United States District Court, E.D. Missouri, Eastern Division
SCOTT D. MCCLURG, et al., Plaintiffs,
MALLINCKRODT, INC., et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' joint motion
(ECF No. 547) to dismiss the claims of the following
decedents in these consolidated cases, for failure to
substitute “proper parties” as defined by state
law: Leon Anderson, William Donaldson, William McHenry, and
Jerry Roth. Defendants also move to dismiss the claims of
Michele Curran for failure to substitute any party within the
90 days provided by Federal Rule of Civil Procedure 25.
Finally, Defendants ask the Court to instruct Plaintiffs to
disclose the dates of death for Robert Peery, Patricia Smith,
Elenora Garrett, and any other Plaintiffs who pass away
during the pendency of the litigation going forward. For the
reasons discussed below, Defendants' motion will be
granted in part and denied in part.
decedents named above each filed suit under the
Price-Anderson Act (“PAA”) as amended, 42 U.S.C.
§§ 2014, 2210, governing legal liability related to
“nuclear incidents.” The decedents claimed
damages for bodily injury allegedly suffered as a result of
exposure to hazardous, toxic, and radioactive substances
handled by Defendants. After they filed suit, each died.
filed suit on February 28, 2012, and died on April 16, 2013;
McHenry and Anderson filed suit on January 10, 2014, and died
on February 13, 2014, and March 21, 2014, respectively; and
Roth filed suit on February 26, 2014, and died on March 25,
2015. On January 5, 2015, Plaintiffs' attorneys filed
“Suggestions of Death” and moved to substitute
the spouse of each decedent under Federal Rule of Civil
Procedure 25. The filings did not indicate the cause of
death. Defendants did not oppose the motions for
substitution, and the motions were granted as unopposed on
January 25, 2016. ECF No. 333.
January 20, 2017, Plaintiffs' attorneys also filed a
Suggestion of Death with respect to Curran, which did not
indicate the date or cause of Curran's death. However, no
motion to substitute has been filed with respect to Curran.
attorneys filed Suggestions of Death for Robert Peery,
Patricia Smith, and Elenora Garrett on January 30, 2017,
February 7, 2017, and March 30, 2017, respectively, but again
did not indicate the dates or causes of death. ECF Nos. 487,
492 & 516. Motions to substitute were filed with respect
to Peery (seeking to substitute his son) and Smith (seeking
to substitute her spouse), which Defendants did not oppose
and which were granted by the Court on February 7, 2017, and
February 16, 2017, respectively. ECF Nos. 491 & 498. No
motion to substitute has been filed with respect to Garrett.
April 24, 2017, Defendants filed the present motion to
dismiss, arguing for the first time that the spouses of
Anderson, Donaldson, McHenry, and Roth are improper parties
for substitution under Rule 25. Defendants also seek the
dismissal of Curran's claims for failure to substitute
any party, and Defendants request that Plaintiffs be required
to disclose the dates of death for Peery, Smith, Garrett, and
any other Plaintiffs who pass away during the pendency of the
OF THE PARTIES
argue that the claims of Anderson, Donaldson, McHenry, and
Roth should be dismissed because the spouses of these
decedents are not eligible to prosecute their claims as a
matter of state law. Defendants base their motion on the fact
that the spouses were not appointed by the state probate
court to be personal representatives of the decedents'
estates, as required by Missouri's survival statute, Mo.
Rev. Stat. § 537.020, and the time to do so has passed
under Missouri law. Although Defendants did not oppose the
motions to substitute at the time they were filed, and did
not bring these issues to the Court's attention until
more than a year after the fact, Defendants argue that the
improper substitutions in this case implicate an issue of
standing that cannot be waived.
Defendants argue that Curran's claims should be dismissed
with prejudice because no motion to substitute was filed with
respect to her claims within 90 days of the Suggestion of her
Death, as required by Rule 25.
Defendants argue that Plaintiffs should be required to
disclose the dates of death for Peery, Smith, and Garrett.
Defendants' motion does not seek the dismissal of these
Plaintiffs' claims but simply requests that the dates of
death, of these and any other Plaintiffs who pass away during
the pendency of the litigation, be disclosed.
response, Plaintiffs argue that Missouri's survival
statute does not apply to the claims of Anderson, Donaldson,
McHenry, or Roth because each of these decedents died as a
result of the injuries alleged in their complaints-namely,
cancer attributable to Defendants' conduct. Plaintiffs
have attached to their response the death certificates for
these decedents, which list the type of cancer alleged in the
complaints as a cause of death.Plaintiffs assert that each of the
substituted spouses “seeks to recover for the wrongful
death of her deceased husband, ” ECF No. 565 at 1, and
are proper parties to bring wrongful death actions, which do
not require appointment of a personal representative under
Missouri law. As Plaintiffs put it: “That these proper
Plaintiffs have not yet sought leave to add the word
‘death' to the complaints is not a basis for
dismissal for failure to substitute a proper party.”
Id. at 3.
do not object to the dismissal of Curran's claims, on
behalf of whom they never filed a motion to substitute.
Plaintiffs further argue that they produced to Defendants the
death certificates containing dates of death of Peery and
Smith, and that they have not yet obtained the death
certificate of Garrett, but that they do not presently intend
to file a motion to substitute with respect to Garrett.
reply, Defendants maintain that Plaintiffs have “put
the cart before the horse” because the substituted
Plaintiffs never initiated wrongful death claims for the
deaths of Anderson, Donaldson, McHenry, and Roth. Defendants
argue that the claims of these decedents, as pleaded, seek
damages for personal injuries only. According to Defendants,
wrongful death is a “distinct cause of action”
under Missouri law, created purely by statute, and a personal
injury claim does not automatically convert to a wrongful
death claim upon the death of the decedent. Defendants
further argue that the substituted Plaintiffs should not be
able to initiate wrongful death claims now because, at least
with respect to ...