Fifth Circuit affirms dismissal of case where plaintiffs' counsel had secured earlier order “through deception.”



5th Cir. -- United States Court of Appeals for the Fifth Circuit

Pharmaceutical Products


On July 11, 2014, the U.S. Court of Appeals for the Fifth Circuit issued an unpublished opinion upholding the district court’s decision granting Novartis Pharmaceuticals Corporation’s motion to dismiss plaintiffs’ claims pursuant to Rule 25 of the Federal Rules of Civil Procedure in Wilson  v. Novartis Pharmaceuticals Corp., __ F. App’x __, No. 13-10309, 2014 WL 3378316, (5th Cir. July 11, 2014), aff’g No. 4:12-cv-684-A, 2013 WL 593895 (N.D. Tex. Feb. 15, 2013). 

Plaintiff Jacqueline Wilson died in December of 2007.  In February 2008, plaintiff’s counsel filed a Suggestion of Death pursuant to Fed. R. Civ. P. 25, which asserted that two of Mrs. Wilson’s three adult children, Billy Bob Wilson and Caroline Jean Wilson, were the personal representatives of her estate.  In May 2008, the two children filed a motion for substitution as plaintiffs in the case “as the personal representatives of the Estate of Jacqueline Wilson.”  The motion was granted by the MDL court and the case proceeded, eventually being remanded and transferred to Mrs. Wilson’s home jurisdiction in the Northern District of Texas, the Honorable John McBryde.  Judge McBryde ordered plaintiffs to file a document with the court providing proof that they were the personal representatives of the estate of Jacqueline Wilson.  Plaintiffs twice sought and were granted additional time to respond to the court’s order.  Finally, in seeking a third extension, they disclosed to the court, for the first time, that they were not the court-appointed personal representatives of the estate of Jacqueline Wilson.

After a conference with the parties, Judge McBryde issued an order setting aside the May 2008 substitution order and striking from the record any items filed by the two children on behalf of Jacqueline Wilson.  He also instructed parties to file, by January 22, 2013, any motion or documents they thought appropriate, in light of his order.  Novartis filed a motion to dismiss based on Rule 25(a)(1).  The children filed a motion to vacate the court’s December 19, 2012 order rather than seeking substitution anew.  In granting Novartis’s motion to dismiss, Judge McBryde noted that the original May 2008 order granting substitution “was obtained through deception practiced on the Middle District of Tennessee court by Caroline and Billy, acting through their counsel” and that, in the absence of any plaintiff or motion to substitute a plaintiff, the case could not continue.

At the Fifth Circuit, the would-be plaintiffs contended that the district court abused its discretion when it sanctioned them by vacating the 2008 substitution order pursuant to its inherent authority to control the litigation before it.  While recognizing that “inherent powers must be exercised with restraint and discretion,” the Fifth Circuit held that the district court had not abused its discretion because the MDL court’s case management order set forth specific, detailed procedures governing substitution that the would-be plaintiffs’ counsel violated.  The Fifth Circuit further found the district court’s action justified by the false representations made to the MDL court by would-be plaintiffs’ counsel.  With regard to the would-be plaintiffs’ claim that the district court had abused its discretion when it subsequently dismissed the action, the Fifth Circuit concluded that in the absence of a plaintiff and with no pending motion for substitution, there was no plaintiff to continue the litigation – and there was “no error in the district court’s dismissal of the case in these circumstances.” 

In Wilson, deceased plaintiff Jacqueline Wilson alleged that she developed osteonecrosis of the jaw (“ONJ”) as a result of her use of Aredia® and Zometa®, prescribed to treat her metastatic breast cancer.  This case was part of the ongoing Aredia® and Zometa® multidistrict litigation, In re: Aredia® and Zometa® Prods. Liab. Litig., No. 3:06-MD- 01760 (TJC) (M.D. Tenn.).

Novartis is represented in this matter by Firm partners Donald R. McMinn and Eric G. Lasker.