Dead man suing: weird wrinkle imperils High Court medical device case
[See update at bottom of post; Supreme Court ruled 10-1-07.]
A much anticipated Supreme Court ruling potentially impacting every personal injury suit against a medical device maker has been imperiled by a weird procedural wrinkle. Unbeknownst to the lawyers handling the appeal, known as Riegel v. Medtronic, plaintiff Charles Riegel died in December 2004, almost three years ago, and about 20 months before they filed the Supreme Court petition on his behalf.
Riegel sued after a Medtronic balloon catheter burst during an angioplasty in 1996, causing serious injuries. The Supreme Court agreed to hear the Riegel case in November 2006, because it raised the question of whether state law tort suits against medical device makers are preempted — i.e., barred — by certain language contained in the federal regulatory laws governing such devices. (The case does not directly impact suits against pharmaceutical manufacturers, who are regulated under a different federal statute that lacks the specific language in dispute.)
Often when a plaintiff in a personal injury suit dies, his case can survive him so long as the plaintiffs lawyers act promptly to substitute his estate as the new plaintiff. Under the relevant Supreme Court rule, the lawyer is supposed to do so within 6 months of the plaintiff’s death. Medtronic (MDT) is now arguing that because the plaintiffs lawyers didn’t meet that deadline, Riegel’s suit long ago “abated” (i.e., ended) and the appeal must now be dismissed. Though much of the medical device industry — which includes companies like Boston Scientific (BSX) and Johnson & Johnson (JNJ) — is eager for the case to be heard, anticipating a pro-industry ruling, Medtronic won the Riegel case in the courts below, and therefore would like to see this particular appeal dismissed (preserving their victory).
On August 1 Riegel’s appellate counsel at the Public Citizen Litigation Group, Allison Zieve, filed what’s oddly known as a “suggestion of death” motion, in which she sought to substitute Charles Riegel’s wife, Donna — the administrator of Charles’s estate — for Charles as the plaintiff. In her motion papers Zieve wrote that she first learned of Charles’s death from Donna in June of this year, and only managed to have Donna officially appointed as his administrator in late July. Zieve writes that she continually kept the Riegels apprised of the status of the case by writing to Donna, and that Donna, as a lay person, had simply not realized the impact her husband’s death would have on his suit. She argues that the Court has discretion to waive the 6-month rule and that, in any event, Donna was already a co-plaintiff in the case, suing for loss of her husband’s consortium (companionship), so her claim should go forward in any event.
Medtronic argues, on the other hand, that the abatement rule is mandatory and claims that it’s unclear under New York law whether Donna’s consortium claims survive Charles’s death. (The Court likes to hear cases that are unclouded by such state law side-issues.)
The Riegel suggestion of death motion was first reported in the Legal Times of Washington, here, and has also been noted subsequently in the blogosphere, here and here, for instance.
While pro-business bloggers have had some fun with the situation — as allegedly reflecting how distantly plaintiffs lawyers are in touch with their clients — to my ears the developments have more of a “there-but-for-the-grace-of-God-go-I” ring to them. I can well imagine a lay person, upon her husband’s death, having other things on her mind than rushing to the surrogate’s court to be formally appointed administrator of his lawsuit.
What do others think?
UPDATE (October 1, 2007, at 3:38) : This morning the Supreme Court allowed the plaintiff to substitute Donna, as administrator for the estate, for Charles. Chief Justice John Roberts and Associate Justice Antonin Scalia dissented. See Drug and Device Log post here.)
Google Answers put together a good overview of medical liability vis a vis the FDA and medicines/medical products that aren’t performing as they should:
Medical lawsuits and liability
It’s worth a look!
Amazing!! I am a physician, and if a patient I had been treating for the past 4 years had been dead the whole time, what do you think would happen to me?
Amazing!! I am a physician, and if a patient I had been treating for the past 4 years had been dead the whole time, what do you think would happen to me?
I think it is funny that people criticize the lawyer for not knowing that one of the two clients were dead. I doubt he wrote seperate letters to each client when they were married and no doubt living at the same address. Also, I bet that only one of them would ever respond. I’m sure they never both contacted him to either ok things, ask questions, make comments, etc. with one making the satement or asking the question and the other saying “I agree” or “I had that same question.”
I think it is funny that people criticize the lawyer for not knowing that one of the two clients were dead. I doubt he wrote seperate letters to each client when they were married and no doubt living at the same address. Also, I bet that only one of them would ever respond. I’m sure they never both contacted him to either ok things, ask questions, make comments, etc. with one making the satement or asking the question and the other saying “I agree” or “I had that same question.”
The defendant’s rights are also protected by lawyers — did those lawyers learn of the death of the one plaintiff? Why not? Since they now claim the death moots the entire case, shouldn’t they have also been looking out for their client, and tracking whether the man died?
Shouldn’t the defendant have been tracking the plaintiff, because they care whether their devices work or not? Are they not obligated to report this death to the FDA — and have they done so?
You can tell by the statements that several bloggers are very knowledgable in this area. But, I’m shocked not one person talked about the REAL issue in the case as stated in the article -”it raised the question of whether state law tort suits against medical device makers are preempted — i.e., barred — by certain language contained in the federal regulatory laws governing such devices.” That’s the question that MUST be answered.
What kind of society are we where we are willing to let big biz off the hook because of some bungling lawyers couldn’t do their jobs for a woman totally devastated by the death of her husband? Along with the bungling lawyers, there are many others who should be ashamed for not standing up and taking responsibility for their own shortcomings.
You can tell by the statements that several bloggers are very knowledgable in this area. But, I’m shocked not one person talked about the REAL issue in the case as stated in the article -”it raised the question of whether state law tort suits against medical device makers are preempted — i.e., barred — by certain language contained in the federal regulatory laws governing such devices.” That’s the question that MUST be answered.
What kind of society are we where we are willing to let big biz off the hook because of some bungling lawyers couldn’t do their jobs for a woman totally devastated by the death of her husband? Along with the bungling lawyers, there are many others who should be ashamed for not standing up and taking responsibility for their own shortcomings.
the lawyer wasn’t “negligent” insofar as her(the lawyer’s) claim is true that she (the lawyer)”continually kept the Riegels apprised of the status of the case by writing to Donna, and that Donna, as a lay person, had simply not realized the impact her husband’s death would have on his suit.”
ignorance of the law is no excuse.
dismiss the suit & therefore defer to the lower court ruling.
the lawyer wasn’t “negligent” insofar as her(the lawyer’s) claim is true that she (the lawyer)”continually kept the Riegels apprised of the status of the case by writing to Donna, and that Donna, as a lay person, had simply not realized the impact her husband’s death would have on his suit.”
ignorance of the law is no excuse.
dismiss the suit & therefore defer to the lower court ruling.
Are the plaintiff lawyers as dead as the plaintiff?
If I as a physician practiced with such lack of competence, I would be sued for malpractice. These plaintiff’s lawyers clearly botched their client’s case by not filing correctly. Gee, I wonder why they aren’t being sued for malpractice?
Lawyers screw up all the time and get away with it – it’s about time THEY start getting sued. They are the first to state how such suits police the medical profession (which is untrue) but apparently they wish to get away with anything and everything when it comes to themselves.
Disgusting, as usual from the legal profession.
Since Medtronic had won the case in lower courts this is not a case of them trying to drag things out to outlive the plantiff, it’s the plantiff who is appealing and the burden is on that person.
Since Medtronic had won the case in lower courts this is not a case of them trying to drag things out to outlive the plantiff, it’s the plantiff who is appealing and the burden is on that person.
I think the appropriate saying here is: “It all depends on whose Ox is being gored”. Technicalities and legal malfeasance aside, responders here that are unsympathetic and those who want to fatten their own wallet at the potential pubic saftey can expect little to no sympathy from others should similar difficulties befall them or their family. Oh yeah, Never say Never. Justice, even in a nation of Laws is not all about (or should not be)technicalities.
I think the appropriate saying here is: “It all depends on whose Ox is being gored”. Technicalities and legal malfeasance aside, responders here that are unsympathetic and those who want to fatten their own wallet at the potential pubic saftey can expect little to no sympathy from others should similar difficulties befall them or their family. Oh yeah, Never say Never. Justice, even in a nation of Laws is not all about (or should not be)technicalities.
This isn’t just some poor plaintiff’s lawyer from the hustings making a mistake. This is Public Citizen, which only takes high-profile preemption (and other cases) on appeal. Just like big defense firms are rightly held to higher standards, so should plaintiffs’ firms that hold themselves out as having special expertise.
The defendant in Riegel; (1) won below, and (2) has won these cases consistently. There are at most only two of twelve circuits with adverse rulings on preemption of PMA medical devices. The trend in the circuit courts has been strongly in favor of preemption for the last five years. i can understand perfectly well why Medtronic would just like to see the Supreme Court leave well enough alone.
From the broader industry perspective, however, they would like to get a preemption ruling this term. It is certainly possible, and I’d have to say quite likely, that the Solicitor General’s office (which gives the federal government’s official position to the Supreme Court when the Court so requests) will be “under new management” after the 2008 elections, and with that neew management would almost certainly come a less pro-business slant on tort preemption issues. If Riegel goes down because of this snafu, unless the Court were to take the Baker case from Texas (which it did not do immediately after Monday’s long conference), there is little chance that the PMA preemption issue could work its way back to the Supreme Court before the change in administrations.
This isn’t just some poor plaintiff’s lawyer from the hustings making a mistake. This is Public Citizen, which only takes high-profile preemption (and other cases) on appeal. Just like big defense firms are rightly held to higher standards, so should plaintiffs’ firms that hold themselves out as having special expertise.
The defendant in Riegel; (1) won below, and (2) has won these cases consistently. There are at most only two of twelve circuits with adverse rulings on preemption of PMA medical devices. The trend in the circuit courts has been strongly in favor of preemption for the last five years. i can understand perfectly well why Medtronic would just like to see the Supreme Court leave well enough alone.
From the broader industry perspective, however, they would like to get a preemption ruling this term. It is certainly possible, and I’d have to say quite likely, that the Solicitor General’s office (which gives the federal government’s official position to the Supreme Court when the Court so requests) will be “under new management” after the 2008 elections, and with that neew management would almost certainly come a less pro-business slant on tort preemption issues. If Riegel goes down because of this snafu, unless the Court were to take the Baker case from Texas (which it did not do immediately after Monday’s long conference), there is little chance that the PMA preemption issue could work its way back to the Supreme Court before the change in administrations.
I think I missed the part where it was established that the lawyers were “clearly” negligent. I she claims to have been in touch, isn’t that a pretty provable claim (letters, e-mails as support)? So if you think she wasn’t, you either a) beleive she’s outright lying to the Supreme Court (seems like a career limiting move, to me) or b) don’t like lawyers.
I think I missed the part where it was established that the lawyers were “clearly” negligent. I she claims to have been in touch, isn’t that a pretty provable claim (letters, e-mails as support)? So if you think she wasn’t, you either a) beleive she’s outright lying to the Supreme Court (seems like a career limiting move, to me) or b) don’t like lawyers.
Clearly the plaintiff’s lawyers were negligent in not filing the correct forms in a timely fashion.
Since the law does allow for the substitution of the estate for the deceased, it could only be pure negligence on the part of counsel.
The only rub is that one of the plaintiffs (the spouse) is still alive.
Its a tough call, however IMHO, the case should go forward only on the loss of consortium.
If that happens, it will definitely be a much smaller payday.
Yes a death brings other issues to hand, and no we do not want corporatations tring to out live individuals in court, but 20 months? I cannot accept the defenses claim that they were in contact and did not know of the death for almost two years. And the corporation won the case, the plantiff had its day in court and the Supreme Court case is a last chance appeal. I cannot find sympathy for the plantiff under these circumstances
Yes a death brings other issues to hand, and no we do not want corporatations tring to out live individuals in court, but 20 months? I cannot accept the defenses claim that they were in contact and did not know of the death for almost two years. And the corporation won the case, the plantiff had its day in court and the Supreme Court case is a last chance appeal. I cannot find sympathy for the plantiff under these circumstances
I’m going to be a little naive in my response. And, as full disclosure, I work in the medical device industry.
To me, the procedural issues are a distraction to the important issue. The important issue is whether or not Medtronic was at fault and should be held accountable. The fact that the plaintiff cannot defend himself directly seems like a technicality. (Yes, a big technicality, but still a technicality.)
If the Supreme Court case were only about money, it would seem appropriate to dismiss it. But more is at stake. To me, the case impacts patient rights and medical device manufacturer responsibilities, and those issues need to be in the open.
Did the plaintiff lawyers drop the ball? Absolutely. Were they so myopically focussed on the case and not on the person? Possibly. But the fate of the law should not be determined by the ineptitude of a few lawyers. The Supremes need to let this move forward.
I’m going to be a little naive in my response. And, as full disclosure, I work in the medical device industry.
To me, the procedural issues are a distraction to the important issue. The important issue is whether or not Medtronic was at fault and should be held accountable. The fact that the plaintiff cannot defend himself directly seems like a technicality. (Yes, a big technicality, but still a technicality.)
If the Supreme Court case were only about money, it would seem appropriate to dismiss it. But more is at stake. To me, the case impacts patient rights and medical device manufacturer responsibilities, and those issues need to be in the open.
Did the plaintiff lawyers drop the ball? Absolutely. Were they so myopically focussed on the case and not on the person? Possibly. But the fate of the law should not be determined by the ineptitude of a few lawyers. The Supremes need to let this move forward.
Bottom line…20 months passed that shows that both the lawyers are incompetent and that the issue was not a priority with the plaintiff’s estate. You snooze, you lose. If my spouse died as a possible result of medical malpractice, 100% of my attention would be focused on the suit following a normal grieving period…20 months come on!
Bottom line…20 months passed that shows that both the lawyers are incompetent and that the issue was not a priority with the plaintiff’s estate. You snooze, you lose. If my spouse died as a possible result of medical malpractice, 100% of my attention would be focused on the suit following a normal grieving period…20 months come on!
I would like to think that the Supreme Court will serve justice, not a technicality.
I would like to think that the Supreme Court will serve justice, not a technicality.
I am surprised that Medtronic is fighting the Supreme Court review of the suit. With the pro-industry slant the court has presently, this would almost guarantee their victory. Going forward, the industry would have almost carte blanche to increase profitability by cutting back on some of the excessive safety precautions they have in place. All that safety comes with a cost that hits investors like myself right in the wallet. Medtronics should support the plaintiffs petition to allow the suggestion of death motion and let the court make a final ruling. A pro Medtronic ruling would send medical stocks through the roof.
I am surprised that Medtronic is fighting the Supreme Court review of the suit. With the pro-industry slant the court has presently, this would almost guarantee their victory. Going forward, the industry would have almost carte blanche to increase profitability by cutting back on some of the excessive safety precautions they have in place. All that safety comes with a cost that hits investors like myself right in the wallet. Medtronics should support the plaintiffs petition to allow the suggestion of death motion and let the court make a final ruling. A pro Medtronic ruling would send medical stocks through the roof.
Regardless of the lawyers not doing a reasonable job, we can’t let defendants simply drag out cases then appeal until the plaintiff dies, to get out of paying damages. If the company was responsible, they should pay.
Regardless of the lawyers not doing a reasonable job, we can’t let defendants simply drag out cases then appeal until the plaintiff dies, to get out of paying damages. If the company was responsible, they should pay.
I wonder the clients reaction if Medtronic missed a case impacting deadline and now wanted it to be waived?
I wonder the clients reaction if Medtronic missed a case impacting deadline and now wanted it to be waived?
The joke here is that the lawyers did not care at all about their client – much less keep in touch with him! They didn’t know he was dead nearly three years ago…
This shows they only care about their potential payday.
The joke here is that the lawyers did not care at all about their client – much less keep in touch with him! They didn’t know he was dead nearly three years ago…
This shows they only care about their potential payday.
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This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist.
Google Answers put together a good overview of medical liability vis a vis the FDA and medicines/medical products that aren’t performing as they should:
Medical lawsuits and liability
It’s worth a look!