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You have almost certainly heard the phrase, “Waiting with bated breath.”  As in: we awaited the Red Wedding scene in Game of Thrones with bated breath.  Or:  we greeted the Drug and Device Law Son’s diploma  ceremony with bated breath.  (The former was impressive and awful. As one friend wrote on his Facebook wall, if you had a favorite character in GoT, maybe now you don’t. The latter was the occasion for unalloyed joy, and we expect to be levitating for a while – at least until the first college tuition payment comes due.)   Maybe you thought it was “baited breath,” as if referring to some sort of seafood-borne halitosis.  But, no, it’s “bated,” meaning restrained, lessened, diminished, or stopped.  The word and the phrase in which it typically resides have been around since at least Shakespeare.  This is from The Merchant of Venice, Act I, scene iii:  “With bated breath, and whispering humbleness.”

“Bated” is a variant of “abate,” a word that almost any lawyer has bumped up against more than a few times.  Different jurisdictions can have slightly different meanings for the concept of abatement, but it usually refers to some external reason for putting off or dismissing a case.  Like jurisdiction or, say, preemption, it offers a way of kicking a case on grounds pretty well divorced from the underlying merits.  For that reason lawyers find it enthralling and non-lawyers find it maddening.  In our days working on diet drug cases, it was amazing how many of the plaintiffs had filed for bankruptcy yet had not listed their tort claims as an asset of the estate. That omission, whether intentional or not, could lead to abatement of the tort action until things were set right in bankruptcy court, perhaps even reopening the bankruptcy proceedings.  Or maybe the failure to list the claim could form the basis of an estoppel with respect to the tort claim.  You denied having any such claim, so now you cannot pursue it.  We have posted before on bankrupt plaintiffs.

Here in our charming little commonwealth of Pennsylvania, one common species of abatement arises when the plaintiff dies and the substitution of the estate is not accomplished properly.  That abatement recently resulted in out-and-out dismissal of one of the cases in the Aredia-Zometa MDL —  In re Aredia and Zometa Products Liability Litigation,  2013 WL 2317743 (M.D. Tenn. May 28, 2013).  The Aredia-Zometa MDL is based in M.D. Tenn., but the particular case at issue was governed by Pennsylvania law.  The facts are as convoluted as these things usually are, and the court seems to have been displeased with the way things were handled by the plaintiff’s side.  It was actually the Magistrate Judge who seemed especially displeased and who initially recommended dismissal of the case.  The plaintiff did not file timely objections, and the district court did not appear to wait with bated breath in adopting the recommendations.

This is an Aredia-Zometa case, so the plaintiff was receiving treatment for cancer.  Remember that.  Also remember that the plaintiff’s side changed counsel.  That ended up being important.  The original plaintiff, Mrs. Spiese, died on April 11, 2007.  The original counsel for the plaintiff filed a “suggestion of death” [another odd turn of phrase] on July 27, 2007.  Thereafter, the attorney filed a motion to substitute on October 23, 2007 in which he represented that Mrs. Spiese’s husband had been named executor of her estate and requested that the court enter an order substituting Mr. Spiese as his late wife’s personal representative.  Years went by.  This is, after all, an MDL.  Somewhere along the way, new counsel came in to represent the plaintiff.  That new counsel filed a  motion on January 31, 2013 to substitute Mr. Spiese’s surviving daughter for Mr. Spiese, who was “ill and unable to continue as the plaintiff in the lawsuit” at the time the motion was filed.  Obviously there was some truth to this representation, as Mr. Spiese died the next day.

The defendant responded on February 21, 2013 in the form of a combined petition for abatement under Pennsylvania law, a motion to vacate ab initio the order granting the motion to substitute entered in 2007, and a motion to dismiss under both Fed.R.Civ.P. 25(a) and the Case Management Order (CMO).  It turns out that Mr. Spiese had not been appointed his late wife’s personal representative after all.  Why?  Who knows.  Ms. Spiese’s estate was not opened until January 17, 2013.  Thus,  the October 23, 2007 motion to substitute was, er, not exactly correct.  This news was not greeted well by the Magistrate Judge.  The Magistrate Judge, in fact, thought that there had been “misrepresentations” by the former counsel.  In re Aredia and Zometa Products Liability Litigation, 2013 WL 2317743 at *3.  Accordingly, the Magistrate Judge denied the latest motion to substitute and recommended dismissal of the case in its entirety.

Pennsylvania law imposes a one year statute of limitations to appoint a personal representative.  A court has discretion to relax this requirement if there is a “reasonable explanation” why the letters of administration were not timely obtained.  Here, Mr. Spiese had never opened his wife’s estate.  Therefore, letters of administration were never issued.  He was never his late wife’s personal representative under Pennsylvania law.  The one year statute of limitations began to run upon the filing of a suggestion of death on July 27, 2007.  Fed. R. Civ. P. 25(a) provides for substitution in the event of a death of a party when the claim is not extinguished.  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.  The court may enlarge the 90-day period if a motion for an extension of time is filed prior to the expiration of the 90-day time frame.  The court may grant a motion for an extension of time after the 90-day time frame has expired only upon a showing of “excusable neglect.”

The Magistrate Judge did not believe that the former counsel’s misrepresentation, or the later counsel’s failure to discover that misrepresentation, constituted excusable neglect.  Rather, the Magistrate Judge seemed quite irked, and vacated his October 25, 2007 ab initio.  The upshot of vacating that order ab initio is that there had not been a proper plaintiff in the action since Ms. Spiese died more than six years earlier.  Not only did this unfortunate failure violate Fed. R. Civ. P. 25(a), it violated the MDL CMO.  That CMO provided that “plaintiff’s counsel shall initiate or cause to be initiated proceedings to open an estate and/or obtain the appointment of a personal representative for plaintiff within thirty (30) days of the plaintiff’s death….”

There is no doubt that the abatement of the case was hard cheese for the estate.  But “[c]lients are ultimately responsible for the acts and/or omissions of their attorney.”  Id. at *4.  To be sure, dismissal on procedural grounds “is disfavored in the Sixth Circuit” [and that is probably the preload everywhere] while at the same time committed to “the sound discretion of the court.”  To the ears of most flint-hearted, battle-scarred defense attorneys, this all sounds like a formulation leading to some sappy grant of a second, or third, chance to a hapless plaintiff.  But not here.  The district judge viewed the basic question in the case as why the new plaintiff attorney took “nearly four (4) years since he became the attorney of record to determine that Ms. Spiese’s estate never had been opened, that having failed to open the estate Mr. Spiese was not his late wife’s personal representative under Pennsylvania law and that, as a consequence of these two factors, there had not been a proper plaintiff in this case since Ms. Spiese died.”  Id.  The court understood the clear intent of the CMO to be that plaintiffs’ counsel would keep in touch with their clients, especially inasmuch as the MDL involved plaintiffs suffering from cancer, and thus “some of them could be expected to die.”  Id.  At a minimum, the new attorney had a duty to inquire.  He apparently did not do so.  What’s worse for that new attorney, he had apparently done some things in the MDL that the court interpreted to manifest “a spotty record of keeping in touch with his clients.”  Id. at *5.  The court concluded that the new attorney had a standard operating procedure of failing to keep in touch with his clients.  That SOP makes the new attorney’s conduct knowing, willful, and, ultimately, unforgivable.

The last refuge for an attorney caught in the cross-hairs of a procedural default is to argue that the other side was not prejudiced, and that the court should cut some slack.  This court was not cutting any slack.  To the extent that the defendant had to commit its resources to litigate an issue resulting from the plaintiff lawyer’s failure to know what is going on in his cases, the defendant was been prejudiced.  Further, to “the extent that discovery in this case has been held in abeyance pending a resolution of this issue, remand will be delayed even longer.”   Id.  Moreover, the defendant would have to complete discovery in this case at a time when it had begun to shift its resources to discovery to another group of cases.  This was not a case of no harm, no foul.  Since the failure to ensure that there was a proper plaintiff was clear, inexcusable, and expensive, the court imposed the “ultimate sanction” of dismissal with prejudice.   Id.

This is all very bad news for the estate and for the attorneys.  You won’t have to lean in very far to hear “whispering humbleness.”  By the way, this is not the first time that Aredia-Zometa plaintiffs have had, er, issues with the filing of suggestions of death.  See here and here for example.

In the meantime, when you research the background of the plaintiff, do not limit yourself to the medical records.  Bankruptcy law, criminal law, and trust and estates law can all end up being powerful allies.