McKenzie v. Janssen Biotech, Inc., 1170787

• Court: Supreme Court of Alabama
• Writing for the Court: MITCHELL, Justice.
• Citation: 295 So.3d 617
• Parties: Tim MCKENZIE and Sherrie McKenzie v. JANSSEN BIOTECH, INC.
• Decision Date: 27 September 2019
• Docket Number: 1170787

295 So.3d 617

Tim MCKENZIE and Sherrie McKenzie
v.
JANSSEN BIOTECH, INC.

1170787

Supreme Court of Alabama.

September 27, 2019

Keith Altman of Excolo Law PLLC, Southfield, Michigan, for appellants; and Sherrie McKenzie, appellant, pro se.

Joseph P.H. Babington and Philip D. Mahoney of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee.

MITCHELL, Justice.

This appeal is an attempt to breathe life into a clearly deficient complaint with untimely claims. We reject that attempt and affirm the judgment of the trial court.

Facts and Procedural History

In July 2012, Dr. William Sullivan prescribed Remicade, a medication manufactured by Janssen Biotech, Inc. ("JBI"), to Tim McKenzie as a treatment for Tim's psoriatic arthritis. Tim thereafter received Remicade intravenously every two weeks until November 2014, when he developed severe neuropathy causing significant weakness, the inability to walk without assistance, and the loss of feeling in, and use of, his hands and arms. Although Tim stopped receiving Remicade at that time, he and his wife, Sherrie, allege that they were not told that Remicade was responsible for his injuries. In December 2015, Tim traveled to the Mayo Clinic in Rochester, Minnesota, to receive treatment for his neuropathy. The McKenzies state that at the Mayo Clinic Tim was eventually diagnosed with demyelinating polyneuropathy and doctors told them that it was likely caused by the Remicade.

On October 22, 2016, the McKenzies sued JBI and Dr. Sullivan in the Monroe Circuit Court, asserting failure-to-warn, negligence, breach-of-warranty, fraud, and loss-of-consortium claims.¹ The complaint filed by the McKenzies was not signed, but it indicated that it had been prepared by Sherrie, who is not only a named plaintiff, but also an attorney and active member of the Alabama State Bar. Keith Altman, an attorney from California^* admitted pro hac vice in November 2017, assisted with the preparation of the complaint. It is apparent from even a cursory review of the complaint that it was copied from a complaint filed in another action. The complaint included numerous factual and legal errors, including an assertion that Tim was dead even though he is alive and claims invoking the laws of Indiana even though that state has no apparent connection to this litigation.² Moreover, the complaint included a "verification" by an attorney who does not represent the McKenzies and who is not admitted to practice law in Alabama, certifying, in accordance with Pennsylvania law, that the facts asserted in the complaint are true to the best of his knowledge. This verification was electronically signed in December 2013, approximately a year before Tim suffered the injuries giving rise to this lawsuit.

295 So.3d 619

There is no indication that JBI was ever served with the McKenzies' October 2016 complaint. At the time of filing, the McKenzies completed a summons form on which they checked a box notifying the "sheriff or any person authorized by the Alabama Rules of Civil Procedure to serve process" that "service by certified mail of this summons is initiated upon the written request of Tim McKenzie pursuant to the Alabama Rules of the Civil Procedure." The McKenzies, however, did not otherwise request in writing that the Monroe Circuit Clerk serve JBI by certified mail, nor did they provide the required certified-mail supplies or postage to the clerk. The McKenzies also took no steps to initiate service by certified mail themselves. We further note that, even if the McKenzies had taken the proper steps to serve JBI by certified mail, the address for service that was provided by the McKenzies on the summons form was not the address of JBI's registered agent in Alabama. The McKenzies assert that any error regarding the service of their October 2016 complaint lies with the circuit clerk's office.

On February 14, 2017, the McKenzies filed an amended complaint that was properly signed by Sherrie and that omitted the extraneous verification made under Pennsylvania law. On February 16, 2017, a private process server delivered the complaint and accompanying summons to JBI's registered agent in Alabama. JBI thereafter removed the case to the United States District Court for the Southern District of Alabama. While the case was pending in federal court, the McKenzies again amended their complaint and JBI filed multiple motions seeking the dismissal of the action on statute-of-limitations grounds.

The case was eventually remanded to the Monroe Circuit Court, and on November 14, 2017, JBI moved that court to dismiss the McKenzies' complaint. In its motion, JBI argued, among other things, that Tim suffered his injuries in November 2014; that the tort claims the McKenzies had asserted were subject to a two-year statute of limitations; and that the McKenzies had failed to properly commence an action against JBI until February 2017, when they filed their signed amended complaint and properly served JBI. Therefore, JBI argued, the McKenzies' tort claims were untimely and due to be dismissed. The McKenzies opposed JBI's motion to dismiss, arguing both that their October 2016 complaint properly commenced an action against JBI and that the statute of limitations had been tolled by JBI's alleged fraud.

While JBI's motion to dismiss was pending, the McKenzies agreed to dismiss Dr. Sullivan from the action. On April 24, 2018, the trial court entered an order in which it struck the McKenzies' October 2016 complaint under Rule 11(a), Ala. R. Civ. P., based both on the complaint's "numerous, substantial errors" and "the failure of any counsel to sign the document." The trial court further dismissed as untimely all of the McKenzies' claims, except their breach-of-warranty and fraud claims. The McKenzies and JBI thereafter agreed to dismiss those remaining claims, and on May 21, 2018, the trial court entered a final judgment. On May 24, 2018, the McKenzies filed a timely notice of appeal to this Court. That notice of appeal did not indicate whether the McKenzies were appealing the dismissal of all the claims they had asserted against JBI or just some of those claims. Their subsequent brief, however, makes clear that they are appealing only the dismissal of their failure-to-warn and negligence claims.

Standard of Review

In State v. $93,917.50 & 376 Gambling Devices, 171 So. 3d 10, 16 (Ala. 2014), this Court stated:

295 So.3d 620

" Rule 11(a) provides that, if a pleading is not signed or is signed with intent to defeat the purpose of the rule, it ‘may’ be stricken. A trial court, under the rule, is not required to strike an unsigned pleading. Thus, Rule 11(a) itself contemplates that even a pleading that violates Rule 11(a) can stand."

Because a trial court is vested with the discretion to decide whether an unsigned complaint should be stricken under Rule 11(a), the trial court's decision to strike the McKenzies' October 2016 complaint will be reversed only if it is established that the trial court exceeded its discretion in doing so.

This...