Novartis wins dismissal in Middle District of Florida Zometa® / Aredia® case.
M.D. Fla. -- United States District Court for the Middle District of Florida
On February 4, 2013, the U.S. District Court for the Middle District of Florida granted Novartis Pharmaceuticals Corporation’s motion to dismiss plaintiff’s claims pursuant to Rule 25 of the Federal Rules of Civil Procedure in McGuinness v. Novartis Pharm. Corp., --- F.R.D. ----, 2013 WL 425331, 84 Fed.R.Serv.3d 1023, M.D. Fla., February 04, 2013 (NO. 6:12-CV-141-ORL).
Plaintiff James McGuinness died in April 2012. In October 2012, defendant Novartis filed a Suggestion of Death pursuant to Fed. R. Civ. P 25, after plaintiff’s counsel failed to do so. Novartis served Mr. McGuinness’s wife with the Suggestion of Death, in accordance with the Federal Rules. Despite acknowledging his client’s death in a filing on October 30, 2012, and despite a November 2012 Court Order requiring plaintiff’s counsel to substitute the plaintiff through a formal motion, counsel for Mr. McGuinness never filed a motion for substitution. Accordingly, 90 days after service of the Suggestion of Death without a plaintiff having been substituted, Novartis filed a motion to dismiss.
In granting Novartis’s motion to dismiss, Judge Anne C. Conway held that the failure of any party to make a motion for substitution for deceased plaintiff James McGuinness within the 90 day period proscribed by Fed. R. Civ. P. 25 rendered dismissal appropriate. Plaintiff’s counsel opposed Novartis’s motion claiming excusable neglect because he “inadvertently” did not realize that a motion to substitute had not been filed, difficulty in communicating with the decedent’s widow, and the fact that he is jointly handling 200 related cases. Judge Conway rejected these arguments, finding that the failure of plaintiff’s counsel to move to substitute within the proscribed period did not constitute “excusable neglect” because plaintiff’s counsel “is well aware of Rule 25 and its implications,” and “the ability of Plaintiff’s counsel to manage his caseload is not a sufficient reason to disregard the Federal Rules of Civil Procedure.”
In McGuinness, deceased plaintiff James McGuinness alleged that he developed osteonecrosis of the jaw (“ONJ”) as a result of his use of Aredia® and Zometa®, prescribed to treat his metastatic prostate cancer. This case was not part of the ongoing Aredia® and Zometa® multidistrict litigation, In re: Aredia® and Zometa® Prods. Liab. Litig., No. 3:06-MD- 01760 (TJC) (M.D. Tenn.), because the case was filed after the Judicial Panel on Multidistrict Litigation suspended the transfer of all similar Zometa®/Aredia® federal cases to the MDL.