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We, well Bexis, had this happen to us more years ago than we can count, during the height (or should we say depths) of asbestos litigation in the Philadelphia Court of Common Pleas.  A plaintiff’s medical records demonstrated that, at the time the plaintiff filed his complaint, he was dead.  The plaintiff’s law firm has filed a backdated verification to the complaint rather than go through the bother of raising a proper estate.

We represented a minor defendant, and were trying to get that defendant out of the litigation using the “vicious chihuahua” defense.  That is, we hoped to get out by making ourselves too much of a nuisance to keep around.

Intrigued, we looked at Pennsylvania law and determined that a complaint filed ostensibly in the name of someone who had died before institution of suit was a nullity.

Nobody else picked up on it, so we filed a motion, and the complaint was duly dismissed against all defendants.  We thought nothing of it, except that getting complaints thrown out in toto helped convince the plaintiffs’ counsel to remove our client’s name from its word processor – eventually that happened.

We moved on from asbestos, to drugs and devices, and never expected to encounter that proposition again.  But now we have.  In In re Aredia & Zometa Products Liability Litigation, 2012 WL 2015791 (M.D. Tenn. June 5, 2012), a plaintiff was just as dead, plaintiff’s counsel just as lazy, and suit was filed just as belatedly, as in our long-ago asbestos case.  The outcome was the same – a complaint filed in the name of a dead person is just as dead and the plaintiff.  It’s a nullity.

Under Connecticut law, in order to confer jurisdiction on the court, a plaintiff must have an actual legal existence; that is, he must be a person in law or a legal entity with legal capacity to sue.  A deceased person is a non-existent entity and cannot be a party to a lawsuit.

Id. at *1 (citations omitted).

Having now seen it in two states, we suspect that the dead not being able to sue is a rule of pretty much universal application.  It doesn’t happen all that often, but in mass torts, plaintiffs’ counsel are known to cut corners.  If they cut this particular one, it’s a slam dunk dismissal with prejudice, and it can’t be cured after the fact by attempting to substitute an estate because, as the A/Z court noted, “[s]tanding [to sue] is determined as of the time the complaint is filed.”  Id. at *1 n.2.

So make sure somebody checks the dates of any dead plaintiff against the filing date of his/her complaint.  Who knows, you might get lucky.