CHARLESTON DIVISION
EMMA MCCOY and STEVE MCCOY,
Plaintiffs,
v. Civil Action No. 2:14-cv-09425
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On February 8, 2019, a Suggestion of Death was filed by plaintiffs’ counsel suggesting the death of Emma McCoy during the pendency of this civil action. [ECF No. 12]. On May 3, 2019, plaintiffs’ counsel filed a Motion to extend time to file the Suggestion of Death to August 8, 2019. [ECF No. 14]. On August 20, 2019, defendants filed a Motion to Dismiss for failure to substitute the deceased party. [ECF No. 15]. Plaintiff has not responded to this motion. Pursuant to Federal Rule of Civil Procedure 25(a) and Pretrial Order (“PTO”) # 308 (Requirements for Counsel to Deceased Plaintiffs) filed in In re: Ethicon, Inc. Pelvic Repair System Products Liab. Litig., 2:12-md-2327 [ECF No. 6218], the time to substitute a proper party for the deceased party has expired, and there has been no motion to substitute the deceased party. I. Background This action resides in one of seven MDLs originally assigned to me by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical This particular case involves Georgia co-plaintiffs, one of whom, Ms. McCoy, was implanted at Henry Medical Center in Stockbridge, Georgia with the TVT-S, a mesh product manufactured by Ethicon, Inc. Short Form Compl. [ECF No. 1] ¶¶ 1-11. On February 8, 2019, plaintiffs’ counsel filed a Suggestion of Death noting that Ms. McCoy died during the pendency of this action [ECF No. 12].
II. Legal Standards a. Rule 25 Rule 25 governs the process for substituting or dismissing a case after a plaintiff has died. Fed. R. Civ. P. 25. The rule provides: If a party dies and the claim is not extinguished, the court may order substitution of the proper party. 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.
Fed. R. Civ. P. 25(a)(1). This rule also states that, “[a] motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.” Fed. R. Civ. P. 25(a)(3). The above-mentioned 90-day clock does not begin to run until the decedent’s successors or representatives are served with a statement noting death. 769 F.2d 958, 962 (4th Cir. 1985). If the successor or representative is party to the action, service must be made on the party’s attorney. Fed. R. Civ. P. 5(b)(1). Whether a claim is extinguished is determined by the substantive law of the jurisdiction in which the cause of action arose. 436 U.S. allows the action to survive a party’s death). Traditionally, state statutes expressly state whether a claim survives a deceased party and to whom survivorship is allowed. at 589. If a case includes multiple plaintiffs, the death of one plaintiff does not cause an abatement of the claims for the remaining parties. Fed. R. civ. P. 25(a)(2) (“After a party’s death, if the right sought to be enforced survives only to or against
the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties.”). b. PTO # 308 In Pretrial Order (“PTO”) # 308, the court required that “[f]or any case in which plaintiff’s counsel subsequently learns of the death of his or her client, plaintiff’s counsel shall file the suggestion of death within 120 days of counsel’s learning of the
death.” Pretrial Order # 308, p. 3, 2:12-md-2327 [ECF # 6218]. In addition, the court directed that within the same 120-day period, plaintiff’s counsel must serve the suggestion of death on the parties and appropriate nonparties as described above, and file proof of such service with the court. The ninety-day substitution period provided by Rule 25(a) will commence upon the filing and proper service of the suggestion of death. In the event that plaintiff’s counsel fails to file the suggestion of death and properly serve it on the appropriate nonparties, the ninety-day substitution period will commence 120 days after the entry of this Order or 120 days after counsel’s learning of the death of his or her client, whichever is later.
at 3–4.
While this burden is on plaintiffs’ counsel, defendants’ counsel may also file a suggestion of death on the record. “The filing of the suggestion of death by defendant’s counsel places plaintiff’s counsel on notice of his or her client’s death, and therefore suggestion of death on the appropriate nonparties.” at 4. If they should fail to serve the suggestion of death, the ninety-day substitution period commences 120 days after defendants’ counsel filed the suggestion of death. c. Choice of Law
If a plaintiff files her claim directly in the MDL in the Southern District of West Virginia, the court consults the choice-of-law rules of the state where the plaintiff was implanted with the product. 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“For cases that originate elsewhere and are directly filed into the MDL, the court will follow the better-reasoned authority that applies the choice-of-law rules of the originating jurisdiction, which in our case is the state in which the plaintiff was implanted with
the product.”). Ms. McCoy underwent implantation surgery in Georgia. Georgia applies the rule of to resolve conflicts-of-law issues. , 621 S.E.2d 413, 414 (Ga. 2005). Under this traditional rule, a tort action is governed by the substantive law of the state where the tort was committed. Here, Ms. McCoy lived in Georgia and had the TVT-S implanted in Georgia. Thus, I apply Georgia’s substantive law to this case. III. Analysis
The plaintiffs’ counsel filed a Suggestion of Death on February 8, 2019, noting that Ms. McCoy died while this litigation was pending. [ECF No. 12]. On May 3, 2019, plaintiffs then requested an extension of time until August 8, 2019, to notify successors about the suggestion of death. [ECF No. 14]. While this Motion is still
pending, the record does not reflect any further efforts by plaintiffs’ counsel to comply to Rule 25(a)(1) and PTO # 308, the time for substituting any party or non-party for the deceased plaintiff has passed. Rule 25(a)(1) provides the sole procedural device allowing decedent’s successor
or representative to step into Ms. McCoy’s shoes and pursue litigation on her behalf. Fed. R. Civ. P. 25(a)(1) (“A motion for substitution may be made by any party or by the decedent’s successor or representative.”). On May 3, 2019, plaintiffs’ counsel filed a Motion to extend time to file the Suggestion of Death to August 8, 2019. [ECF No. 14]. While this Motion to extend time has not been ruled on, the record does not reflect any attempt by plaintiffs to comply with the substitution requirements of Rule
25(a)(1) prior to or after August 8, 2020. Accordingly, the court ORDERS that defendants’ Motion to Dismiss [ECF No. 15] is GRANTED in part insofar as the claims of Emma McCoy are DISMISSED without prejudice.
Free access — add to your briefcase to read the full text and ask questions with AI
CHARLESTON DIVISION
EMMA MCCOY and STEVE MCCOY,
Plaintiffs,
v. Civil Action No. 2:14-cv-09425
ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On February 8, 2019, a Suggestion of Death was filed by plaintiffs’ counsel suggesting the death of Emma McCoy during the pendency of this civil action. [ECF No. 12]. On May 3, 2019, plaintiffs’ counsel filed a Motion to extend time to file the Suggestion of Death to August 8, 2019. [ECF No. 14]. On August 20, 2019, defendants filed a Motion to Dismiss for failure to substitute the deceased party. [ECF No. 15]. Plaintiff has not responded to this motion. Pursuant to Federal Rule of Civil Procedure 25(a) and Pretrial Order (“PTO”) # 308 (Requirements for Counsel to Deceased Plaintiffs) filed in In re: Ethicon, Inc. Pelvic Repair System Products Liab. Litig., 2:12-md-2327 [ECF No. 6218], the time to substitute a proper party for the deceased party has expired, and there has been no motion to substitute the deceased party. I. Background This action resides in one of seven MDLs originally assigned to me by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical This particular case involves Georgia co-plaintiffs, one of whom, Ms. McCoy, was implanted at Henry Medical Center in Stockbridge, Georgia with the TVT-S, a mesh product manufactured by Ethicon, Inc. Short Form Compl. [ECF No. 1] ¶¶ 1-11. On February 8, 2019, plaintiffs’ counsel filed a Suggestion of Death noting that Ms. McCoy died during the pendency of this action [ECF No. 12].
II. Legal Standards a. Rule 25 Rule 25 governs the process for substituting or dismissing a case after a plaintiff has died. Fed. R. Civ. P. 25. The rule provides: If a party dies and the claim is not extinguished, the court may order substitution of the proper party. 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.
Fed. R. Civ. P. 25(a)(1). This rule also states that, “[a] motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.” Fed. R. Civ. P. 25(a)(3). The above-mentioned 90-day clock does not begin to run until the decedent’s successors or representatives are served with a statement noting death. 769 F.2d 958, 962 (4th Cir. 1985). If the successor or representative is party to the action, service must be made on the party’s attorney. Fed. R. Civ. P. 5(b)(1). Whether a claim is extinguished is determined by the substantive law of the jurisdiction in which the cause of action arose. 436 U.S. allows the action to survive a party’s death). Traditionally, state statutes expressly state whether a claim survives a deceased party and to whom survivorship is allowed. at 589. If a case includes multiple plaintiffs, the death of one plaintiff does not cause an abatement of the claims for the remaining parties. Fed. R. civ. P. 25(a)(2) (“After a party’s death, if the right sought to be enforced survives only to or against
the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties.”). b. PTO # 308 In Pretrial Order (“PTO”) # 308, the court required that “[f]or any case in which plaintiff’s counsel subsequently learns of the death of his or her client, plaintiff’s counsel shall file the suggestion of death within 120 days of counsel’s learning of the
death.” Pretrial Order # 308, p. 3, 2:12-md-2327 [ECF # 6218]. In addition, the court directed that within the same 120-day period, plaintiff’s counsel must serve the suggestion of death on the parties and appropriate nonparties as described above, and file proof of such service with the court. The ninety-day substitution period provided by Rule 25(a) will commence upon the filing and proper service of the suggestion of death. In the event that plaintiff’s counsel fails to file the suggestion of death and properly serve it on the appropriate nonparties, the ninety-day substitution period will commence 120 days after the entry of this Order or 120 days after counsel’s learning of the death of his or her client, whichever is later.
at 3–4.
While this burden is on plaintiffs’ counsel, defendants’ counsel may also file a suggestion of death on the record. “The filing of the suggestion of death by defendant’s counsel places plaintiff’s counsel on notice of his or her client’s death, and therefore suggestion of death on the appropriate nonparties.” at 4. If they should fail to serve the suggestion of death, the ninety-day substitution period commences 120 days after defendants’ counsel filed the suggestion of death. c. Choice of Law
If a plaintiff files her claim directly in the MDL in the Southern District of West Virginia, the court consults the choice-of-law rules of the state where the plaintiff was implanted with the product. 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“For cases that originate elsewhere and are directly filed into the MDL, the court will follow the better-reasoned authority that applies the choice-of-law rules of the originating jurisdiction, which in our case is the state in which the plaintiff was implanted with
the product.”). Ms. McCoy underwent implantation surgery in Georgia. Georgia applies the rule of to resolve conflicts-of-law issues. , 621 S.E.2d 413, 414 (Ga. 2005). Under this traditional rule, a tort action is governed by the substantive law of the state where the tort was committed. Here, Ms. McCoy lived in Georgia and had the TVT-S implanted in Georgia. Thus, I apply Georgia’s substantive law to this case. III. Analysis
The plaintiffs’ counsel filed a Suggestion of Death on February 8, 2019, noting that Ms. McCoy died while this litigation was pending. [ECF No. 12]. On May 3, 2019, plaintiffs then requested an extension of time until August 8, 2019, to notify successors about the suggestion of death. [ECF No. 14]. While this Motion is still
pending, the record does not reflect any further efforts by plaintiffs’ counsel to comply to Rule 25(a)(1) and PTO # 308, the time for substituting any party or non-party for the deceased plaintiff has passed. Rule 25(a)(1) provides the sole procedural device allowing decedent’s successor
or representative to step into Ms. McCoy’s shoes and pursue litigation on her behalf. Fed. R. Civ. P. 25(a)(1) (“A motion for substitution may be made by any party or by the decedent’s successor or representative.”). On May 3, 2019, plaintiffs’ counsel filed a Motion to extend time to file the Suggestion of Death to August 8, 2019. [ECF No. 14]. While this Motion to extend time has not been ruled on, the record does not reflect any attempt by plaintiffs to comply with the substitution requirements of Rule
25(a)(1) prior to or after August 8, 2020. Accordingly, the court ORDERS that defendants’ Motion to Dismiss [ECF No. 15] is GRANTED in part insofar as the claims of Emma McCoy are DISMISSED without prejudice. Plaintiffs’ Motion to extend time [ECF No. 14] is DENIED as moot. While failure to comply with Rule 25(a)(1) prevents Mr. McCoy from pursuing
claims on Ms. McCoy’s behalf, Rule 25(a)(2) does not prevent Mr. McCoy from pursuing claims on his own behalf. Fed. R. Civ. P. 25(a)(2) (“After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties.”). In this matter, only Mr. McCoy’s claim for loss of consortium remains. While Mr. McCoy’s claim for loss of consortium is derivative of Ms. McCoy’s claim under Georgia
Law, , 653 S.E.2d 82, 85 (Ga. Ct. App. 2007), a dismissal for failure of the injured spouse to act in a timely manner does not automatically dismiss a claim for loss of consortium, see Huddle v. Heindel, 821 8.E.2d 61, 68 (Ga. Ct. App. 2018) (the running of statute of limitations on the underlying claim does not bar a derivative loss of consortium claim); see also Beamon v. Mahadevan, 766 S.E.2d 98, 101 n.8 (Ga. Ct. App. 2014). Accordingly, defendants’ Motion to Dismiss [ECF No. 15] is DENIED in part to the extent defendants seek an order dismissing Mr. McCoy.
IV. Conclusion
In summary, it is ORDERED that defendants’ Motion to Dismiss [ECF No. 15] is GRANTED in part and DENIED in part. The claims of the plaintiff Emma McCoy are DISMISSED without prejudice pursuant to Rule 25(a)(1) and PTO # 308. Plaintiffs’ Motion to Extend Time [ECF No. 14] is DENIED as moot. The court DIRECTS the Clerk to send a copy of this Order to counsel of record any unrepresented party. E > October 28, 2020 Ip C 6G oem STATES DISTRICT JUDGE