A long time ago, when we were just starting out as defense hacks, a mentor told us to beware of the double-standard that lawyers representing big corporations face: we are expected to be virtually perfect in our compliance with every possible rule (even rules whose existence and/or application are doubtful) while plaintiff lawyers can blow every deadline, botch every filing, bobble every rule, and get away with it because they are, pretend to be, or claim to represent, the little guy. For years we thought that double-standard applied. In front of some judges, we still fear the double standard. But we also have lots of friends among the plaintiffs’ bar and we have heard them complain of a double-standard that they face. Maybe everybody in our business labors under the impression that they are uniquely oppressed. Maybe we want to portray ourselves as heroes confronting long odds.

Most judges try to enforce the rules but also try to inject a little bit of flexibility into the system. They will cut litigants some slack, until it becomes clear that the litigant is a serial offender. Indeed, as brutal as the combat can be between plaintiffs and defendants, more often than not we usually find ways to cut each other some slack. There is a bit of ‘there but for the grace of God go I’ in these extensions of merciful courtesies. Nevertheless, if it becomes clear that the rule violations form a pattern of indifference or sloppiness, and if the noncompliance is truly disruptive or prejudicial (and our clients have more than a little input in this sort of calculation) it becomes appropriate to ask the court for enforcement of the rules and implementation of the correct sanction or remedy.

In mass tort litigation, there are two areas where we almost always run into at least some plaintiffs (and their attorneys) who fail to cross the t’s and dot the i’s where it matters: (1) plaintiffs who declared bankruptcy but did not include their tort claims as an asset in bankruptcy, and (2) plaintiffs who died and were not appropriately substituted for per the relevant state procedure. Our friend Joe Hollingsworth called our attention to an example of the latter in the Aredia/Zometa MDL, which has already been so prolific in producing grist for our bloggy mill.

The United States District Court for the Western District of Arkansas granted Novartis Pharmaceuticals Corporation’s motion to dismiss in McDaniel v. Novartis Pharmaceuticals Corporation, Case No. 2:08-CV-02088 (W.D. Ark. Jan. 6, 2012), because a deceased plaintiff had not been properly substituted for, despite representations to the court that the substitution would be accomplished. The case was originally filed in the United States District Court for the Middle District of Tennessee and was centralized in the Aredia and Zometa MDL. The case was ultimately remanded to the Western District of Arkansas, where the plaintiff’s family resided and was set for a February 2012 trial. At the time of trial, the putative plaintiff was the son of the allegedly injured party, who had died as a result of multiple myeloma.

But a lot had happened, or failed to happen, before February 2012. A Suggestion of Death had been filed, and the decedent’s husband was provisionally substituted in as personal representative. But the husband never changed his status from provisional personal representative to personal representative by submitting to the MDL court an order of appointment, as was required by the court’s case management order. Then the husband became incompetent to serve as personal representative. In early 2010, the son took over as provisional representative. But he never made application to be appointed administrator of his mother’s estate and never changed his status from provisional personal representative to personal representative by submitting to the MDL court an order of appointment. No estate had ever been opened for the decedent, and no petition had ever been filed to appoint someone (husband or son) as personal representative. After the passage of substantial time (nearly four years), and on the eve of trial, the plaintiff filed a Motion to Amend Order of Substitution, while the defense filed a Motion to Dismiss the Case.

The plaintiff’s motion was denied, and the defense motion was granted. The court was clearly reluctant to dismiss a case on what seems to be technical grounds, but was just as clearly constrained by the rules and the procedural posture of the case. The court found itself “in the unfortunate situation where, on the eve of trial, Plaintiff requests that this Court travel back in time and cure the procedural missteps done in the course of this litigation,” which “the Court cannot and will not do.” The husband’s and son’s failure to substitute in as personal representative violated three levels of rules: (1) they “failed to follow the terms of the MDL court’s case management order in substituting a proper party in interest within the time period specified by the order and prior to remand of the case” for trial; (2) they “failed to meet F.R.C.P. 25’s requirements for proper substitution of a deceased party”; and (3) they “failed to properly revive the claim according to A.C.A. § 16-62-108 [the Arkansas revival statute] within a year of Mrs. McDaniel’s death.” The court stated, “[t]he simple fact is that Plaintiff’s counsel had plenty of time to correct the procedural deficiency created by the death of Mrs. McDaniel.” Moreover, the “procedural deficiency” is not merely technical. The court lacks jurisdiction over the matter because the husband and son had failed to revive the claim.

Because the rule at issue really mattered, and because the plaintiffs had no viable excuse for ignoring the rule over such a long period of time, the court had no choice. For some rules, there simply is no double standard.