Aredia®/Zometa®; MDL court recommends dismissal of another case, noting one more instance of plaintiffs' counsel's "willful neglect of his clients."

06/24/13

TN

M.D. Tenn. -- United States District Court for the Middle District of Tennessee

Complex Litigation

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On June 24, 2013, Magistrate Judge Joe B. Brown issued a Report and Recommendation accepting Novartis Pharmaceuticals Corporation’s arguments and recommending dismissal pursuant to Rule 25 of the Federal Rules of Civil Procedure in the Aredia®/Zometa® case, Ramsey v. Novartis Pharmaceuticals Corporation, No. 3:06-cv-00864 (M.D. Tenn. June 24, 2013).  The court determined that purported plaintiff’s counsel’s willful conduct, involving his failure to properly substitute the deceased plaintiff in the nearly seven years since she died, justified dismissal.

Plaintiff Hilda Ramsey died in August 2006.  In December 2006, Philip Miller of Beatie and Osborn LLP (now Osborn Law, P.C.) represented that “Suzanne Ramsey, the personal representative of Hilda Ramsey’s estate” would be substituted by way of a Rule 25(a) motion for substitution so that she might continue the lawsuit.  This suggestion was misleading on three fronts: first, “Suzanne Ramsey’s” name is in fact Sue Ann Ramsey; second, Sue Ann Ramsey was not a personal representative of her mother Hilda Ramsey’s estate; and finally, the required motion for substitution did not follow the suggestion within the 90-day time limit mandated by Rule 25.  Instead, plaintiff’s counsel Daniel Osborn filed the motion for substitution six years later.  This belated motion not only sought to appoint an additional and previously unnamed daughter, Sally McConnell, as plaintiff, it was also prompted by a letter Novartis sent to Mr. Osborn informing him that his failure to substitute a live plaintiff within Rule 25’s 90-day timeline was cause for dismissal.

The day after plaintiff’s counsel filed the belated motion for substitution, Novartis filed a motion to dismiss and informed the court of the many errors committed by plaintiff’s counsel regarding the substitution of the deceased original plaintiff.  Over the next five months, Novartis and plaintiff’s counsel submitted multiple filings in which the following grounds for dismissal were made apparent: (1) Ms. McConnell and Ms. Ramsey first attempted to probate their mother’s will in August 2011, five years after their mother’s death and long after the 30-day time limit imposed by state law, which disqualifies them as proper personal representatives; (2) Ms. McConnell and Ms. Ramsey both submitted sworn statements to the probate court that their mother’s lawsuit against Novartis was worth $500, far short of the $75,000 amount in controversy required for federal court jurisdiction; and (3) Mr. Osborn’s claim that the 90-day time limit was never triggered because he failed to properly serve Ms. McConnell and Ms. Ramsey was meritless because he became their lawyer in January 2007, at the latest, and, accordingly, they did not require the service Mr. Osborn asserted that he failed to provide.

On June 24, 2013, the court denied the motion for substitution and granted Novartis’s motion for dismissal, holding that Mr. Osborn’s contention that his failure to properly serve the 2006 suggestion of death on Ms. Ramsey and Ms. McConnell was “without merit.”  Order at 7, 9.  After disposing of that argument, the court went on to determine that Novartis was correct that the December 2012 motion for substitution was five and a half years late, and should be dismissed unless Mr. Osborn could demonstrate excusable neglect.  Order at 9.  After determining that “Mr. Osborn offer[ed] nothing to support his position that the 5 ½ year delay was due to excusable neglect,” the court held that the motion for substitution must be denied.  Order at 10.

Despite noting that dismissal on procedural grounds is disfavored, the court found the following facts justified dismissal: “Mr. Osborn’s failure here stems from what can be best described as an emerging pattern of Mr. Osborn’s willful neglect of his clients,” and “fault must fall to Mr. Osborn for failing to comply with [the] requirements” of Rule 25.  Order at 13.  The court went on to conclude that “Mr. Osborn continues to run afoul of the procedures that pertain to substitution following the death of his clients, the requirement to open the deceased client’s estate where required by state law, and the need to have a proper party appointed as the deceased’s personal representative in matters pertaining to their estate.” Order at 13.  Determining that Mr. Osborn had full knowledge of the requirements of Rule 25 and that his disregard for court resources indicated a need for drastic sanctions, the court recommended that the case be dismissed.  Order at 14.

This Report and Recommendation is the latest in a string of similar decisions in the Aredia®/Zometa® litigation based on Rule 25 in both the federal MDL and other federal courts around the country.  E.g., J. Wilson v. Novartis Pharm. Corp., No. 4:12-cv-684-A, 2013 WL 593895 (N.D. Tex. Feb. 15, 2013); Kathleen Wilson v. Novartis Pharm. Corp., 3:06-cv-0966, MDL ECF No. 6664 (M.D. Tenn. May 13, 2013); Report and Recommendation, Spiese v. Novartis Pharm. Corp., 3:06-cv-00858, MDL ECF 6630 (M.D. Tenn. May 3, 2013); McDaniel v. Novartis Pharm. Corp., No. 2:08–CV–02088, 2012 WL 32608 (W.D. Ark. Jan. 6, 2012); and Cole v. Novartis Pharm. Corp., 3:06-cv-00506, MDL ECF No. 6729 (M.D. Tenn. June 10, 2013).

Novartis is represented in this matter by partners Joe G. Hollingsworth and Katharine R. Latimer.

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