Gilsdorf et al v. Ethicon, Inc. et al

Filing 51

MEMORANDUM OPINION AND ORDER directing that the claims of the plaintiffs are DISMISSED without prejudice pursuant to Rule 25(a)(1) and PTO 308; this case is dismissed and stricken from the docket; any remaining pending motions are DENIED as moot. Signed by Judge Joseph R. Goodwin on 10/27/2020. (cc: counsel of record; any unrepresented party) (kew)

Case 2:12-cv-08924 Document 51 Filed 10/27/20 Page 1 of 6 PageID #: 301
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROI L. GILSDORF and
EDDIE GARCIA,
Plaintiffs,
v.

Civil Action No. 2:12-cv-08924

ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On July 31, 2018, a Suggestion of Death was filed by plaintiffs’ counsel
suggesting the death of Roi Gilsforf during the pendency of this civil action. [ECF No.
40].
Pursuant to Federal Rule of Civil Procedure 25(a) and Pretrial Order (“PTO”)
# 308 (Requirements for Counsel to Deceased Plaintiffs) filed in In re: Ethicon, Inc.
Pelvic Repair System Products Liab. Litig., 2:12-md-2327 [ECF No. 6218], the time
to substitute a proper party for the deceased party has expired and there has been no
motion to substitute the deceased party.
I.

Background

This action resides in one of seven MDLs originally assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical
mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”).
This particular case involves Arizona co-plaintiffs, one of whom, Ms. Gilsdorf, was
implanted at Banner Good Samaritan Medical Center in Phoenix, Arizona with the
TVT-O, a mesh product manufactured by Ethicon, Inc. Short Form Compl. [ECF No.
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1] ¶¶ 1-11. On July 31, 2018, plaintiffs’ counsel filed a Suggestion of Death noting
that Ms. Gilsdorf died during the pendency of this action [ECF No. 40].
II.

Legal Standards
a. Rule 25

Rule 25 governs the process for substituting or dismissing a case after a
plaintiff has died. See Fed. R. Civ. P. 25. The rule provides:
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.
Fed. R. Civ. P. 25(a)(1). This rule also states that, “[a] motion to substitute, together
with a notice of hearing, must be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4. A statement noting death must be served in the
same manner.” Fed. R. Civ. P. 25(a)(3). The above-mentioned 90-day clock does not
begin to run until the decedent’s successors or representatives are served with a
statement noting death. See Farris v. Lynchburg, 769 F.2d 958, 962 (4th Cir. 1985).
If the successor or representative is party to the action, service must be made on the
party’s attorney. Fed. R. Civ. P. 5(b)(1).
Whether a claim is extinguished is determined by the substantive law of the
jurisdiction in which the cause of action arose. See Robertson v. Wegmann, 436 U.S.
584, 587 n.3 (1991) (explaining that a claim is not extinguished if the jurisdiction
allows the action to survive a party’s death). Traditionally, state statutes expressly
state whether a claim survives a deceased party and to whom survivorship is allowed.

Id. at 589. If a case includes multiple plaintiffs, the death of one plaintiff does not
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cause an abatement of the claims for the remaining parties. See Fed. R. Civ. P.
25(a)(2) (“After a party’s death, if the right sought to be enforced survives only to or
against the remaining parties, the action does not abate, but proceeds in favor of or
against the remaining parties.”).
b. PTO # 308
In Pretrial Order (“PTO”) # 308, the court required that “[f]or any case in which
plaintiff’s counsel subsequently learns of the death of his or her client, plaintiff’s
counsel shall file the suggestion of death within 120 days of counsel’s learning of the
death.” Pretrial Order # 308, p. 3, 2:12-md-2327 [ECF # 6218]. In addition, the court
directed that
within the same 120-day period, plaintiff’s counsel must serve
the suggestion of death on the parties and appropriate
nonparties as described above, and file proof of such service
with the court. The ninety-day substitution period provided by
Rule 25(a) will commence upon the filing and proper service of
the suggestion of death. In the event that plaintiff’s counsel
fails to file the suggestion of death and properly serve it on the
appropriate nonparties, the ninety-day substitution period will
commence 120 days after the entry of this Order or 120 days
after counsel’s learning of the death of his or her client,
whichever is later.

Id. at 3–4.
While this burden is on plaintiffs’ counsel, defendants’ counsel may also file a
suggestion of death on the record. “The filing of the suggestion of death by defendant’s
counsel places plaintiff’s counsel on notice of his or her client’s death, and therefore
commences the 120-day period within which plaintiff’s counsel must serve the
suggestion of death on the appropriate nonparties.” Id. at 4. If they should fail to
serve the suggestion of death, the ninety-day substitution period commences 120 days
after defendants’ counsel filed the suggestion of death. Id.
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c. Choice of Law
If a plaintiff files her claim directly in the MDL in the Southern District of
West Virginia, the court consults the choice-of-law rules of the state where the
plaintiff was implanted with the product. See Sanchez v. Boston Scientific Corp.,
2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“For cases that
originate elsewhere and are directly filed into the MDL, the court will follow the
better-reasoned authority that applies the choice-of-law rules of the originating
jurisdiction, which in our case is the state in which the plaintiff was implanted with
the product.”). Ms. Gilsdorf underwent implantation surgery in Arizona. Thus, the
choice-of-law principles of Arizona guide the court’s choice-of-law analysis.
Arizona applies the “most significant relationship.” See Sutter Home Winery,

Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 407 (9th Cir. 1992). Here, Ms. Gilsdorf
had the TVT-O implanted in Arizona and lived there. Thus, I apply Arizona’s
substantive law to this case.
III.

Analysis

Plaintiffs filed a Suggestion of Death on July 31, 2018, noting the Ms. Gilsdorf
died while this litigation was pending. [ECF No. 40]. Plaintiffs’ counsel filed six
affidavits. [ECF Nos. 42–47]. Kyle Gilsdorf, Emilio Gilsdorf, Drew Gilsdorf, Cruz
Gilsdorf, Coty Gilsdorf, and Brooke Gilsdorf were all served with the Suggestion of
Death. Id. Pursuant to Rule 25(a)(1) and PTO # 308 the time for substituting any
party or non-party for the deceased plaintiff has passed.
Rule 25(a)(1) provides the sole procedural device allowing decedent’s successor
or representative to step into Ms. Gilsdorf’s shoes and pursue litigation on her behalf.
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See Fed. R. Civ. P. 25(a)(1) (“A motion for substitution may be made by any party or
by the decedent’s successor or representative.”). Neither Mr. Garcia nor any nonparty successor or representative has complied with the substitution requirements of
Rule 25(a)(1) within the time requirements as set forth in Rule 25 (a) and PTO # 308.
Accordingly, the court ORDERS that the claims of Roi Gilsdorf are DISMISSED
without prejudice.
While failure to comply with Rule 25(a)(1) prevents Mr. Garcia from pursuing
claims on Ms. Gilsdorf’s behalf, Rule 25(a)(2) does not prevent Mr. Garcia from
pursuing claims on his own behalf. See Fed. R. Civ. P. 25(a)(2) (“After a party’s death,
if the right sought to be enforced survives only to or against the remaining parties,
the action does not abate, but proceeds in favor of or against the remaining parties.”).
In this matter, only Mr. Garcia’s claim for loss of consortium remains. Mr. Garcia’s
claim for loss of consortium is fully derivative of Ms. Gilsdorf’s claim. Stengel v.

Medtronic, Inc., 306 F.R.D. 230 (D. Ariz. 2018) (dismissing consortium plaintiff for
failure to substitute party after spouses’ death). Because Mr. Garcia’s claim is
dependent on Ms. Gilsdorf’s claim under Arizona law, it must be dismissed as well.
Accordingly, the court ORDERS that the claim of Eddie Garcia is DISMISSED
without prejudice.
IV.

Conclusion

It is ORDERED that the claims of the plaintiffs Roi Gilsdorf and Eddie Garcia
are DISMISSED without prejudice pursuant to Rule 25(a)(1) and PTO 308, and this
case is dismissed and stricken from the docket. Any remaining pending motions are
DENIED as moot.
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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
any unrepresented party.
ENTER: October 27, 2020

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