. Stat. § 537.080, “creates a new cause of
action where none existed at common law and did not revive a cause of action belonging to
the deceased,” Lawrence v. Beverly Manor, 273 S.W.3d 525, 527 (Mo. 2009) (citation

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The parties have not addressed whether federal or state law governs the question of
whether the amended complaints at issue relate back, but they have generally cited to
federal law in their briefs. The Eighth Circuit has held that “[a]lthough we generally
apply federal law on ‘procedural’ matters like amendability,” where state law governs the
substantive issues, “we defer to state law as to considerations that form ‘an integral part of
the state statute of limitations,’ at least ‘in the absence of a federal rule directly on point.’”
See Capers v. Nat’l R.R. Passenger Corp., 673 F. App’x 591, 594 (8th Cir. 2016) (internal
citations omitted). In any event, as discussed above, federal and state law do not conflict
as to the issue of relation-back here.
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omitted). But this general pronouncement has not been applied to preclude relation-back
of the type sought here, and is therefore not dispositive of the issue before the Court.7
Moreover, unlike the Missouri cases cited by Defendants, the cause of action here
was, and still is, a PAA public liability action for damages resulting from a nuclear
incident. The cause of action has not changed. But because the PAA incorporates the
state’s substantive rules for decision, including, as this Court has previously held, the
three-year statute of limitations for wrongful death claims, the question is whether an
amendment adding an allegation that the decedent died as a result of his injuries, more than
three years after that death, relates back to the decedent’s original complaint seeking
damages for those injuries.
The parties have not cited, and the Court has not found, any Missouri or Eighth
Circuit caselaw addressing this question. And the courts in other jurisdictions that have
addressed the question are split. Compare, e.g., Murray v. Manville Corp. Asbestos
Comp. Fund, No. 87 C 5545, 1990 WL 156625, at *1-3 (N.D. Ill. Oct. 5, 1990) (holding
that an amendment adding a claim under the Illinois wrongful death statute for death due to
asbestos exposure did not relate back to the decedent’s original complaint alleging injury

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In Lawrence, the Missouri Supreme Court held that because a wrongful death claim
was a new cause of action, it was not subject to an arbitration agreement signed by the
decedent. The court recognized that it had previously held that the “‘[wrongful death]
cause of action is derivative of the underlying tortious acts that caused the fatal injury,’ and
that therefore, the wrongful death suit did not constitute a new cause of action.” Id. (citing
State ex rel. Burns v. Whittington, 219 S.W.3d 224 (Mo. 2007) (holding, in the context of
interpreting a state venue statute, that an amended petition alleging wrongful death as a
result of benzene exposure was “based upon the same operative facts” as the decedent’s
original petition alleging injury based on benzene exposure). But the Lawrence court held
that “different issues necessitate different analyses.” Id
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due to the same exposure because allowing relation-back would violate the Rules Enabling
Act by allowing the wrongful death plaintiff to bypass the timeliness requirement of the
state law, and because a wrongful death claim was a distinct cause of action), with Lewin v.
Am. Exp. Lines, Inc., 224 F.R.D. 389, 396-98 (N.D. Ohio 2004) (holding that under Rule
15(c)(2), an amended complaint adding a claim for wrongful death due to maritime
asbestos exposure under the Jones Act related back to the original complaint filed by the
decedent under the same Act, for personal injury due to the same exposure), and Sompolski
v. Miller, 608 N.E.2d 54, 58 (Ill. App. Ct. 1992) (declining to follow Murray and holding
that, under Illinois law, an amended complaint by the decedent’s daughter for wrongful
death due to an automobile accident related back to the decedent’s personal injury claim
based on same accident).
Although it is a close question, the Court finds that the amended complaints here
arise out of the same operative facts as the original complaints. The Missouri courts have
described the intent of the state relation-back rule, which is “derived from Rule 15(c),” as
follows: The Rule “re-emphasizes and assists in attaining the objective of the rules on
pleadings: that pleadings are not an end in themselves, but are only a means to the proper
presentation of a case; that at all times they are to assist, not deter, the disposition of
litigation on the merits.” Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d
76, 116 (Mo. Ct. App. 2006) (citing Koerper & Co., Inc. v. Unitel Int'l., Inc., 739 S.W.2d
705, 706 (Mo. 1987)). Thus, the rule is to be “liberally applied,” with the understanding
“that a party who is notified of litigation concerning a given transaction or occurrence has
been given all the notice that statutes of limitation are intended to afford.” Id. Allowing
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the amendments to relate back here serves this purpose. And as discussed in more detail
below, Defendants will suffer no unfair surprise, as both the original and amended
complaints relate to their alleged mishandling of radioactive substances, and the evidence
needed to defend against both complaints is largely the same.
Notice and No Unfair Prejudice
There is no dispute that the spouses of Anderson, Donaldson, and McHenry are
proper parties to pursue PAA public liability actions alleging the wrongful death of the
decedents as a result of their injuries. But as discussed above, because the spouses were
not parties to the original complaints, their amendments will relate back only if Defendants
had notice that they would be called on to defend against the spouses’ claims and if
Defendants would not be unfairly prejudiced in maintaining such a defense.
Here, in addition to producing to Defendants death certificates indicating the causes
of death of the decedents, and questionnaires providing information regarding their
wrongful death claims, the spouses of Anderson, Donaldson, and McHenry filed motions
to be substituted as party plaintiffs in January 2016, less than three years after the death of
each decedent, without any objection by Defendants. These documents, together, put
Defendants on notice, before the wrongful death statute of limitations expired, that they
would be called on to defend against claims asserted by the spouses.
For whatever reason, the spouses did not amend their complaints at the time they
were substituted as plaintiffs, in order to add an allegation that each decedent died as a
result of the injuries alleged. But rather than raising the issue at the time, Defendants
waited until after the statute of limitations ran.
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Based on these particular facts, not present in any case cited by the parties, as well
as the fact that the scope of discovery is substantially the same, the Court cannot say that
Defendants have been unfairly prejudiced by the amendments. Cf. McConnell v.
Commercial Carriers, Inc., No. 403CV253RWS, 2009 WL 3247304, at *1, *5 n.3 (E.D.
Mo. Oct. 5, 2009) (denying a motion to amend a personal injury complaint alleging injuries
due to a fall from a trailer, to add an untimely wrongful death claim alleging that the
decedent’s heart disease was causally connected to the fall suffered years before, because
the defendants would be unfairly prejudiced, not having conducted discovery related to the
decedent’s heart disease, and the amended complaint was futile; but noting that if leave to
amend were granted, it “would cure any potential statute of limitations issues because Rule
15(c) permits an amendment to relate back to the date of the original pleading”).
However, the Court’s holding is limited to these unique circumstances. Going
forward, the Court will not look favorably on delays by Plaintiffs in pursuing leave to add
wrongful death allegations, and any such motions not promptly filed will be denied.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ Joint Motion to Dismiss Plaintiffs
Anderson, McHenry, and Donaldson Amended Complaint is DENIED. ECF No. 599.
IT IS FURTHER ORDERED that the Clerk of Court shall file this Order in the
lead case as well as Case No. 4:14-cv-00037.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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Dated this 8th day of August, 2017.

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