Just about three months ago, we blogged about Rule 25 dismissals in the Bair Hugger MDL, and today we bring you more of the same from Taxotere.  Federal Rule of Civil Procedure 25 provides that “[i]f a party dies . . . the court may order substitution of the proper party.”  Rule 25 goes on to set a time limit for accomplishing the substitution: 

A motion for substitution may be made by any party or by the decedent’s successor or representative. 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.

FRCP 25(a)(1).  The “statement noting the death” is typically referred to as a “suggestion of death.”  It is not a complicated filing.  Usually just a single page notifying the court that a party has died, the date of death, and advising of Rule 25’s requirements.  We say “party,” but in the drug and device litigation world, we are really talking about plaintiffs.  Plaintiffs often who are older or who were receiving medical treatments for pre-existing illnesses.  Given the simplicity of the process, it seems like it should be an easy thing for plaintiffs’ counsel to do.  A client passes, you file a suggestion of death, you talk to their family, if they want to continue with the action, you get a representative of the estate appointed, and finally you move to substitute.  But in mass tort litigation, that first step—being aware that your client has died—can be a major hurdle for plaintiffs’ counsel. 

In our Bair Hugger post we asked:  “How do plaintiff lawyers misplace their clients?”  The reality is, it happens all the time because of the difficulty they have keeping track of hundreds of clients.  Mind you, on the defense side we are busy keeping track of every plaintiff represented by every lawyer running into the thousands.  Yet somehow, we seem to be more aware of when a plaintiff dies than their own counsel. 

Which brings us back to Rule 25’s 90-day deadline.  Since filing a suggestion of death starts the clock running on the time to move to substitute a proper party, the suggestions or notices are often filed by defendants.  But sometimes even clearing that first hurdle for plaintiffs is not enough.  That is what happened in In re Taxotere Docetaxel Products Liability Litigation, 2024 U.S. Dist. LEXIS 200763 (E.D. La. Nov. 5, 2024).

Defendant filed and served suggestions of death for twenty plaintiffs who had passed away several years earlier.  Plaintiffs took no action in response, not even a request for more time to make a proper party substitution.  So, several months later, defendant moved to dismiss.  Seven plaintiffs opposed the motion and one requested more time. 

The seven oppositions were based on an alleged deficiency in defendant’s suggestions of death.  Rule 25(a)(3) provides that a suggestion of death “must be served on the parties as provided in Rule 5 and on non-parties as provided in Rule 4.”  While the rule itself does not specify which non-parties need to be served, most circuits to have considered the issue have ruled that a valid Rule 25 suggestion of death must be served on the personal representative of the estate, “even where it is difficult to determine who the personal representative is.”  Id. at *8.  That means when a defendant is filing a suggestion of death, it is best to serve the decedent’s heirs or those with a “significant financial interest” in the outcome of the case. 

Defendant in In re Taxotere did just that.  It served the relevant non-parties with the suggestion of death via certified mail which is a form of service permitted under Louisiana’s long-arm statute.  Id. at *10.  Plaintiffs argued that was not personal service as required by Rule 4.  But Rule 4 allows service by various means, one of which is by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.”  Rule 4(e)(1). 

Plaintiffs tried to read into Rule 25 a requirement of personal service on non-parties that simply does not exist.  As the court noted, plaintiff’s proposed strict reading of the rules, “seems unnecessary, particularly in light of the . . . difficulties with locating the proper parties to substitute in as plaintiff.”  Id. at *12.  Rule 25 merely requires service “as provided in Rule 4.”  Since Rule 4 allows service in accordance with state law and defendant followed state law in serving the non-parties via mail, that service was valid and began the 90 days for plaintiffs to substitute a proper party. 

Because plaintiffs did not demonstrate excusable neglect that would warrant allowing more time for the substitutions, and given how long some of the plaintiffs had already been deceased, the court dismissed nineteen of the twenty plaintiffs.  The final plaintiff actually filed a motion to substitute that mooted the motion to dismiss.

This order and that entered by the Bair Hugger court are prime examples of plaintiffs’ counsel failing in MDLs to do even the absolute minimum to keep cases active.  Is it surprising?  Not to us.  We know most MDL inventories are full of garbage that needs to be cleared out.  So, we appreciate when district courts use the rules to do a little spring cleaning, even in November.