Dickson v. Ethicon, Inc. et al

Filing 43

MEMORANDUM OPINION AND ORDER This case is STAYED until 2/26/2018 to allow the plaintiff, Mary Dickson, to either (1) obtain counsel or (2) provide the court with evidence that she is the sole beneficiary of the estate; failure to comply with this ord er may result in the denial of Mary Dickson's request to proceed in this case without counsel as the Personal Representative of the Estate of Vada Mae Smith. Signed by Judge Joseph R. Goodwin on 2/12/2018. (cc: counsel of record; plaintiff, via certified mail, return receipt requested) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: ETHICON, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL 2327

THIS DOCUMENT RELATES TO:

Mary Dickson, Personal Representative
of the Estate of Vada Mae Smith v.
Ethicon, Inc., et al.

Civil Action No. 2:15-cv-02800

MEMORANDUM OPINION AND ORDER
On October 12, 2017, I stayed this case to allow the plaintiff, Mary Dickson,
Personal Representative of the Estate of Vada Mae Smith (hereinafter, “the Estate”),
to (1) obtain counsel or (2) provide the court with evidence that she is the sole
beneficiary of the Estate and that the Estate has no creditors. [ECF No. 32].
On October 23, 2017, Mary Dickson, Personal Representative of the Estate,
filed a number of documents in response to this court’s October 12, 2017 order. [ECF
No. 34]. Among these documents, the plaintiff included copies of records from the
County of Greenbrier, West Virginia, recognizing that the decedent died intestate,
that she has six heirs, the plaintiff has assumed the role of administratrix of the
Estate, and that the county published notice of the opening of the Estate for probate.
The plaintiff also included five signed documents, purportedly waivers of any
property interest in the Estate, executed by John Wayne Buckland II (decedent’s
grandson), Angelica R. Buckland (decedent’s granddaughter), David Buckland

(decedent’s son), and Robbie Buckland (decedent’s grandson), and James Buckland
(decedent’s son). Together, disregarding the plaintiff herself, four of the five identified
heirs to the Estate each signed a waiver. Ruth Buckland, having died in January
2017, did not to sign a waiver. Instead, the plaintiff procured the waiver of Robert
Buckland, Ruth Buckland’s son, who agreed to sign on his mother’s behalf.
On January 2, 2018, 1 defendants Ethicon, Inc. and Johnson & Johnson
(collectively, “the defendants”) filed a reply challenging the filing’s compliance with
my order that the plaintiff provide the court with evidence that she is the sole
beneficiary of the Estate and that the Estate has no creditors (the “Reply”) [ECF No.
39]. The documents do not evince, the defendants argue, that the plaintiff is the sole
beneficiary of the Estate because the purported waivers do not conform to certain
provisions of the Uniform Disclaimer of Property Interests Act, which require among
other things that:
a disclaimer must be in writing, declare the disclaimer,
describe the interest or power disclaimed, be signed by the
person making the disclaimer, be acknowledged in such a

manner as would authorize a deed to be admitted of record
and be delivered or filed in the manner provided in section
twelve of this article.

W. Va. Code § 42-6-5(c) (emphasis added). According to the defendants, the attached
waivers neither describe the interest disclaimed, nor were “acknowledged in such a
manner as would authorize a deed to be admitted of record.”

Because the plaintiff failed to comply with Federal Rule of Civil Procedure 5(a)(1), I ordered
plaintiff Mary Dickson to certify that she served these documents on counsel for defendants Ethicon,
Inc. and Johnson & Johnson by December 18, 2017. See Fed. R. Civ. P. 5(a)(1) (requiring pleadings
filed after the original complaint to be served on every party); Fed. R. Civ. P. 5(d)(1) (“Any paper . . .
that is required to be served—together with a certificate of service” must be filed “within a
reasonable time after service”). As such, I extended the deadline for defendants Ethicon, Inc. and
Johnson & Johnson to respond to January 2, 2018.
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Notwithstanding these defects, the defendants also challenge the waiver
executed by Robert Buckland. The defendants argue that the plaintiff has made no
showing that Robert Buckland is authorized to on behalf of his mother’s estate.
Therefore, the defendants claim, his waiver is a nullity. The defendants also argue
that the papers submitted do not denote the existence or absence of creditors.
After the filing of the defendants’ Reply, the plaintiff submitted additional
papers in response to the deficiencies articulated by the defendants in their Reply
[ECF No. 41]. Included among these papers is a letter from the Joni Harrah,
Fiduciary Supervisor of Greenbrier County, representing that the Estate has no
creditors. Also among these papers are updated “waivers” signed by the same five
individuals listed above. These new waivers now include the seal of a notary public.
I have reviewed these documents thoroughly. To establish the absence of
creditors, the plaintiff produces a document annotated with Greenbrier County
letterhead reporting the absence of creditor claims filed against the Estate. To date,
the document remains unchallenged and the court sees no reason to doubt its
veracity. Therefore, I FIND that the plaintiff has sufficiently provided the court with
evidence that the Estate has no creditors.
To establish her status as the sole beneficiary of the Estate, the plaintiff
produced waivers signed by the same five individuals identified above. In these
waivers, four of the Estate’s heirs and Robert Buckland certify that:
Mary Dickson is trusted and has my permission and
confidence to be named “Sole Beneficiary” in the case listed
above to represent this case [] Pro-se. I waive any and all
rights as beneficiary concerning the Estate of Vada Smith
(Deceased) and recognize and agree, Mary Dickson, to be
named “Sole Beneficiary” regarding the Court Order.
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Pl.’s Letter-Form Motion 5-9 [ECF No. 41].
As noted by the defendants, the above-cited language comprising these waivers
raise some question whether these individuals are unequivocally disclaiming all
property interest in the Estate. See Defs.’ Reply to Pl.’s Submissions Regarding Pro
Se Representation 2 [ECF No. 42]. For example, whether or not Mary Dickson is
trusted and has the permission of the individuals to be named “sole beneficiary” in
this case is immaterial. However, given the signees unequivocal expression that they
“waive any and all rights as beneficiary concerning the Estate of Vada Smith,” I FIND
that the updated waivers adequately describe the interest disclaimed.
As noted by the defendants, West Virginia law also requires the disclaimer “be
acknowledged in such a manner as would authorize a deed to be admitted of record.”
W. Va. Code § 42-6-5. A deed may be admitted of record only “when it shall have been

acknowledged by him, or proved by two witnesses as to him.” W. Va. Code § 39-1-2
(emphasis added). In a different but related article of the West Virginia Code, the
term “acknowledged” is defined as:
[A] declaration by an individual before a notarial officer
that the individual has signed a record for the purpose
stated in the record and, if the record is signed in a
representative capacity, that the individual signed the
record with proper authority and signed it as the act of the
individual or entity identified in the record.
W. Va. Code § 39-4-2.
Read together, the documents under consideration – although informal and
sometimes inartful – sufficiently show that the individuals declared before a notarial
officer that they signed the instrument for the purpose stated. Absent a showing
otherwise, at this point in the litigation, I find that attached documents comport with
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West Virginia Code § 39-1-2 for purposes of demonstrating that the documents were
acknowledged in such a manner as would authorize a deed to be admitted of record.

See In re Atl. Smokeless Coal Co., 103 F. Supp. 348, 350 (S.D. W. Va. 1952) (“It should
be noted at the outset that it is the general policy of the law to sustain certificates of
acknowledgment whenever it is possible to do so . . . ; that substantial compliance is
all that is required; and that words of import and significance equivalent to those
specified are deemed sufficient.”); see also Tildesley Coal Co. v. Am. Fuel Corp., 130
W. Va. 720, 732 (1947) (upholding the validity of an instrument despite the absence
of a “showing here that the notary who certified the acknowledgment to the deed of
trust, was not, in fact, a notary public with full power to act”).
Notwithstanding, the plaintiff still has not demonstrated that Robert
Buckland is somehow authorized to disclaim property on behalf of his deceased
mother’s estate. I have no reason to doubt the sincerity of the plaintiff’s assertion that
Robert Buckland is the only son of Ruth Buckland. I cannot, however, infer from this
fact alone that Robert Buckland is the Personal Representative of Ruth Buckland’s
estate, or otherwise authorized to disclaim a property interest on behalf of Ruth
Buckland’s estate. Until the plaintiff so demonstrates, I cannot attach any
significance to Robert Buckland’s waiver and, as a result, there is insufficient
evidence at this time that the plaintiff is the sole beneficiary of the Estate.
The Court ORDERS that this case is STAYED until February 26, 2018 to allow
the plaintiff, Mary Dickson, to either (1) obtain counsel or (2) provide the court with
evidence that she is the sole beneficiary of the estate. In order for the plaintiff to
establish that she is the sole beneficiary of the estate, she needs only to file
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documentary evidence demonstrating that Robert Buckland is the Personal
Representative of Ruth Buckland’s estate, or that he is otherwise authorized to
disclaim a property interest on behalf of Ruth Buckland’s estate, given the
development of the record as described above. Failure to comply with this order may
result in the denial of Mary Dickson’s request to proceed in this case without
counsel as the Personal Representative of the Estate of Vada Mae Smith.
The court further DIRECTS the Clerk to send a copy of this Order to counsel
of record, and to send a copy of this Order to the plaintiff, via certified mail, return
receipt requested to 531 Jackson Street, Covington, VA 24426.
ENTER: February 12, 2018

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