Brown v. Ortho Diagnostic Systems, Inc., C.A. No. 94-790-A.

• Decision Date: 22 November 1994
• Docket Number: C.A. No. 94-790-A.
• Citation: 868 F. Supp. 168
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nathaniel A. BROWN and Nannette Annita Brown, Plaintiffs, v. ORTHO DIAGNOSTIC SYSTEMS, INC., Defendant.

868 F. Supp. 168

Nathaniel A. BROWN and Nannette Annita Brown, Plaintiffs, v. ORTHO DIAGNOSTIC SYSTEMS, INC., Defendant.

C.A. No. 94-790-A.

United States District Court, E.D. Virginia, Alexandria Division.

November 22, 1994.

Nathaniel Brown, Arlington, VA, for plaintiffs.

William B. Moffitt, Moffitt, Zwerling & Kemley, P.C., Alexandria, VA, guardian ad litem.

Thomas S. Schaufelberger, Adele Baker, Wright, Robinson, McCammon, Othimer & Tatum, Washington, DC, for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

This case presents the question, undecided in this circuit, whether a nonlawyer parent can represent his infant child on her claim for damages in a products liability suit. For the reasons stated, the Court concludes that he cannot.

I.

This diversity¹ products liability action grows out of injuries to an unborn child alleged to have resulted from the mother's use of Defendant Ortho Diagnostic Systems, Inc.'s ("Ortho's") pharmaceutical product. Plaintiff Nannette Brown was born in April, 1991. She is the first biological child of plaintiff Nathaniel Brown and his wife, Nancy Ann Brown.² At some time prior to Nannette's birth, the treating physicians discovered an Rh factor incompatibility between the mother's blood type and the unborn child's blood type: Mrs. Brown is Rh-negative, while the unborn baby, Nannette, was Rh-positive, a trait she inherited from her father. The complaint alleges that when Mrs. Brown checked into Arlington Hospital in Arlington, Virginia to give birth to Nannette, she was given Ortho's product, RhoGAM, to treat the Rh factor incompatibility.³

The complaint further alleges that RhoGAM failed to work in this instance, with the result that Nannette sustained permanent injuries.⁴ According to the complaint, the "package insert" for RhoGAM does not warn doctors about the risk of RhoGAM's "failure to suppress the immune response to Rh positive red blood cells when the drug is appropriately administered." Complaint at paragraph 6. This failure to warn is alleged to be a contributing cause of Nannette's injuries.

Mr. Brown filed this suit on his own behalf and as next friend of his daughter, Nannette. The complaint contains two counts, both based on an alleged breach of warranty relating to RhoGAM. The first count seeks $4,000,000 in damages for Nannette's injuries, including mental anguish, "impairment of earning capacity after attaining majority," and "permanent brain injuries." The second count seeks $1,000,000 in damages for Mr. Brown as compensation for medical expenses. Mr. Brown, a nonlawyer, did not retain a lawyer but chose instead to represent himself. He also seeks to act as his daughter's lawyer.

In response to this situation, Ortho filed a Rule 41(b), Fed.R.Civ.P.,⁵ motion to dismiss Nannette's action on the ground that Mr. Brown's representation of his daughter in connection with her claims violates Rule 17, Fed.R.Civ.P. In essence, Ortho's claim is that because nonlawyer parents have never been permitted to represent their children in federal courts, Mr. Brown's attempt to do so in the present case runs afoul of Rule 17, and hence provides a basis on which to dismiss the action. For the reasons stated below, Ortho's motion must be denied.

II.

Rule 17 concerns the capacity of entities to sue and be sued. Yet, the question presented here is not who can sue or be sued, but rather who can represent whom in federal court. On this question Rule 17 is silent and is therefore inapplicable. Applicable instead is the general supervisory power of federal courts to determine whether a nonlawyer will be allowed to represent another person in court.

There is no dispute that Mr. Brown can litigate his own claim pro se. Indeed, his right to do so is guaranteed by 28 U.S.C. § 1654 (1994).⁶ Nor is there any dispute that Nannette can sue by her father as next friend. Rule 17(c) of the Federal Rules of Civil Procedure provides that "an infant ... who does not have a duly appointed representative may sue by a next friend...."⁷ Hence, what is at issue is not who can sue, but rather whether Mr. Brown, an unlicensed layman, can act as his daughter's lawyer in court.

Except in the rarest of circumstances, federal courts have been uniformly hostile to attempts by non-attorneys to represent others in court proceedings.⁸ And three circuits have dealt specifically with a situation where a non-attorney parent endeavors to represent his minor child's interests in court without a lawyer. All three have concluded that the parent cannot proceed without a licensed attorney when representing his minor child's interests in a lawsuit. Meeker v. Kercher, 782 F.2d 153 (10th Cir.1986);⁹Osei-Afriyie v. Medical College of Pa., 937 F.2d 876 (3d Cir.1991); Cheung v. Youth Orchestra Foundation of Buffalo, 906 F.2d 59 (2d Cir.1990). Accord Lawson v. Edwardsburg Public School, 751 F.Supp. 1257 (W.D.Mich.1990). Accord Lawson v. Edwardsburg Public School.

The Osei-Afriyie case is particularly instructive. There, a father and his minor daughters visited Ghana, Africa and, when they returned to the United States, the daughters had malaria. After the daughters were treated for the disease in a hospital, the father filed numerous claims against the hospital on behalf of himself and his daughters. The father, a non-attorney, represented himself and his children in the case. Although the tolling of the statute of limitations for infancy was applicable and thus the children's claims should not have been time-barred, the father failed to request a jury instruction on the tolling of the statute, nor did he object to the absence of the instruction. 937 F.2d at 882. Not surprisingly, the jury found that the children's claims were time-barred. The Third Circuit reversed and remanded for a new trial. In doing so, the panel did not pass on whether the lack of the jury instruction was reversible error, but held instead that the father, appearing pro se, "was not entitled to play the role of attorney for his children in federal court." The court continued,

"The infant is always the ward of every court wherein his rights or property are brought into jeopardy, and is entitled to the most jealous care that no injustice be done to him." ... The right to counsel belongs to the children, and, under Meeker and Cheung, the parent cannot waive this right.

Id. at 883 (quoting duPont v. Southern Nat'l Bank of Houston, 771 F.2d 874, 882 (5th Cir.1985) (quoting Richardson v. Tyson, 110 Wis. 572, 86 N.W. 250, 251 (1901)), cert. denied, 475 U.S. 1085, 106 S.Ct. 1467, 89 L.Ed.2d 723 (1986)).¹⁰

The near uniform proscription¹¹ on non-lawyers representing others in court is soundly based on two separate, but complementary policy considerations.¹² First, there is a strong and compelling state interest in regulating the practice of law.¹³ Regulation that excludes non-lawyers from representing others reflects that the conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents, but also for his adversaries and the court. The lay litigant frequently files pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney's ethical responsibilities, including, importantly, the duty to avoid litigating unfounded or vexations claims. See Lindstrom, 632 F.Supp. at 1538 (quoting Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983)).

The second reason unlicensed laymen are not typically permitted to represent others in court concerns the importance of what is at stake for the litigant, and the final nature of the adjudication of the rights in question. Thus, a party may be bound, or its rights waived, by its legal representative. When that representative is a licensed attorney there are grounds to believe that the representative's character, knowledge and training are equal to the responsibility.¹⁴ In addition, remedies and sanctions are available against the lawyer that are not available against nonlawyers, including ethical misconduct sanctions and malpractice suits. In sum, litigation is akin to navigating hazardous waters; federal courts are willing to allow individuals to steer their own boats, and perhaps founder or run aground; but federal courts are not willing to permit individuals to risk the safety of others' boats.

This case falls squarely within the ambit of the principles that militate against allowing non-lawyers to represent others in court. As a layman, Mr. Brown lacks the legal training necessary to pursue this complex products-liability action effectively. He is neither bound by a licensed attorney's ethical responsibilities, nor subject to the internal discipline of the bar. Accordingly, Mr. Brown cannot act as Nannette's attorney in this matter. He may, however, continue to prosecute his own claims pro se, and he may also act as next friend to Nannette, making litigation-related decisions on her behalf in consultation with her attorney.¹⁵

In summary, Ortho's contention that Mr. Brown may not act as his daughter's lawyer is well taken. But contrary to Ortho's contention, Mr. Brown's attempt to do so is not a violation of Rules 17 or 41. And dismissal of Nannette's claim on this ground is certainly unwarranted. Rather, all that is required is for the Court to appoint counsel for Nannette, which has now been done.¹⁶

The appropriate orders have issued.

1 Plaintiffs are citizens of Virginia, and Defendant is a New Jersey corporation.

2 Mr. Brown and his wife also have an adopted child.

3 Approximately fifteen percent of women are Rh negative. These women do not have a protein-like substance called the "Rhesus factor," or "Rh factor," in their red blood cells. See M. Stoppard, Conception, Pregnancy and Birth 184 (1993). When these women give birth to their first Rh-positive baby, the Rh factor...