In April 2008, the plaintiff filed a complaint against Novartis Pharmaceuticals Corporation in which she sought damages for injuries that she allegedly sustained as a result of her use of Aredia, which is used to treat hypocalcaemia and bone metastases.  Dougherty v. Novartis Pharmaceuticals Corp., No. A-0098-10 (App. Div. June 29, 2011).  The plaintiff's complaint was one of approximately 150 cases that was consolidated as part of Mass Tort 278, the Zometa/Aredia litigation.  The New Jersey Supreme Court had established that litigation as a mass tort in January 2008.  Of the 150 cases, twelve were selected to proceed with discovery but the plaintiff's case was not one of them.  However, a case management order that applied to all the mass tort cases was entered in July 2008 that required all the plaintiffs to complete a plaintiff's fact sheet ("PFS").  The plaintiff died on December 4, 2009.

In February 2010, the defendant filed a motion to dismiss the plaintiff's complaint based on the failure to provide a PFS pursuant to the aforementioned case management order.  Plaintiff's attorney, who had been in touch with the decedent's sister about substituting into the case as a party and to complete the PFS, did not oppose the motion.  The court granted the motion and dismissed the complaint without prejudice.  In June 2010, the defendant moved to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2) because it still had not received the PFS and there had not been a substitution for the plaintiff.

On the return date of the motion, the plaintiff's counsel asked for a four-week extension to have the plaintiff's sister appointed as administratrix of the estate.  The court granted that extension to enable a representative of the estate to participate in the case.  However, the court warned that if those steps were not completed it would dismiss the plaintiff's complaint with prejudice.

Those steps were not taken and in July 2010 the court granted the defendant's motion to dismiss the complaint with prejudice.  Although plaintiff's counsel had submitted the necessary paperwork to the plaintiff's sister, the court noted that nothing had been done to have an administratrix appointed for the plaintiff's estate and that no explanation had been provided for that inaction.  The court rejected plaintiff's counsel's request for another extension of time, as it stressed that one extension had already been granted and nothing had been done to proceed with the case.  Moreover, the court explained that although the plaintiff's case was not one of the mass tort’s bellwether cases, that did not mean that governing discovery obligations and court orders could be ignored.  The court concluded its decision by declaring that “‘the plaintiff has not complied with the [PFSs], that the plaintiff was deceased as of December 2009 and that there have been absolutely no articulated efforts, despite the [c]ourt allowing significant additional time, to have somebody commence the process, not even obtain letters of administration or letters of appointment but just start the process seeking to be appointed as a representative of the estate.  Absolutely nothing has appeared before the [c]ourt so that this matter is going to be dismissed with prejudice.’”

On appeal, the plaintiff argued that the trial court abused its discretion in dismissing the complaint, but the Appellate Division rejected that argument.  The Appellate Division affirmed primarily for the reasons outlined by the trial court.  In addition, the Appellate Division pointed out that the plaintiff had not presented the court with what was claimed to be a "substantially complete PFS" and stressed that "[t]he record before the judge was devoid of any evidence of counsel's compliance with the PFS requirements in the [case management order]."  Moreover, the Appellate Division explained that a deceased party's claim cannot be heard unless representatives of the party's estate become involved in the case pursuant to Rule 4:34-1, and that "[c]ounsel's failure to make decedent's sister a party pursuant to [that Rule] in and of itself precluded the possibility of ... compliance with the PFS requirement as there was no viable plaintiff of record after December 2009."