Grant v. Novartis Pharmaceuticals Corporation

Filing 50

ORDER denying (7069) Motion to Substitute Party. in case 3:06-md-01760; denying (49) Motion to Substitute Party. in case 3:07-cv-00394. Plaintiff's counsel until November 6, 2013, to file a motion to actually substitute Kimberly Cerra for Ca thy Grant. Novartis will then have 14 days within which to respond to the motion for substitution. Signed by Magistrate Judge Joe Brown on 10/17/13. Associated Cases: 3:06-md-01760, 3:07-cv-00394(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
In Re:

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AREDIA and ZOMETA PRODUCTS
LIABILITY LITIGATION
(MDL No. 1760)
This Document Relates to:

Case 3:07-0394 (Grant)

No. 3:06-MD-1760
Judge Campbell
Magistrate Judge Brown

O R D E R
A

40-minute

telephone

conference

was

held

with

the

parties in this matter on October 16, 2013. This case, which is
presently in Group 2, has unfortunately run into a serious problem.
On August 5, 2008 (Docket Entry 11), the Magistrate Judge granted
a motion (Docket Entry 10) to substitute Cathy Grant as surviving
spouse of Mr. Preston Grant. The motion for substitution cited that
Mr. Grant passed away on February 23, 2008, and that under New York
law his claims survived to his personal representative. It further
stated that pursuant to Mr. Grant’s last will and testament his
wife, Cathy Grant, had been named Executrix of Mr. Grant’s estate.
When the case was ready for discovery, difficulties arose
in

scheduling

Mrs.

Grant’s

deposition.

From

the

telephone

conference Mr. Osborn represented that Mrs. Grant had subsequently
remarried and that the three surviving children of Mr. Grant were
by a previous wife and were not children of Mrs. Cathy Grant.
In the motion for provisional substitution filed shortly
before the telephone conference (Docket Entry 49), Mr. Osborn
represented

that

Mrs.

Cathy

Grant

(now

Cathy

Bostic,

but

hereinafter referred to as Mrs. Grant) has remarried and is no
longer interested in proceeding as the Plaintiff in this action. He
represents that Mr. Grant’s daughter, Kimberly Cerra, wishes to be
substituted in this action and has agreed to take the steps
necessary to gain the legal authority to continue this action.
The Magistrate Judge raised questions as to what the
provisions of the will actually were, whether an estate had been
opened, if one had been opened, whether it had been closed, as well
as whether New York law would permit a substitution if the will was
not probated or probated and closed. Novartis had similar issues
and wanted to be sure who Mr. Osborn represented at this point, in
view of Mrs. Grant’s statements that she no longer wished to be the
Plaintiff in the matter.
Cases should, where possible, be decided on the merits.
However, if under New York law substitution is not possible then it
is best to resolve that issue now rather than later. Normally, the
failure of the Plaintiff to participate in a deposition would be
grounds for dismissal once the individual had been warned. In this
case Mrs. Grant was warned that failing to be deposed by October
18, 2013, could result in sanctions for failure to obey the order
of the Court.
In an effort to resolve the legal status of who will or
can be the plaintiff in this matter, the Magistrate Judge will DENY
without prejudice the motion to substitute a party (Docket Entry

2

7069)and allow Plaintiff’s counsel until November 6, 2013, to file
a motion to actually substitute Kimberly Cerra for Cathy Grant. In
filing this motion counsel should attach a copy of the will, an
affidavit from Mrs. Grant concerning whether she intends to dismiss
the case entirely or to resign as executrix.
Novartis has raised a question as to whether any estate
was ever opened. Counsel for the Plaintiff should address this
issue

and

provide

case

law,

which

would

allow

either

the

substitution of an executor or the opening of an estate and
appointment of an executor at this late date.
Novartis will then have 14 days within which to respond
to the motion for substitution.
As Mr. Grant’s surviving spouse at the time of his death,
Novartis is entitled to take Mrs. Grant’s deposition, whether as a
party or as a witness. If the case moves forward she will be
deposed at some point. At the present time the Magistrate Judge
considers that Mr. Osborn represents both Mrs. Grant and Kimberly
Cerra, unless otherwise notified.
If a motion to substitute is granted this case will be
moved to a later group.
It is so ORDERED.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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