…You know somebody’s getting hammered. You just hope it’s the other side.
In Wilson v. Novartis Pharmaceuticals Corp., 2013 WL 593895 (N.D. Tex. Feb. 15, 2013), thankfully it was. The first line was a quote from Marmion: "Oh, what a tangled web we weave when first we practice to deceive!" We first heard that line in middle school, from a teacher who caught a miscreant classmate lying about failure to turn in a homework assignment.
It’s much worse when uttered by a federal judge.
Wilson was an Aredia/Zometa case – and, yes, it was pitched to us by defense counsel (Hollingsworth). But the opinion is such a stark cautionary tale that we would have blogged about it anyway (assuming we otherwise found out).
Here’s what happened.
The plaintiff died.
That’s of course tragic for all immediately concerned, but it is hardly something to dismiss a case over. Death is a fact of life, and the court system has evolved standard procedures for dealing with the mid-stream death of a party to litigation.
The first step is to file what’s quaintly called a "suggestion of death." That was done in Wilson, in February, 2008, less than three months after the unfortunate event, and that was done perfectly properly. 2013 WL 593895, at *1.
But that was in 2008. It’s now 2013. The ensuing five years were, to use another literary analogy, a Comedy of Errors, or perhaps a tragedy.
For reasons that remain obscure, or at least disputed, after filing a proper suggestion, the plaintiff side failed to follow through in a similarly proper fashion.
First, the substitution was filed late. Id. at *2.
More importantly, the substitution was representative in nature – on behalf of two supposed "executors" of the plaintiff’s estate. But no court order reflecting that appointment was attached. Id. at *3.
That’s because in this respect the plaintiff’s motion was simply untrue. No executors had been appointed, or even sought.
But we’re getting ahead of ourselves. The magistrate judge handling routine matters in the case (it was part of an MDL) let the plaintiffs’ (we switch to plural now) seemingly formalistic errors slide and routinely granted the motion. Id. at *3. So the (later revealed as nonexistent) representatives of the plaintiff’s estate were substituted. Id.
Years passed. The case was eventually remanded from the MDL. Back in Texas, somebody actually paid attention. The transferor judge (or, more likely, a sharp-eyed clerk) noticed the lack of a supporting court order for the substitution and ordered that this defect be cured. Id.
Time to fess up – but no….
As the opinion in Wilson states:
Rather than to confess their earlier deceptions, [substituted plaintiffs], acting through [a] New York attorney. . ., filed on November 5, 2012, a motion asking for an additional fourteen days to comply with the October 22, 2012 order, giving two reasons for the requested extension, first that counsel's office facilities had been interrupted by Hurricane Sandy and, second, that "[the local Texas attorney], who is assisting Plaintiffs in procuring the necessary documents, is out of town until November 8, 2012." The message could not have been clearer from [substituted plaintiffs] and their counsel − the documents they were ordered to file were in existence and available, but they simply had not been able to obtain them timely for the reasons expressed in the motion asking for additional time.
2013 WL 593895, at *4 (record citations omitted).
On those representations, plaintiffs in Wilson received more time – not once, but twice – each time implying that the documentation in question existed (when it did not) and that problems with local counsel were the only holdup. Id.
In other words, the dog ate my homework.
At the end of 2012 – in a third motion for more time, and more than five years after the original plaintiff died – counsel finally came clean:
The December 14 motion for additional time revealed that [substituted plaintiffs], and their counsel had finally obtained an attorney in Texas who would be willing to file, and had filed, in a Texas probate court, a motion asking that [deceased plaintiff’s] will be admitted to probate. . . . The application for probate was not filed until December 11, 2012. In the December 14 motion, [substituted plaintiffs], acting through [counsel], admitted the falsity of the representation they had made to the Multidistrict Litigation court that they were personal representatives of [the] estate. . . . The movants went on to add that, inasmuch as no personal representative of [plaintiff’s] estate could be appointed, "[i]nstead, Plaintiffs must file an application to admit [plaintiff’s] will to probate. . . ."
Wilson, 2013 WL 593895, at *5. The reason given for five years of delay (after the fact): nobody wanted to bother because the "assets" of the estate "were of nominal value." Id. This excuse, of course, directly contradicted the original complaint, which had pleaded damages in excess of $75,000 as required by statute to claim diversity juristiction in federal court. Id. at *6.
The court, at least, was able to correct the deception about the value of the estate’s assets. After five years of "deceptions practiced on this court and the predecessor courts," id. at *5, the court ordered the erroneously entered orders in Wilson stricken and deemed "unfiled."
Rather than giving up, however, plaintiffs’ counsel doubled down. They sought to vacate the order striking the improperly obtained court orders. Id. at *8. They claimed that, five years after the fact, they had cured the original defect (probating the will) so all of their intervening deception should simply be ignored. Id. Not to be outdone, the defendant responded by cross-moving to dismiss for lack of subject matter jurisdiction (based on the "nominal value" representation) for lack of jurisdictional amount. Id. at *10. Given the passage of time, it is likely that the statute of limitations would bar refiling.
Not a good move by plaintiffs. Thus, the whole sorry Wilson tale found its way into a formal judicial opinion.
First, the motion to vacate was denied. The court found that the plaintiffs’ arguments were "game playing." Wilson, 2013 WL 593895, at *10 ("[m]ost of their arguments in support of that motion simply are not on point, and appear to be designed more to mislead than to provide rational argument directed to the true reasons why those rulings were made").
Second, the motion to dismiss was granted – but on the merits, not for lack of jurisdiction. Plaintiffs never withdrew their original, now-stricken and "unfiled," motion to substitute, and never sought an extension of the original deadline (from 2008). Id. at *11. That motion being no longer in existence, there was no proper plaintiff. Just as dead men tell no tales, they also file no lawsuits.
Amazingly, as we’ve mentioned before, A/Z plaintiffs have already screwed up suggestions of death twice, in McGuinnes v. Novartis Pharmaceuticals Corp., ___ F. Supp.2d ___, 2013 WL 425331 (M.D. Fla. Feb. 4, 2013), and McDaniel v. Novartis Pharmaceuticals Corp., 2012 WL 32608 (W.D. Ark. Jan. 6, 2012).
This leads us to a final point about Wilson, and why we think it's important enough to merit a post. As questionable as the other side’s handling of suggestions of death may have been in that case (and in McGuinnes and McDaniel previously), we can’t think of any good reason why shoddy practice of this sort should be peculiarly widespread in this mass tort, as opposed to any other. Why should the quality of representation be any different?
Rather, we suspect that defense counsel in A/Z have been particularly diligent in ferretting out these fatal flaws in the other side’s cases. That should be a lesson to the rest of us – check each and every suit filed to make sure that there’s either: (1) a genuine living, breathing plaintiff, or (2) a properly substituted representative. Crossing t’s and dotting i’s is particularly important, and thus potentially particularly beneficial, in this area.
That’s because (with apologies to Gertrude Stein) a win is a win is a win.