Repko v. Our Lady of Lourdes Medical Center, Inc., 2020 N.J. Super. LEXIS 204 (N.J. Super. App. Aug. 13, 2020), is not a new case, but it was new to us when learned co-counsel brought it to our attention as support for getting rid of a case from a crap-ridden MDL inventory. We say “crap-ridden” with every ounce of charity we can muster. It is astonishing how many cases parked in the typical MDL lack such niceties as product identification or a valid injury or a living plaintiff.
What’s the problem with that last category? Lawsuits can address injuries suffered by the dead or losses sustained by others as a result of a death, right? Sure. We call those wrongful death cases. Or survivor actions. They are brought by the estate of the decedent. They are not actually brought by the decedent. True enough, a plaintiff might die after filing a lawsuit, in which case there must be a valid substitution. See N.J. Rule 4:34 and Fed. R. Civ. P. 25. But a lawsuit filed by someone who is already dead is not a valid lawsuit.
Consider the Repko case. A woman fell on the steps of a medical center and suffered injuries. She hired a lawyer. The lawyer took time to consider filing a lawsuit. In general, we’d say that taking time for such consideration is a good move. But the lawyer took a lot of time and did not file the lawsuit until nine months after the woman died from causes unrelated to the fall. The lawyer did not know that the client was dead. The case was filed shortly before expiration of the statute of limitations. That last minute timing is not at all unusual, but in this case it turned out to be, um, fatal.
The defendant, after getting an extension, answered the complaint and served discovery. The plaintiff lawyer attempted to contact the client, only then discovering she had expired. By then, the statute of limitations had also expired. The plaintiff lawyer sought consent from the defendant to file an amended complaint on behalf of the woman’s estate. The defendant said no thanks, took the position that the complaint was a nullity because it had been filed by someone already dead for many months, and filed a motion to dismiss.
The plaintiff argued that the amended complaint should relate back to the original complaint and that the statute of limitations should have been equitably tolled. The trial judge agreed with the plaintiff, observing that if death had occurred one hour before filing the complaint, not allowing relation back would mean “that’s the end of the case,” and such a severe result should not “depend  upon those types of fortuities.” The trial judge granted the estate’s motion to amend the complaint and denied the defendant’s motion to dismiss.
The appellate court took a more hard-headed, and correct, approach. The issue was simply one of standing. The plaintiff “necessarily concede[d] that a dead person cannot sue in our courts and cannot continue a suit filed prior to death.” Back in 1945, a sagacious New Jersey judge observed that “an earthly court has no jurisdiction over the dead. Only the living can litigate here.” That point seems self-evident. But for anybody who has had the pleasure of being sued in the Garden State, it seems like a remarkable and aberrational moment of judicial restraint. New Jersey, like California and Pennsylvania, all too often seems all too ready to welcome litigation tourists. Why should it matter if those tourists hail from another existential plane, as opposed to another state?
Well, it does. The appellate court in Repko held that “[b]ecause plaintiff’s death prevented her from suing in her own behalf, the complaint filed in her name by her counsel was a nullity.” (The court, in a footnote, also doubted the ability of counsel to file the suit after the plaintiff died, inasmuch as “the attorney-client relationship ordinarily terminates on the client’s death.”). Because the complaint was a nullity, there was nothing to which the amended complaint could relate back. That is, the “relation back rule cannot cure the failure to file a valid complaint in the first instance.”
Is this an overly harsh result? Does New Jersey law set up a “death trap”? (We find it hard to discuss a New Jersey case without some sort of Springsteen reference. It is a character defect.) Not at all. In Repko, the statute of limitations did not expire until nine months after the plaintiff died. Moreover, the New Jersey legislature in 1977 passed a law that “operates to toll any statute of limitations on a claim belonging to a decedent for up to six months following death for the ‘salutary purpose of providing executors and administrators with a limited period of time after death to evaluate potential claims available to the estate.’”
That law was a straightforward means of addressing the “fortuity” that distressed the trial judge; there was no cause to resort to equitable tolling. In any event, such tolling hardly seems equitable when the fundamental problem in this case was counsel’s failure to have any contact with the client for at least ten months leading up to the filing of the complaint — for which, after a certain lamentable point, the client was “obviously not available to authorize.” Then to make matters worse, the executor waited five months after learning of the suit to send a death certificate and letters testamentary to counsel. As the Repko appellate court reasoned, “[t]heir actions do not bespeak the diligence the doctrine of equitable tolling demands.”
The bottom line is that the appellate court reversed the denial of the defendant’s motion to dismiss the complaint as barred by the statute of limitations and remanded for entry of an order dismissing the complaint with prejudice.
What is the bottom line for fellow defense hacks bedeviled by an MDL mountain of garbage cases? You will find more than a few cases in which the named plaintiff has departed this vale of tears. Do not simply assume that these zombie cases can be revived by a suggestion of death and substitution of parties. If the plaintiff was already in the grave when the complaint was filed – definitely a possibility in light of the level of care exercised by some case-collecting plaintiffs counsel – there might, in fact, be no cure. The case is as dead as the plaintiff.