Recently we posted twice about procedural irregularities that threatened the Supreme Court’s consideration of Riegel v. Medtronic. Today the Supreme Court granted the plaintiff’s belated motion to substitute an estate for the deceased Mr. Riegel, thus insuring that the Court will hear the medical device preemption issue on the merits. Chief Justice Roberts and Justice Scalia dissented.

Here’s the text of the Riegel order, which can also be found here:

RIEGEL, CHARLES R., ET UX. V. MEDTRONIC, INC.

The motion of Donna Riegel, the administrator of the Estate of Charles R. Riegel, to be substituted in place of Charles R. Riegel, deceased, is granted. The exercise of this Court’s power to grant an untimely motion to substitute a party is not unprecedented. State Farm Mutual Auto. Ins. Co. v. Campbell, 537 U.S. 1042 (2002); see also Schact v. United States, 398 U.S. 58, 63-64 (1970) (“The procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion…”); Stern & Gressman, Supreme Court Practice 350 (8th ed. 2002).

The Chief Justice and Justice Scalia would deny the motion, because it was filed more than six months after the petitioner’s death. See Supreme Court Rule 35.1 (“If the substitution of a representative of the deceased is not made within six months after the death of the party, the case shall abate” (emphasis added)). The fact that Rule 35.1 is not jurisdictional is not a reason to ignore it, particularly since here, unlike in Campbell, supra, the motion was opposed by the respondent.

Baker v. St. Jude Medical is not on the denied list. Presumably the Court is holding Baker for disposition in light of Riegel.