In Re Baycol Products Litigation. Melinda Torres v. Bayer Corporation

• Decision Date: 10 August 2010
• Docket Number: No. 09-1964.,09-1964.
• Parties: In re BAYCOL PRODUCTS LITIGATION. Melinda Torres, Appellant, v. Bayer Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

616 F.3d 778

In re BAYCOL PRODUCTS LITIGATION.

Melinda Torres, Appellant,

v.Bayer Corporation, Appellee.

No. 09-1964.

United States Court of Appeals,Eighth Circuit.

Submitted: March 11, 2010.

Filed: Aug. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Joe Alfred Izen, Jr., argued, Bellaire, TX, for appellant.

Adam Hoeflich, argued, Chicago, IL, Peter W. Sipkins, Minneapolis, MN, Philip S. Beck, Susan A. Weber, Chicago, IL, and Catherine Valerio Barrad, Los Angeles, CA, on the brief, for appellee.

Before RILEY, Chief Judge, ¹ BRIGHT and WOLLMAN, Circuit Judges.

RILEY, Chief Judge.

Melinda Torres filed an action against Bayer Corporation (Bayer) in Texas state court. Bayer removed the action to federal court. Three years later, Torres died. Torres's two daughters, Nicole Hampton and Stephanie O'Neal (collectively, appellants), moved to substitute for their mother as plaintiffs in this case. The district court denied the motion. Hampton and O'Neal appeal the district court's denial, and we reverse and remand to the district court for an evidentiary hearing.

I. BACKGROUND

On April 16, 2003, Torres filed her original petition (later amended) alleging, among other things, she was a resident of Texas when her physician issued her a prescription for Baycol, a drug manufactured and sold by Bayer. Torres claimed the drug caused her “serious and permanent damaging injuries,” and sued Bayer for (1) negligence in manufacturing the drug, and (2) strict products liability for a failure to warn and breach of warranty of merchantability. Bayer removed the case to the United States District Court for the District of Minnesota based upon diversity jurisdiction under 28 U.S.C. § 1332(a). Torres's case then was transferred to the “ In re: Baycol Products ” multi-district litigation. During the course of the litigation, Torres moved to California, where she died on or about April 3, 2007.

On April 5, 2007, Bayer filed a Fed.R.Civ.P. 25(a) notice, suggesting Torres had died. On July 10, 2007, Bayer filed a motion to dismiss “on the grounds that Ms. Torres [wa]s deceased and no motion to substitute parties was filed within 90 days as required by Federal Rule of Civil Procedure 25(a)(1).” On July 25, 2007, Torres's counsel filed an unopposed motion for enlargement of time to join the proper parties.

Torres's counsel filed a motion to substitute as plaintiffs “Nicole Hampton and Stephanie O'Neal, the natural daughters and sole heirs of the Deceased Plaintiff, Melinda Torres.” Torres's counsel included with the motion a memorandum of law and a joint “affidavit of heirship” by Hampton and O'Neal. In their affidavit, Hampton and O'Neal swore they were Melinda Torres's “natural daughters” and only children. The district court found appellants “failed to demonstrate [they had] the legal right or authority to pursue Plaintiff's claims on her behalf,” and provided appellants with 60 days “to submit evidence demonstrating that Nicole Hampton and Stephanie O'Neal are proper parties under [Fed.R.Civ.P.] 25.”

Appellants responded to the district court's order by filing a “proof of heirship and/or status as distributees,” along with a copy of appellants' birth certificates, and separate affidavits. The “proof of heirship” declared Torres died without a will, survived only by appellants-Torres's natural daughters, sole heirs, and sole distributees of Torres's estate. The filing further stated there was no need for an administration of Torres's estate because the pending action against Bayer was the only asset the estate possessed. Thus, appellants asked the district court to “accept the proof of heirship and [appellants'] status as sole distributees of” Torres's estate “without requiring an administration of” the estate. The attached affidavits stated Torres died without a will, appellants were Torres's daughters, and appellants could not afford the cost of pursuing a probate administration proceeding in California. The appellants both asked the district court to “enter an [o]rder recognizing our status as sole heirs and distributees of our mother” so they could substitute as plaintiffs in the case.

Once again, the district court found appellants' evidence insufficient to establish appellants were the proper parties for purposes of substitution. The district court declared “an affirmative statement that [Torres] had no other heirs” was “[n]otably absent from [appellants'] affidavits.” The court was “particularly concerned by the lack of evidence as to ... Torres'[s] marital status” at the time of her death. The district court concluded,

Without affirmative evidence Torres has no other heirs or that no person has a superior right to commence the action or proceeding or to be substituted for the decedent in a pending action, see Cal.Code of Civ. P. § 377.32(5) and (6), the Court is not convinced [appellants] are proper parties for substitution.

The district court granted appellants another 60 days “to submit evidence establishing that [appellants] are proper parties under Rule 25. Specifically, ... that [appellants] are the sole heirs to ... Torres'[s] estate, and that no other person has a superior right to be substituted in this action.”

Appellants responded to the district court's order by submitting another filing for “further submission of proof of heirship and/or status as distributees.” Appellants included with their filing (1) a letter their mother had written, presumably many years before her death, stating appellants were her only daughters, appointing a guardian over them, and noting the children grew up without a father; (2) an affidavit from a relative stating the letter was in Torres's handwriting; (3) a printed program from Torres's memorial service; and (4) appellants' joint affidavit. In their joint affidavit, appellants declared they were “the sole descendants of Melinda Torres and therefore the sole [d]istributees of her right to bring a law suit for personal injuries she suffered while she was alive and/or [for] her wrongful death.”

Absent from appellants' joint affidavit was any discussion of their mother's marital status at the time of her death. The attached program from Torres's memorial service did include an obituary. The obituary stated Torres left behind her daughters, Hampton and O'Neal, and named several other relatives, but made no mention of a spouse. Appellants requested, if the district court found the filing and attached evidence insufficient to prove appellants' status as distributees, the “[c]ourt hold an evidentiary hearing to resolve any claims or suspicions by any party or authority that additional heirs of Melinda Torres exist.”

On November 12, 2008, the district court denied appellants' motion to substitute as plaintiffs for their deceased mother, Melinda Torres. The district court noted appellants had previously “failed to provide sufficient proof pursuant to California law, that they had the legal right to pursue [Torres's] claims.” The district court added, “In their latest submissions, the prospective plaintiffs did not submit any additional evidence addressing [Torres's] marital status or whether [Torres] had additional heirs besides [appellants].” The court then granted Bayer's motion to dismiss Torres's case. Appellants moved for a new hearing, which the district court construed as a motion for reconsideration and denied. Hampton and O'Neal appeal the district court's denial of their motion for substitution and their motion to reconsider. Appellants also move to substitute as parties in this appeal.

II. DISCUSSIONA. Standard of Review and Applicable Law

Appellants argue the district court erred by requiring appellants to prove more than was necessary to satisfy the requirements of Fed.R.Civ.P. 25(a), and in denying their motion to substitute as plaintiffs. Pursuant to Fed.R.Civ.P. 25(a)(1), “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.” Id. “We review district court determinations regarding substitution for an abuse of discretion.” ELCA Enters. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 190 (8th Cir.1995). We review de novo the district court's interpretation of the law and Federal Rules of Civil Procedure. See Ind. Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir.1999).

B. History of Fed.R.Civ.P. 25(a)(1)

Federal Rule of Civil Procedure 25 was promulgated by the Supreme Court in 1938. Rule 25(a)(1) was derived, in part, from 28 U.S.C. § 778, which provided, “When either of the parties, whether plaintiff or petitioner or defendant ... dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment....” 28 U.S.C. § 778 (1934), repealed by Revision Act of June 25, 1948, c. 646, 62 Stat. 993; see Fed.R.Civ.P. 25 advisory committee note to subdivision (a)(1). In contrast, Fed.R.Civ.P. 25(a)(1), both today and as initially promulgated, permits the decedent's successor or representative to move for substitution. When 28 U.S.C. § 778 was repealed as superseded by Fed.R.Civ.P. 25, the historical requirement that only an administrator or executor of a decedent's estate could substitute as plaintiff was removed, and under the new federal rules, the proper party for substitution is the decedent's successor or representative. See Sinito v. U.S. Dep't of Justice, 176 F.3d 512, 516 (D.C.Cir.1999) (noting “the addition of the word ‘successor’ to the rule means that a proper party need not necessarily be the appointed executor or administrator of the deceased party's estate”).

Despite this change, federal courts often strictly construed Fed.R.Civ.P. 25 to preclude substitution of parties. See, e.g., Gertler v. United States, 18 F.R.D. 307, 308-09 (S.D.N.Y.1955). As a result,...