Hunter et al v. Kennedy et al

Filing 305

MEMORANDUM (Order to follow as separate docket entry) re 282 MOTION to Substitute Party Defendant Pursuant to FRCP 25 filed by Margaret T Hunter Signed by Magistrate Judge Joseph F. Saporito, Jr on 6/30/21. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARGARET T. HUNTER, et al.,
Plaintiffs,

CIVIL ACTION NO. 3:17-cv-00007

v.

(SAPORITO, M.J.)

RICHARD P. KENNEDY, M.D., et
al.,
Defendants.
MEMORANDUM
This matter is before the court on the plaintiffs’ motion to substitute
MedPro Group for deceased defendant Richard P. Kennedy, M.D. (Doc.
282). As we write for the parties, we incorporate by reference the factual
background in a series of memoranda previously issued by the court.
(Doc. 224; Doc. 226; Doc. 228). For the reasons that follow, the court
grants the motion in part and denies the motion in part.
In addition to the facts relied upon by this court in issuing
memoranda with respect to the various motions in limine, we find several
additional facts which inform our decision on the motion before us. The
defendant, Richard P. Kennedy, M.D., died on June 20, 2020, survived by
his widow, Elaine Rose Kennedy, a resident of Fort Washington,

Pennsylvania. During a telephone conference on March 16, 2021, among
counsel for the parties and personal counsel for Elaine Rose Kennedy,
counsel for Mrs. Kennedy represented that no one would raise an estate
because the estate had no assets and that Dr. Kennedy’s assets passed to
his surviving spouse, Mrs. Kennedy.

After the plaintiffs filed an

emergency petition for citation to compel application for letters under 20
Pa. Cons. Stat. Ann. § 3155 with the Register of Wills for Montgomery
County, Pennsylvania, Mrs. Kennedy, through the assistance of her
counsel, applied for Letters Testamentary on the Estate of Richard P.
Kennedy. The Register of Wills granted the application and appointed
Mrs. Kennedy as the Executrix of the Estate on March 31, 2021.
It is undisputed that the plaintiffs’ claims against Dr. Kennedy
survive under 42 Pa. Cons. Stat. Ann. § 8302 and 20 Pa. Cons. Stat. Ann.
§ 3371. At the time of the alleged negligence in this case, Dr. Kennedy
was insured for the claims by Medical Protective Insurance Company
(MedPro Group). The plaintiffs maintain that MedPro Group is the real
party in interest as it is contractually and statutorily obligated to
indemnify the estate of Dr. Kennedy, and therefore should be the proper
party substituted for Dr. Kennedy. Alternatively, the plaintiffs request
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that Mrs. Kennedy be substituted as the proper party for the late Dr.
Kennedy.
Counsel for defendants Dr. Kennedy and Monroe Radiology
Imaging, P.C. filed a response to the plaintiffs’ motion (Doc. 287; Doc.
298) which denies that MedPro Group is the real party in interest and it
should not be substituted as a party in place of Dr. Kennedy. Rather,
counsel for Dr. Kennedy and Monroe Radiology propose that Mrs.
Kennedy, as the executrix of the estate, is the proper substituted party.
(Doc. 298, at 5, 7). The remaining defendants have not responded to the
plaintiffs’ motion to substitute.
The parties have briefed the motion and it is ripe for a decision.
(Doc. 288; Doc. 289; Doc. 296; Doc. 299; Doc. 303; Doc. 304).
III. Discussion
Under Fed R. Civ. P. 25(a)(1): “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.” Here, the motion to substitute was timely
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made by the plaintiffs. Thus, the issue before the court is who should be
substituted as a party for the late Dr. Kennedy.

The decision to

substitute parties lies within the discretion of the court. Rocco v. Bickel,
Civ. No. 1:12-CV-829 2013 WL 4000886 *2 (M.D. Pa., Aug. 5, 2013).
In Sinito v. U.S. Department of Justice, 176 F.3d 512, 516 (D.C. Cir.
1999), the Court noted that Fed. R. Civ. P. 25 allows for the substitution
of a “successor” for a deceased party, a term which means that a proper
substituted party need not necessarily be the appointed executor or
administrator of the deceased party’s estate. Id. Rather, the purpose of
Rule 25 is to allow more flexibility in substitution. Rende v. Kay, 415 F.2d
983, 984 (D.C. Cir. 1969). As to who may be substituted as a proper party
it has been held that in this setting:
[Under] certain circumstances a person may be a
“successor” under Rule 25(a)(1) if she is (1) the
primary beneficiary of an already distributed
estate; (2) named in a will as the executor of the
decedent’s estate, even if the will is not probated;
or (3) the primary beneficiary of an unprobated
intestate estate which need not be probated.
In re Baycol Products Litigation, 616 F.3d 778, 784–85 (8th Cir. 2010)
(citations omitted); see also Billups v. West, No. 95 CIV.1146(KMW), 1998
WL 341939 *1 (S.D.N.Y June 26, 1998) (“Pursuant to Rule 25(a)(1)[,] a
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proper party for substitution is either (1) a successor of the deceased
party—a distributee of an estate if the estate of the deceased has been
distributed at the time the motion for substitution has been made . . . or
(2) a representative of the deceased party—a person lawfully designated
by state authority to represent the deceased’s estate.”)
In order to facilitate the substitution process, wherever possible, a
suggestion of death should “identify the representative or successor of an
estate who may be substituted as a party for the deceased before Rule
25(a)(1) may be invoked from those who represent or inherit from the
estate.” Rende, 415 F.2d at 986. Although a formal suggestion of death
was not filed here, it is not necessary that a notation of the fact of death
be made on the record before a motion for substitution can be made.
Dolgow v. Anderson, 45 F.R.D. 470 (D.C.N.Y. 1968); see also Anderson v.
Republic Motor Inns, Inc., 444 F. 2d 87 (3d Cir. 1971) (Failure to make
formal motion was excused where a pretrial memorandum filed within
the 90-day period set forth the intention to substitute wife as executrix
of deceased plaintiff.) Nevertheless, counsel for the late Dr. Kennedy and
Monroe Radiology notified counsel for the plaintiffs of the death of Dr.

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Kennedy in a telephone conference with the court on February 25, 2021.
(Doc. 296, at 1-2.)
“It is axiomatic that Rule 25 limits properly substituted parties to
those individuals who can adequately represent the interests of the
deceased party.” Sinito, 176 F.3d at 516. In this regard:
Because the purpose of Rule 25(a)(1) is to protect
the estate of the decedent, district courts must
ensure only “those individuals who can adequately
represent the interests of the deceased party” are
substituted under the Rule. Sinito, 176 F.3d at
516. District courts should therefore look at the
facts and circumstances of each case and then
determine whether the person [to be] substitute[d]
will sufficiently prosecute or defend the action on
the decedent’s behalf.
In re Baycol Products Litig., 616 F.3d at 788. Matters of substitution are
not defined mechanically by the mere fact that a person is related
through blood or marriage to the decedent. Rocco, 2013 WL 4000886 at
*3; See also Robertson v. Wood, 500 F. Supp. 854, 859 (S.D.Ill. 1980)
(“Rule 25(a) clearly contemplates appointment of legal representatives,
such as an executor or an administrator.”). Rule 25(a)’s use of the term
“successor” necessarily implies that there is some decedent’s estate or
interest which remains and as to which the substituted party has

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succeeded.

Rocco, Id.

Pennsylvania law defines a “personal

representative” as “an executor or administrator of any description.” 20
Pa. Cons. Stat. Ann. § 102. Here, the plaintiffs have provided the Court
with a copy of a Short Certificate of the Register of Wills of Montgomery
County, Pennsylvania evidencing that Letters Testamentary on the
Estate of Richard P. Kennedy, deceased, were granted to Elaine Rose
Kennedy on March 31, 2021. (Doc. 282-2). Thus, there is no question
that Mrs. Kennedy, in her capacity as Executrix of the Estate of Richard
M. Kennedy, is a proper party for substitution.
These principles control here and lead us to conclude that Mrs.
Kennedy, in her capacity as Executrix of the Estate of Richard P.
Kennedy, should be substituted as a party defendant in place of Dr.
Kennedy. The Pennsylvania Probate, Estates and Fiduciaries Code, 20
Pa. Cons. Stat. Ann. § 3311, et seq., define the powers, duties, rights, and
liabilities of a personal representative of a decedent. The Code permits,
inter alia, the substitution of the personal representative of a deceased
party to a lawsuit, 1 the personal representative’s right to petition the

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20 Pa. Cons. Stat. Ann. § 3372.
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court to authorize the settlement of a claim, 2 and the personal
representative’s broad duty to protect the assets of the estate.
Finally, the plaintiffs represent that they will withdraw the motion
to substitute if Mrs. Kennedy is substituted as a party for Dr. Kennedy
without objection. (Doc. 303; Doc. 304). It is the court’s impression that
the defendants do not oppose the substitution of Mrs. Kennedy, as
Executrix of the Estate, for Dr. Kennedy.
An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge

Dated: June 30, 2021

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20 Pa. Cons. Stat. Ann. § 3323.
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