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McClurg v. Mallinckrodt, Inc.

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

August 8, 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. 599) to dismiss, as time-barred, the amended complaints filed on behalf of the following three decedents in these consolidated cases: Leon Anderson, William Donaldson, and William McHenry. The amended complaints were filed with leave of the Court on June 13, 2017, by the decedents' spouses, who were substituted as party plaintiffs on January 25, 2016. For the reasons set forth below, the Court will deny Defendants' motion.

         BACKGROUND

         Before their deaths, the decedents named above each filed a “public liability action” under the Price-Anderson Act (“PAA”) as amended, 42 U.S.C. §§ 2014, 2210, governing legal liability related to “nuclear incidents.”[1] The decedents sought compensatory and punitive damages for bodily injury allegedly suffered as a result of exposure to radioactive substances mishandled 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. On January 5, 2016, Plaintiffs' attorneys filed “Suggestions of Death” and moved to substitute the spouse of each decedent under Federal Rule of Civil Procedure 25.[2] The filings did not indicate the causes of death. Defendants did not oppose the motions for substitution, and the motions were granted as unopposed on January 25, 2016. ECF No. 333.

         On April 24, 2017, Defendants filed a motion to dismiss the decedents' complaints, arguing for the first time that the spouses of Anderson, Donaldson, and McHenry were improper parties for substitution under Rule 25. Defendants argued that the spouses lacked standing to prosecute the decedents' claims because 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 had passed under Missouri law.

         In response, Plaintiffs did not dispute that the spouses were not appointed to be personal representatives of the decedents' estates, but Plaintiffs argued that Missouri's survival statute did not apply to the spouses' claims. Plaintiffs argued that because the decedents died as a result of the injuries alleged in their complaints-namely, cancer attributable to Defendants' conduct-the spouses' claims were wrongful death actions rather than survival actions. And Plaintiffs asserted that the substituted spouses were the proper parties to recover for the wrongful death of the decedents under Missouri law.

         In reply, Defendants noted that Plaintiffs never pleaded that the decedents died from the injuries alleged in their complaints, and it was too late to do so because Missouri's wrongful death statute's three-year limitations period, which governs Plaintiffs' PAA public liability actions alleging wrongful death (ECF No. 449), [3] had passed.

         The Court agreed with Plaintiffs that, to the extent Anderson, Donaldson, and McHenry died from the injuries alleged in their complaints, their spouses were proper parties and did not need to be appointed as personal representatives of the decedents' estates in order to seek wrongful death damages.[4] But because Plaintiffs had not pleaded that the decedents died as a result of the injuries alleged in their complaints, the Court allowed Plaintiffs to file amended complaints on behalf of the decedents, to sufficiently plead causes of action under the PAA for injuries resulting in death, if appropriate. The Court declined to address Defendants' argument, raised in their reply brief, as to the timeliness of such claims. Instead, the Court denied Defendants' motions to dismiss without prejudice to filing new motions to dismiss directed to any amended complaints filed by Plaintiffs.

         The spouses of Anderson, Donaldson, and McHenry filed amended complaints on June 13, 2017. The amended complaints, like the original complaints, assert causes of action under the PAA and seek compensatory and punitive damages. However, the amended complaints add an allegation that each decedent's injuries, caused by exposure to radioactive substances mishandled by Defendants, resulted in death.

         Defendants filed this motion to dismiss the amended complaints on June 27, 2017. Defendants argue that the amended complaints are untimely and must be dismissed as a matter of law because they were filed more than three years after the death of each decedent. 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.

         In response, Plaintiffs argue that the amended complaints are timely because they relate back to the decedents' timely-filed original complaints. Plaintiffs argue that the claims in the amended complaints arose out of the same conduct, transactions, or occurrences set forth in the original complaints. Plaintiffs further argue that Defendants were aware, before the three-year statute of limitations expired, that the decedents died as a result of the injuries alleged in their complaints and that the decedents' spouses intended to prosecute claims to seek damages for wrongful death. Specifically, Plaintiffs argue that, in January 2015, they produced to Defendants each decedent's death certificate, which listed as the cause of death the type of cancer alleged in the decedent's complaint, and revised questionnaires[5] completed by the spouse of each decedent that provided information about each spouse's wrongful death claim. Further, Plaintiffs argue that Defendants will not have to engage in any new or different discovery as a result of the amendment. Therefore, Plaintiffs argue that Defendants cannot show unfair prejudice.

         In reply, Defendants argue that the amended complaints do not relate back to the decedents' original complaints because the spouses of the decedents are new parties asserting new causes of action, and they have not shown any justification for the delay in adding the allegations that the decedents died as a result of their injuries. Defendants further argue that the death certificates and questionnaires produced in discovery were not sufficient to provide Defendants with notice that the decedents' spouses intended to pursue claims seeking damages for the decedents' wrongful deaths. Finally, Defendants contend that allowing the untimely amendment to go forward here would ...


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