MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

Before the Court is Defendant's Motion to Dismiss (Doc. 67). For the reasons set forth below, the Court will grant Defendant's motion.

II. Background

On January 18, 2006, Linda Wallace ("Mrs. Wallace") filed this personal injury action against Defendant Novartis Pharmaceuticals Corporation ("Novartis"), arising from her use of Aredia and Zometa to treat her breast cancer. (Complaint ("Compl."), Doc. 1, ¶ 13). She claimed that as a result of taking Aredia and Zometa, she developed osteonecrosis of the jaw and brought this suit in federal court on diversity grounds. (Id. at ¶¶ 5,14).

Mrs. Wallace died on February 14, 2007. (Suggestion of Death, Doc. 68-1, Ex. 1). Former counsel, Russel Beatie, filed the Suggestion of Death on October 26, 2007.1 (Id.). In the Suggestion of Death, he stated that "John Wallace, the personal representative of Linda Wallace's estate, will be substituted in this action so that Linda Wallace's claims survive and the action on her behalf may proceed." (Id.). On January 8, 2008, Attorney Beatie led a Motion to Substitute (Doc. 68-2, Ex. 2), which has been reproduced below in its entirety;

The Multi-District Litigation ("MDL") Court granted the Motion to Substitute. (Doc. 68-3, Ex. 3). Also, as late as February 16, 2011, John Wallace confirmed that he was the "formal personal representative of [Mrs. Wallace's] estate." (J. Wallace Dep., Doc. 684, at 13:10-12). He, however, did not receive Letters Testamentary from the Commonwealth of Pennsylvania until May 2, 2012. (Petition for Grant of Letters, Doc. 68-5).

The Case Management Order ("CMO") from the MDL Court set forth detailed requirements when filing Suggestions of Death and Motions to Substitute. It stated, in pertinent part:

(CMO, Doc. 68-6, Section V.A-C).

On August 5, 2013, the Court held a Daubert hearing on Plaintiffs proposed experts. At the close of the hearing, counsel for Novartis orally informed the Court that Defendant would soon file a motion to abate the action. On August 9, 2013, Novartis filed its Motion to Dismiss (Doc. 67), requesting various forms of relief, including a Petition for Abatement under 20 PA. CONS.STAT. § 3373, a Motion to Vacate the MDL Order which had granted the defective and untimely Motion to Substitute entered in 2007, and a Motion to Dismiss under both FED.R.CIV.P. 25(a) and the CMO.

III. Analysis

a. Failure to Comply with the MDL Court's CMO

Rule 25(a) and the CMO govern the procedures required to substitute a party upon the death of a plaintiff. The specific provisions of the CMO at issue here are reproduced below:

(CMO, Doc. 68-6, Section V.A-C.).

Plaintiff failed to meet virtually every requirement set forth above. Mrs. Wallace died on February 14, 2007. (Suggestion of Death, Doc. 68-1, Ex. 1). Plaintiffs counsel did not file a Suggestion of Death until October 26, 2007 (id.), well past the sixty-day deadline. Thus, Plaintiff violated provision V.A. of the CMO. Because of Plaintiffs counsel's tardiness in filing the Suggestion of Death, the Motion to Substitute was also untimely (Doc. 68-2, Ex. 2), thus violating provision V.B. of the CMO. Neither did the Motion to Substitute "describe why the proposed substitute plaintiff is a `proper' party and why the claim has not been extinguished under the applicable state survivorship statute." 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. (Petition for Grant of Letters, Doc. 68-5). Thus, Plaintiffs counsel failed to "initiate or cause to be initiated proceedings to open an estate and/or obtain the appointment of a personal representative for plaintiff within thirty (30) days of the plaintiffs death," as required by "applicable state law" in violation of provision V.C.2 of the CMO. As such, according to provision V.C.3 of the CMO, these failures "entitle Defendant to request a dismissal of plaintiffs action with prejudice in accord with Fed.R.Civ.P. 25(a)."

b. Failure to Comply with Rule 25(a)

Rule 25(a) provides the following with respect to substitution in the event of the death of a party when the claim is not extinguished:

Before addressing whether Plaintiff duly complied with Rule 25(a), the Court first will resolve a dispute between the parties as to who constitutes a "proper party" under Rule 25(a). Both parties cite to In re Baycol Products Litigation for different propositions. 616 F.3d 778 (8th Cir.2010). Defendant cites to Baycol for the principle that "state law governs who can be a `representative' or `successor,' and therefore, who can qualify as a proper party for substitution under Rule 25(a)(1)."3 Id. at 785 (emphasis in original). Plaintiff does not dispute this principle, but instead, points to language elsewhere in Baycol that says, "under certain circumstances, a person may be a `successor' under Rule 25(a)(1) if she is ... (2) named in a will as the executor of the decedent's estate, even if the will is not probated, see McSurely [v. McClellan], 753 F.2d [88] at 98 [D.C.Cir.1985]; ..." Id. at 784.4

Having read McSurely, cited in Baycol, the Court concludes that it does not apply to this case, at least not for the conclusion that Plaintiff advocates. Plaintiff argues that even though Linda Wallace's estate was not probated until May 2, 2012, John Wallace was a "successor" under Rule 25(a)(1). In McSurely, the decedents were the defendants who had named their wives as their executors but whose wills were never probated. The defendant-widows argued that they could not be proper parties for substitution, but the Court rejected this argument because it would be inequitable for the plaintiffs to "institute[e] machinery in order to produce some representative ad litem" for the opposing parties. McSurely, 753 F.2d at 98. More importantly, the McSurely court did not discuss whether the widows were proper parties for substitution under applicable state law.5

The Court concludes that Pennsylvania law determines whether John Wallace is the "proper party" for substitution and that under Pennsylvania law, he was not a "personal representative" of his late-wife's estate at the time Attorney Beatie filed the Motion to Substitute.

Having resolved this issue, the Court will address whether Attorney Osborn violated the requirements of Rule 25(a)(1). As stated before, Mrs. Wallace died on February 14, 2007, a Suggestion of Death was filed on October 26, 2007, and a Motion to Substitute was filed on January 8, 2008. On its face, the substance of the January 8, 2008 Motion to Substitute complied with Rule 25(a). However, the Order granting the Motion to Substitute was based on a misrepresentation made by then-counsel, Mr. Beatie, that John Wallace was the "personal representative" of Linda Wallace's estate.6 As such, Novartis has requested that this Court vacate the Order granting the Motion to Substitute. If the Court does so, the result would be that no proper party has been substituted for Linda Wallace since the Suggestion of Death was filed on October 26, 2007 over six years ago.

The Court finds that the Motion to Substitute was defective, and so, the Order granting the Motion was improper. The Court will, therefore, vacate Magistrate Judge Brown's previous Order.7

Attorney Osborn protests that he is not a wills and estates lawyer, so he advised all of his clients to find attorneys to help them comply with their local probate laws. Be that as it may, it was his responsibility to ensure that his clients became proper legal representatives in their cases. The law is well-established that "clients must be held accountable for the acts and omissions of their attorneys." United States v. Minor, 457 Fed.Appx. 119, 122 (3d Cir.2012) (quoting Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)); see also Brodie v. Gloucester Twp., 531 Fed. Appx. 234 (3d Cir.2013) ("the question is not whether the client did all he reasonably could in policing the conduct of his attorney, but rather if the attorney, as his agent, did all he reasonably could to comply with the deadline.") (internal citations and quotation marks omitted).

Finally, Attorney Osborn argues that Novartis waived its right to assert a Rule 25(a)(1) motion because it knew as early as 2008 that John Wallace was not the legal representative of Linda Wallace's estate. (Doc. 73, at 10) ("the information available to Novartis to support its recent motion was available to it in June 2008..."). He, however, cites to no evidence in the record to show what occurred in June 2008 that should have put Novartis on notice of Attorney Beatie's defective substitution. Moreover, in light of John Wallace's 2011 deposition testimony in which he confirmed that he was the "formal personal representative" of Linda Wallace's estate (J. Wallace Dep., Doc. 68-4, at 13:10-12), the Court is hard-pressed to find that Novartis should have divined that John Wallace was not the "proper party" under Rule 25(a) to substitute for Linda Wallace's estate. Novartis assumed the truth of plaintiffs counsel's filings, as it was entitled to do. See FED.R.CIV.P. 11(b).

As shown above, Mr. Osborn failed to comply with Rule 25(a) and his failure cannot be attributed to excusable neglect. Unfortunately, his client must bear the consequences of Attorney Osborn's neglect. For these reasons, this case should be dismissed with prejudice under Rule 25(a).

c. Petition for Abatement

Under Pennsylvania's survivorship law, "[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants." 42 PA. CONS.STAT. § 8302. "With the survival statute, ... the action survives and simply continues in the decedent's personal representative." Salvadia v. Ashbrook, 923 A.2d 436, 439-440 (Pa.Super.Ct.2007).

"Pennsylvania law provides that suit may only be brought by the personal representative of the decedent, meaning the administrator or executor of the estate." Knit With v. Knitting Fever, Inc., 742 F.Supp.2d 568, 588, n. 11 (E.D.Pa.2010). "For an executor or administrator to be appointed to administer the estate, a petition would have to be made for a grant of letters of administration or letters testamentary pursuant to 20 PA. CONS.STAT. §§ 3151 and 3155." Id.; see also Gee v. CBS, Inc., 471 F.Supp. 600, 615-16 (E.D.Pa.1979) ("a crucial limitation on the survival statute is contained in 20 PA. CONS. STAT. §§ 3372 and 3373; suit may only be brought by the personal representative of decedent, meaning (under 20 PA. CONST. STAT. § 102),8 the executor or administrator of the estate.").9 Thus, simply being named as the executor of his wife's estate in her will did not make John Wallace a "personal representative" under Pennsylvania law.

20 PA. CONS.STAT. § 3375.11 "The use of `shall' in the context of this statute reveals the legislature's mandatory directive to the court, i.e., the court must abate the action if the plaintiff fails to present a reasonable explanation for the delay in taking out letters of administration." Salvadia, 923 A.2d at 441 (emphasis in original). Thus, "even a liberal interpretation of section 3375 reveals that the legislature did not intend the court to consider prejudice in its determination of whether or not to grant a petition for abatement." Id. at 443.

Assuming for the sake of analysis that the Suggestion of Mrs. Wallace's Death was timely on October 26, 2007 (which it was not), the one-year statute of limitations under § 3375 expired on October 26, 2008. Yet, John Wallace did not obtain Letters Testamentary until May 2, 2012. To explain the delay, Attorney Osborn submitted an affidavit that he had submitted previously in a related action. (Osborn Aff., Doc. 73-4). In that affidavit, he states: "[i]n using the phrase `personal representative' [in the motion to substitute], we did not intend to suggest that the proposed plaintiff had been formally appointed by a court." (Id. at ¶ 9). "In those instances where formal court appointment had occurred, we attached Letters Testamentary or their equivalent if we had them." (Id. at ¶ 10). "In those instances where formal court appointment had not occurred, we asked our clients to obtain Letters Testamentary or their equivalent," because Attorney Osborn did not practice trusts and estates law. (Id. at ¶ 11). "Once the appropriate documents were obtained, we filed ... a Notice of Filing attaching those documents." (Id.). Attorney Osborn concludes his affidavit by stating, "we did not use the phrase `personal representative' as a term of art. We were simply identifying a proposed plaintiff to step into the shoes of the decedent and continue the lawsuit." (Id. at ¶ 15).

The Court finds these excuses insufficient. The CMO clearly outlined the procedures that were to be followed when filing Motions to Substitute. 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.12 Furthermore, Novartis points out that Attorney Osborn did not follow the approach outlined in Attorney Osborn's affidavit; that is, after Mr. Wallace finally obtained letters testamentary, Attorney Osborn never filed a "Notice of Filing attaching those documents." (Novartis Reply Brief, Doc. 74, at 5, n. 3) ("But the Osborn firm made no such later filing in this case when Mr. Wallace finally obtained his letters testamentary!").

Additionally, the Court notes that another MDL case reached the same conclusion on the issue of abatement under Pennsylvania law. In re Aredia and Zometa Products Liability Litigation (Spiese), No. 3-06-MD-1760, 2013 WL 2317743 (M.D.Tenn., May 28, 2013). The Court sees no reason to depart from this case.

Finally, the Court rejects Attorney Osborn's reliance on Berdine v. Washington Hosp., 17 Pa. D. & C. 3d 26, 30 (Pa.Com.Pl. 1980) for the same reasons set forth in Spiese (see below) and for the additional reason that Salvadia requires strict adherence to the one-year abatement statute. (Doc. 68-9, Ex. 9, at 18) ("First, there is no indication that the plaintiffs in ... Berdine misrepresented the facts in those cases.).

(Id. at 19).

Thus, Attorney Osborn's excuses do not "reasonably explain" the delay in John Wallace's appointment as his late wife's "personal representative" under Pennsylvania law, and the Court must abate this action according to § 3375. Therefore, on this basis alone, this case should be dismissed with prejudice.

d. Poulis Factors

When considering whether to dismiss a case because of a party's repeated dilatory conduct, a Court must consider:

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).

(1) The Extent of the Party's Personal Responsibility

In Poulis, the Third Circuit stated "[t]here has been no suggestion by any party or by the district court that the Poulis plaintiffs are personally responsible for the late pretrial statement, which was the basis for the dismissal. Indeed, [Attorney] Retos has acknowledged the delays were his responsibility." 747 F.2d at 868.

Although the Court is reluctant to attribute personal responsibility to John Wallace for all of his attorney's late filings, according to Attorney Osborn, "[i]n those instances where formal court appointment had not occurred, we asked our clients to obtain Letters Testamentary or their equivalent." (Osborn Aff., Doc. 73-4, at ¶ 11). If this is the case, then John Wallace also bears responsibility for failing to obtain Letters Testamentary until May 2, 2012, more than five years after his wife's death. To date, neither Mr. Wallace nor Attorney Osborn has explained this inordinate delay in probating Linda Wallace's estate. Also, as late as February 16, 2011, John Wallace confirmed that he was the "formal personal representative of [Mrs. Wallace's] estate," when this was untrue. (J. Wallace Dep., Doc. 68-4, at 13:10-12).

Moreover, the Third Circuit cautioned that "the Poulis' lack of responsibility for their counsel's dilatory conduct is not dispositive, because a client cannot always avoid the consequences of the acts or omissions of its counsel." 747 F.2d at 868. Therefore, to the extent that John Wallace's attorneys made misrepresentations to the Court that Mr. Wallace was the legal personal representative of Mrs. Wallace's estate, he cannot escape dismissal.

(2) Prejudice to the Adversary

Even excluding the other cases contained in the MDL, the Court finds that Novartis has had to bear significant costs in litigating this particular case. Linda Wallace filed this case on January 18, 2006, and Novartis has been defending it for nearly eight years. It engaged in significant motions practice at the MDL level before this case was remanded to the Middle District of Pennsylvania.

The undersigned became involved only last year, and within that time, Novartis has expended considerable time and resources in litigating this case. On August 5, 2013, this Court held a Daubert hearing on August 5, 2013 which spanned seven-and-a-half hours. Prior to the hearing, Novartis filed briefs in opposition to each of Plaintiffs six experts. Following the hearing, Novartis filed the pending Motion to Dismiss (Doc. 67) and supporting brief.

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. Novartis has been prejudiced by being exposed to prolonged and unnecessary litigation.

(3) History of Dilatoriness

The CMO clearly cautions plaintiffs that failure to comply with its provisions "will entitle Defendant to request a dismissal of plaintiffs action with prejudice in accord with FED.R.CIV.P. 25(a)." (CMO, Doc. 68-6, Section V.C.3). The provisions in the CMO pertaining to substitution were not mere formalities. Because of the nature of the plaintiffs' conditions in the MDL cases, strict rules governing substitution were necessary as the likelihood was high that many of the plaintiffs would die from their cancers before the conclusion of their cases. In fact, in May 2011, Magistrate Judge Brown wrote that he was "concerned that there appears to be a growing problem with substitution when a plaintiff dies." (Doc. 68-7, Ex. 7). As a result, he directed the Plaintiffs' Steering Committee "to remind all counsel of the requirements of the scheduling order concerning substitution when a Plaintiff dies, and to insure that when motions to substitute are filed that they include appropriate documentation from the state court that the person designated for substitution is appropriately qualified under state law." (Id.). In fact, other courts have commented on Attorney Osborn's dilatory conduct.

Ackerman v. Novartis Pharms. Corp., No. 5:13-cv-51-Oc-22PRL (M.D.Fla. June 13, 2013) (Doc. 74-8, Ex. H);13 see Section IV infra.

Attorney Osborn cannot plead ignorance of the requirements expected of him after Linda Wallace died. He was fully aware of his obligations regarding substitution and failed to meet them, as described above.

Yet, even in the relatively brief period of time that the undersigned has presided over this case, Attorney Osborn has displayed a history of dilatoriness. Attorney Osborn has never timely filed any brief in this Court and has instead requested extensions for every deadline imposed on him.

He requested an extension of time to file a response to Defendant's Motion for Additional Daubert Briefing (Doc. 39), which Novartis opposed (Doc. 40). The Court granted the extension of time over Defendant's objection. (Doc. 42). Then, after the Court scheduled the Daubert hearing for August 5, 2013, Attorney Osborn filed a Motion for Extension of Time to File and Motion to Adjourn Daubert Hearing (Doc. 61). The Court granted the motion in part and denied it in part. (Doc. 62). It granted him additional time to file a Reply Brief to Defendant's Objections to Plaintiffs proposed experts, but denied the request to postpone the Daubert hearing. In so denying, the Court wrote:

(Doc. 62, at ¶ 1(b)(i)). In that same Order, the Court stated, "[t]he parties are reminded that all lings with this Court must comply with the Local Rules, which require that all motions be accompanied by a Certificate of Concurrence or Non-Concurrence (LR 7.1) and a Proposed Order (LR 5.1(g))," because Plaintiffs motion for extension of time had not complied with the Local Rules of the Middle District of Pennsylvania. (Id. at ¶ 2).14

Then, after Defendant filed its Motion to Dismiss (Doc. 67), Attorney Osborn requested an extension of time to file a response. (Doc. 71). The Court granted the motion with the following caveat:

(Doc. 72, at ¶ 3). The Court would have been well within its authority to deny any of Plaintiffs motions for extensions of time because of their procedural defects,15 but in the interests of expediting the case, chose not to require strict adherence. Regardless, the cumulative and consistent tardiness of Attorney Osborn clearly establishes a history of dilatoriness that weighs in favor of dismissal.

(4) Whether the Conduct of the Party or the Attorney was Willful or in Bad Faith

Having established that Attorney Osborn neglected his obligations under the CMO and, consequently, Rule 25(a), the Court must determine whether Attorney Osborn's conduct was willful or in bad faith.

At the risk of repeating itself, the Court finds that Attorney Osborn was aware of what his obligations were, but failed to meet them.

Spiese, 2013 WL 2317743, at *4.16 He has attempted to attribute his negligence and his constant need for additional time to his substantial caseload. For instance, in his most recent Motion for Extension of Time, he stated:

(Doc. 71).

Attorney Osborn knew what his caseload was and should have known what resources diligent pursuit of these cases would require of him. His decision to take on a high-volume and apparently unmanageable caseload must have been known to him, and to the extent it was knowing, it was willful.

(5) The Effectiveness of Sanctions Other Than Dismissal

Dismissing a case with prejudice for repeated failures to meet deadlines or to comply with court orders is never a favored approach. Nevertheless, both this Court and the MDL Court provided several warnings to Attorney Osborn about his lack of compliance with the CMO, Rule 25(a), and the Local Rules. In light of these consistent and repeated failures, the Court concludes that less drastic sanctions are inadequate. Attorney Osborn's neglect "in this case has burdened the Court, strained scarce court resources, delayed disposition of this case, and prejudiced Defendant." Spiese, 2013 WL 2317743, at *6.

(6) The Meritoriousness of the Claim or Defense

Despite having not yet ruled on the pending Daubert motions, 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.

IV. Conclusion

Finally, this Court is not the first to find that this action should be dismissed for failure to substitute the "proper party" under applicable state law, for violating Rule 25(a), and for violating the terms of the MDL's CMO. See, e.g., Blumenshine v. Novartis Pharms. Corp., No. 08-0567-CV-W-SOW (W.D.Mo. July 23, 2013) (Doc. 68-10, Ex. 10); In re Aredia and Zometa Products Liability Litigation (Cole), No. 3:06-MD-01760, 2013 WL 2477224 (M.D.Tenn. June 10, 2013) (Doc. 68-12, Ex. 12); Carter v. Novartis Pharms. Corp., No. 4:12-CV-605-DPM (E.D.Ark. June 4, 2013) (Doc. 73-5, Ex. E); In re Aredia and Zometa Products Liability Litigation (Spiese), No. 3-06-MD-1760, 2013 WL 2317743 (M.D.Tenn., May 28, 2013); In re Aredia and Zometa Products Liability Litigation (K. Wilson), No. 3:06-MD-01760, 2013 WL 1984389 (M.D.Tenn. May 13, 2013) (Doc. 68-11, Ex. 11); see also Jacqueline Wilson v. Novartis Pharms. Corp., No. 4:12-CV-684-A, 2013 WL 593895, at *3 (N.D.Tex. Feb. 15, 2013); McDaniel v. Novartis Pharms. Corp., No 2:08-CV-02088, 2012 WL 32608 (W.D.Ark. Jan. 6, 2012).17

For the foregoing reasons, the Court will grant Defendant's Motion to Dismiss (Doc. 67). As a result, Defendant's pending Daubert motions are moot. A separate Order follows.

ORDER

AND NOW, THIS 27TH DAY OF NOVEMBER 2013, upon consideration of Defendant's Motion to Dismiss (Doc. 67) and all accompanying briefs, IT IS HEREBY ORDERED THAT: