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Cutsinger v. Gyrus AMCI, Inc.

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

July 11, 2019

ELICIA CUTSINGER, Plaintiff,
v.
GYRUS ACMI, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion to substitute parties, pursuant to Federal Rule of Civil Procedure 25(a). The motion was filed by plaintiff Elicia Cutsinger's surviving children, Amber Long and Jason Cutsinger, who move that they be substituted for the plaintiff in this case. Olympus Corporation of the Americas, Gyrus ACMI, Inc., and Gyrus AMCI, L.P., oppose the motion, which is fully briefed and ripe for review.

         Background

         Plaintiff Elicia Cutsinger died on February 26, 2019. The Court was informed of this fact on February 28, 2019, during a discovery dispute. On March 22, 2019, defendants filed a Statement Noting Ms. Cutsinger's Death, pursuant to Fed.R.Civ.P. 25(a). Under Rule 25, a motion for substitution must be made 90 days after service of the statement noting death, or the action must be dismissed. Fed.R.Civ.P. 25(a)(1). On April 25, 2019, Amber Long and Jason Cutsinger filed a motion to substitute parties, the motion that is presently at bar.[1] No. other person or entity moved to be substituted as plaintiff in this case, and the time to do so under Rule 25(a) has expired.

         In her complaint, plaintiff Elicia Cutsinger alleges that in 2013 she underwent a laparoscopic surgical procedure in which the surgeon used a device, the GYRUS LPM Plasma Morcellator, to morcellate, or cut into small fragments, her uterus. Plaintiff alleges that defendants marketed, distributed, and/or sold the GYRUS LPM Plasma Morcellator. She alleges subsequent to that surgery, she was diagnosed with leiomyosarcoma, a deadly form of uterine sarcoma, and that the malignant cells were spread throughout her abdomen and pelvis by the GYRUS LPM Plasma Morcellator, worsening her condition.

         Plaintiff Cutsinger brings five counts under Missouri state law against defendants: strict product liability - failure to warn and instruct (Count I); strict product liability - design defect (Count II); negligent misrepresentation and fraud (Count III); negligent undertaking and training (Count IV); and negligent failure to warn (Count V). In their motion, movants Amber Long and Jason Cutsinger, the two adult children of plaintiff Cutsinger, state that they do not seek to pursue these claims on behalf of Ms. Cutsinger's estate, but rather they seek to bring a state wrongful death claim, pursuant to Mo. Rev. Stat. § 537.080.

         Defendants oppose movants' motion arguing that Amber Long and Jason Cutsinger are not seeking a substitution of parties, but rather they are attempting to bring an entirely new case with new claims and parties. Defendants argue that the motion is improper because plaintiff's counsel is attempting, through a motion for substitution of parties, to fast track a new wrongful death case and to evade procedural and substantive steps.

         Discussion

         Movants move for substitution under Rule 25(a) of the Federal Rules of Civil Procedure, which 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)

         Missouri law recognizes two distinct causes of action for injuries inflicted upon a deceased person. Under Missouri's survival statute, Mo. Rev. Stat. § 537.020, a personal representative of the decedent's estate may bring claims for personal injuries to the decedent, other than those injuries resulting in death. See Smith v. Tang, 926 S.W.2d 716, 718 (Mo.Ct.App. 1996) (“Claims brought under § 537.020 survive only to the personal representative of the decedent's estate and not to his or her heirs.”); see also McConnell v. Commercial Carriers, Inc., No. 4:03-CV-253RWS, 2009 WL 3247304, at *4 (E.D. Mo. Oct. 5, 2009) (same). Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080, on the other hand, provides for certain persons to bring causes of action against alleged tortfeasors for the death of a family member. McClurg v. Mallinckrodt, Inc., 322 F.R.D. 364, 367 (E.D. Mo. 2017) (citing Lawrence v. Beverly Manor, 273 S.W.3d 525, 527 (Mo. 2009)). The statute provides:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured . . . .

Mo. Rev. Stat. § 537.080. The statute does not “revive a cause of action belonging to the deceased, ” but rather Missouri's wrongful death statute “creates a new cause of action where none existed ...


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