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McClurg v. Mallinckrodt, Inc.

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

May 30, 2017

SCOTT D. MCCLURG, et al., Plaintiffs,
v.
MALLINCKRODT, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         The 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.

         Donaldson 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.[1] 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.[2] ECF No. 333.

         On 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.

         Plaintiffs' 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.

         On 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 litigation.

         ARGUMENTS OF THE PARTIES

         Defendants 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.[3] 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.

         Next, 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.

         Finally, 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.

         In 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.[4]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.

         Plaintiffs 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.

         In 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 ...


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