June 15, 2011
MARY PAMELA DOUGHERTY, PLAINTIFF-APPELLANT,
NOVARTIS PHARMACEUTICALS CORPORATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3277-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2011 - Decided Before Judges A.A. Rodriguez and LeWinn.
On April 29, 2008, plaintiff (hereinafter "decedent"), Mary Dougherty, filed a complaint against defendant, Novartis Pharmaceuticals Corporation (Novartis), seeking damages for injuries sustained as a result of her use of Aredia, manufactured by Novartis, to treat hypercalcemia and bone metastases. The subject of this appeal is the order entered by the trial judge on July 23, 2010, dismissing the complaint with prejudice pursuant to Rule 4:23-5(a)(2). We affirm.
Mary Dougherty died on December 4, 2009, and no substitute plaintiff has replaced her. Ordinarily, this would render the appeal moot. Nonetheless, we have determined to address the merits of the appeal in order to put this matter to rest.
The complaint was one of about 150 cases consolidated as part of Mass Tort 278, created by the Supreme Court in January 2008 with respect to the Zometa/Aredia litigation. Of those cases, only twelve were selected to proceed with discovery; this case was not one of them. However, a Case Management Order (CMO) "applicable to all cases" was entered on July 18, 2008, stating that "[p]laintiffs in all cases currently docketed in this [c]court as of the date of entry of this [o]rder shall complete a [plaintiff's fact sheet] PFS in all material respectsand serve the same upon [d]efendant's [l]ead [c]counsel in the applicable case."
On February 3, 2010, Novartis moved to dismiss the complaint for failure to serve a PFS complete in all material respects pursuant to that CMO. Decedent's counsel, who had been in touch with decedent's sister, Mary Stith, both to substitute as plaintiff and to complete the PFS, did not oppose the motion. On February 19, 2010, the judge granted Novartis' motion without prejudice. On June 9, 2010, having received neither a substitution of plaintiff nor a completed PFS, Novartis moved to dismiss the complaint with prejudice based on Rule 4:23-5(a)(2).
On the return date of the motion, June 25, 2010, decedent's counsel requested a four-week adjournment to take steps necessary to "have Miss Stith appointed as the administratrix of the estate so that she can proceed in this case for the plaintiff [sic]." The judge granted the requested adjournment to enable counsel to "get a duly authorized representative for the estate to sign the authorizations and the PFSs . . . in light of the fact that we need Miss Stith or someone else appointed as the authorized representative for the estate to pursue this action and to comply with discovery . . . ." The judge advised counsel that if "any one of those [items] aren't done, the dismissal with prejudice will be granted . . . ."
On July 23, 2010, the judge rendered a decision from the bench granting Novartis' motion to dismiss the complaint with prejudice. Decedent's counsel had submitted an affidavit of compliance stating that he had served Miss Stith with all required notices and had spoken to her and "advised her of the consequences of her failure to provide the outstanding discovery and be a duly appointed administratrix of the estate in order to prosecute this action." However, Miss Stith had failed to respond in any fashion. The judge noted that from the time of [decedent's death in]
December of 2009 through the filing of the motion to dismiss without prejudice, through the original return date of the motion to dismiss with prejudice, . . . no action had been taken on behalf of the deceased to have an administratrix or administrator appointed to prosecute the claims on behalf of the deceased against Novartis.
As of late yesterday, . . . the [c]court has now received a certification from [decedent's counsel] . . . requesting additional time to provide the information that would be required to avoid the with prejudice dismissal of this matter.
The judge noted further that there is no certification from Miss Stith, [stating] that [she] is still seeking to be appointed formally as the representative of the estate by an appropriate court in the State of Florida where both the decedent and Miss Stith resided. . . . [T]oday . . . there's still nothing, not a single piece of paper . . . requesting that Miss Stith be appointed as a duly authorized representative of the estate of her deceased sister so that she may prosecute and have standing to pursue this matter.
In fact, there is absolutely nothing from Miss Stith explaining why that hasn't been done to date. . . .
This matter has been pending before the [c]court by way of a without prejudice dismissal that was granted in February, so certainly [decedent's] counsel knew as of February that there was no duly authorized representative of the estate to prosecute this action, so since February . . . Miss Stith has done absolutely nothing in order to have herself appointed so that . . . Novartis could . . . obtain the medical records from [decedent] and obtain [PFS] responses.
Regarding counsel's "eleventh hour" request for additional time, the judged noted that counsel "had already [been] given additional time . . . and nothing has been done . . . ." The judge further noted that the fact that this case is not one of the trial ready cases does not mean that discovery and appropriate appointment as a representative of the estate [are] somehow obviated or stayed. . . . Th[e]se cases will continue along with the discovery process, even if they're not selected as what mass tort litigations call a bellwether case.
Furthermore, the judge stated, "having a duly authorized representative to replace a deceased plaintiff . . . [is] certainly something that . . . should be done the moment somebody passes so that an action can have appropriate standing to be prosecuted."
The judge concluded her decision dismissing the complaint with prejudice as follows:
So, for all of these reasons, as well as the reasons that were set forth on the record on June 25, 2010, the [c]court finds that the plaintiff has not complied with the [PFSs], that the plaintiff was deceased as of December 2009 and that there have been absolutely no articulated efforts, despite the [c]court allowing significant additional time, to have somebody commence the process, not even obtain letters of administration or letters of appointment but just start the process seeking to be appointed as a representative of the estate. Absolutely nothing has appeared before the [c]court so that this matter is going to be dismissed with prejudice.
On appeal, decedent's counsel contends that the trial judge abused her discretion in dismissing the complaint "even though the [PFS] had been completed in all material respects." Having reviewed the record and the controlling legal principles, we conclude this contention lacks "sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(1)(E), beyond the following comments.
On or about June 24, 2010, decedent's counsel filed a motion to vacate the February 2010 order of dismissal without prejudice. In support of that motion counsel submitted a certification detailing his efforts to contact decedent and her sister. Counsel certified that "[a]s of June 18, 2010, [he] believed [he] had a substantially complete PFS . . . and on June 23, [he] emailed [it] to counsel for Novartis."*fn1
Neither counsel has included a copy of that "substantially complete PFS" in the appendices. In its brief, Novartis contends that the PFS "was not complete in all material respects as required by [the] CMO[,] and that it was "signed by Ms. Stith, who had not been properly substituted as representative of [p]laintiff's estate and had no standing to prosecute the case." In his reply brief, decedent's counsel asserts that defendant never notified him of any deficiencies in that PFS.
In any event, we are satisfied that the judge properly dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2). The record before the judge was devoid of any evidence of counsel's compliance with the PFS requirement in the CMO.
Moreover, because decedent's claim was not "extinguished" by her death, counsel was obligated to move for substitution by her "successors or representatives." R. 4:34-1(b). A deceased party's claim "cannot be heard unless those having an interest in her estate or their representatives are first made parties pursuant to R. 4:34-1(b)." Stroman v. Brown, 194 N.J. Super. 307, 313 (App. Div. 1984). Counsel's failure to make decedent's sister a party pursuant to R. 4:34-1(b) in and of itself precluded the possibility of his compliance with the PFS requirement as there was no viable plaintiff of record after December 2009.
In sum, we affirm substantially for the reasons set forth in Judge Jessica R. Mayer's bench decisions of June 25 and July 23, 2010, which properly determined that decedent's counsel had failed to provide "the demanded and fully responsive discovery" required in order to avoid a dismissal with prejudice. R. 4:23-5(a)(2).