Triche v. Ethicon, Inc. et al
Filing
33
MEMORANDUM OPINION AND ORDER directing that the claims of the plaintiff Melissa Triche 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. Signed by Judge Joseph R. Goodwin on 11/18/2020. (cc: counsel of record; any unrepresented party) (kew)
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IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MELISSA TRICHE,
Plaintiff,
v.
Civil Action No. 2:13-cv-02474
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On August 21, 2018, a Motion to Dismiss was filed by plaintiff’s counsel stating
that plaintiff Melissa Triche died during the pendency of this civil action. [ECF No.
28].
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 Texas plaintiff, Ms. Triche, who was implanted at North
Oaks Health System in Hammond, Louisiana, with the TVT, a mesh product
manufactured by Ethicon, Inc. Amend. Short Form Compl. [ECF No. 2] ¶¶ 1–11. On
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August 21, 2018, plaintiff’s counsel filed a Motion to Dismiss, suggesting that Ms.
Triche died during the pendency of this action. [ECF No. 28].
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. 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 plaintiff’s 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.
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III.
Analysis
Plaintiff’s counsel filed a Motion to Dismiss on August 21, 2018, noting that
Ms. Triche died during the pendency of this civil action. [ECF No. 28]. I treat this
Motion to Dismiss as a Suggestion of Death, triggering the 120-day period in which
plaintiff’s counsel must serve appropriate non-parties. The record does not reflect any
effort by plaintiff’s counsel to comply with PTO # 308. 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. Triche’s shoes and pursue litigation on her behalf.
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.”). No non-party 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 Melissa Triche are DISMISSED without
prejudice.
IV.
Conclusion
It is ORDERED that the claims of the plaintiff Melissa Triche 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: November 18, 2020
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