Late Filings Kill Widower's Zometa Claims

(CN) - A widower waited too long to claim that his late wife developed jaw disease from taking Novartis Pharmaceuticals' breast cancer drugs Zometa and Aredia, a federal judge ruled.
     Linda Wallace sued Novartis Pharmaceuticals in January, 2006, claiming she developed osteonecrosis of the jaw as a result of taking its prescription drugs to prevent breast-cancer-related bone damage.
     In another case , several other Pennsylvanians said they too developed the disease -which may lead to complete loss of the jawbone - after taking Zometa.
     The plaintiffs in that case claimed that as early as 2002 doctors warned Novartis and clinical trials indicated the drugs' connection to osteonecrosis of the jaw.
     One of those plaintiffs claimed that after a long battle with Stage II multiple myeloma, her husband's use of the FDA-approved Zometa led to his death in October 2012.
     Wallace died on Valentine's Day 2007.
     Wallace's former attorney, Russel Beatie, 8 months later filed a suggestion of death, substituting John Wallace, the decedent's husband and executor of her estate, as plaintiff.
     The Multi-District Litigation Court granted Beatie's motion to substitute.
     Though Mr. Wallace confirmed that he was the "formal personal representative of [Mrs. Wallace's] estate" as late as Feb. 16, 2011, he did not receive letters testamentary from the state until May 2, 2012.
     Novartis moved to dismiss and to vacate the MDL order on Aug. 9, requesting a petition for abatement and arguing that the motion to substitute was defective and untimely.
     U.S. District Judge Robert Mariani granted the motion last week, finding that "plaintiff failed to meet virtually every requirement" of the MDL Court's Case Management Order (CMO).
     Because the plaintiff missed the 60-day deadline for filing the suggestion of death, the motion to substitute was also untimely.
     The motion also failed to describe why Mr. Wallace is a "proper" party and why the claim had not been extinguished under state survivorship law, the 22-page ruling states.
     "Finally, John Wallace did not obtain letters testamentary to Mrs. Wallace's estate until May 2, 2012, more than five years after Linda Wallace's death," Mariani wrote, far beyond the 30-day deadline.
     To explain the late filing, the plaintiff's current attorney, Daniel Osborn, said in an affidavit in a related action that "[i]n using the phrase 'personal representative,' we did not intend to suggest that the proposed plaintiff had been formally appointed by a court."
     But Mariani found Osborn's excuses for the "inordinate" delay insufficient, ruling that the attorney has missed - and requested extensions for - every deadline imposed on him.
     "The CMO clearly outlined the procedures that were to be followed when filing motions to substitute," Mariani wrote. "Even if attorney Osborn is unfamiliar with trusts and estates law, he is still obligated to ensure that his clients meet all of the court's requirements."
     Because Osborn said that he asked his client to obtain letters testamentary or their equivalent, Mr. Wallace also is responsible for the more than 5-year delay, the ruling states.
     "The time that Novartis has expended on the merits of this case has been substantial, when in fact, a proper party was never substituted for Linda Wallace," Mariani ruled. "Novartis has been prejudiced by being exposed to prolonged and unnecessary litigation."
     The judge added: "The court recognizes that Linda Wallace may have had a viable claim that the drugs (Aredia/Zometa) she took while battling breast cancer may have caused osteonecrosis of the jaw. Yet, attorney Osborn's complete failure to remain up-to-date with developments in his clients' lives and this case compels the court to find that dismissal outweighs any merit this case may have."