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Rapa v. Novartis Pharms. Corp.

United States District Court, E.D. Missouri, Eastern Division

October 15, 2014

JOHN RAPA, Plaintiff,

For John Rapa, Plaintiff: Todd S. Hageman, LEAD ATTORNEY, THE SIMON LAW FIRM, P.C., St. Louis, MO.

For Novartis Pharmaceuticals Corporation, Defendant: Deirdre C. Gallagher, LEAD ATTORNEY, FOLEY AND MANSFIELD, P.L.L.P., St. Louis, MO; Patrick R. Harkins, LEAD ATTORNEY, HOLLINGSWORTH, L.L.P., Washington, DC.

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This diversity matter is before the Court on Defendant Novartis Pharmaceuticals Corporation's motion to dismiss with prejudice this lawsuit filed by Plaintiff John Rapa. For the reasons set forth below, Defendant's motion to dismiss shall be granted.


On October 30, 2008, Plaintiff John Rapa (" Plaintiff" ), a Missouri resident, filed a complaint against Defendant alleging five tort claims after he developed osteonecrosis of the jaw as a side effect of Aredia, a drug manufactured by Defendant. The case was consolidated for pretrial proceedings and transferred as a part of multidistrict litigation to the Middle District of Tennessee (" the MDL court" ) on November 24, 2008.

Unfortunately, Plaintiff passed away on December 17, 2009. A suggestion of death was filed on July 1, 2010. (Doc. No. 12-4.) Plaintiff's counsel moved in the MDL court for provisional substitution of Plaintiff's wife, Jeanine Rapa (" Ms. Rapa" ). (Doc. No. 12-5.) The MDL court granted the motion for provisional substitution. (Doc. No. 12-7.) Under the MDL court's Case Management Order (" CMO" ), provisional substitutions are conditioned on " the substituted plaintiff submit[ting] to the Court prior to remand of the plaintiff's claims a copy of the Order appointing him or her as the deceased plaintiff's personal representative." (Doc. 12-3 at 5.) On September 18, 2013, Ms. Rapa, along with her three children, obtained a determination of heirship from the Probate Division of the Circuit Court of St. Louis County, Missouri. (Doc. No. 12-9 at 3-4.) She never applied in probate court to be appointed Plaintiff's personal representative nor did she ever submit to the MDL court a copy of an order appointing her as such.

Upon completion of the consolidated pretrial proceedings in the action, the MDL court remanded the case back to this Court pursuant to 28 U.S.C. § 1407(a) on March 25, 2014. (Doc. No. 8.) Ms. Rapa has never applied to become nor has she ever been appointed Plaintiff's personal representative. Consequently, the issue in this case is whether, under the MDL court's Case Management Order (" CMO" ) and Missouri state law, Ms. Rapa has standing to continue this case on Plaintiff's behalf.


Defendant argues that the Court should dismiss this action with prejudice because Ms. Rapa lacks the proper legal authority under Missouri law to prosecute this lawsuit on behalf of her husband, and because Ms. Rapa violated the express terms of the CMO issued by the MDL court. Defendant bases the motion to dismiss on the fact that Ms. Rapa was never appointed personal representative of Plaintiff, and the time to do so has long since passed under both Missouri law and the CMO. Defendant relies on the fact that it has been over four years since Plaintiff died on December 17, 2009, and Ms. Rapa still has not been appointed her husband's personal representative. Defendant argues that not only did Ms. Rapa fail to become so appointed within the thirty days required by the CMO, but she also missed the one-year statute of limitations under Missouri law.

Furthermore, Defendant purports that Ms. Rapa misrepresented her legal status

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to the MDL court in the motion for provisional substitution by identifying herself as the personal representative of Plaintiff despite the fact that she was never appointed to the role.[1] Defendant argues that despite her representations, Ms. Rapa was not the proper party to be substituted for Plaintiff under Missouri law, as legally required by the CMO and Federal Rule of Civil Procedure 25(a). Moreover, Defendant argues that Ms. Rapa never fulfilled the condition of provisional substitution because she never submitted an order appointing her personal representative, so the provisional ...

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