WILLIAM L. STANDISH, District Judge.
Pending before the Court is a motion by Defendants Ethex Corporation ("Ethex") and K-V Pharmaceutical Company ("K-V"), seeking summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. No. 18.) For the reasons that follow, Defendants' motion is granted and summary judgment is entered in their favor.
According to the Complaint, K-V manufactures morphine sulfate extended release tablets ("morphine tablets"); Ethex, a wholly-owned subsidiary of K-V, markets and sells the morphine tablets throughout the United States. In November 2008, Jacqueline Kerr, a resident of Earlyville, Virginia, was prescribed 15 milligram morphine tablets manufactured and distributed by Defendants. After taking the tablets r about a week, Mrs. Kerr informed her physician, Dr. Robert Pritchard, that the prescribed dosage did not relieve her pain. Dr. Pritchard instructed her to increase her dose from one 15 mg tablet twice a day to two 15 mg tablets twice a day. On the evening of November 9 and the morning of November 10, 2008, Mrs. Kerr followed these instructions.
Later on the evening of November 10, Mrs. Kerr was admitted to the intensive care unit at Martha Jefferson Hospital in Charlottesville, Virginia, with acute respiratory failure. Throughout twelve days in the hospital, she experienced low blood pressure, diarrhea, and difficulty breathing, all of which were attributed to an overdose of extended release morphine sulfate. Mrs. Kerr was subsequently released from the hospital but continued with intravenous chemotherapy.
While Mrs. Kerr was hospitalized, Ethex recalled certain lots of the morphine tablets, including those from which her prescription was filled, because the tablets were oversized and contained as much as twice the stated amount of morphine sulfate.
After several months, Mrs. Kerr was deemed too weak to continue chemotherapy due to respiratory failure and morphine overdose. She died intestate on May 27, 2009. James Kerr, her husband, died on September 5, 2010.
Acting as t executors of James Kerr's estate, Plaintiffs filed suit in this Court on November 2, 2010, stating six claims against Defendants: strict products liability, breach of implied warranty, breach of express warrant s, negligence, negligent misrepresentation, and breach of the Virginia Consumer Protection Act, Va. Code Ann. § 59.1 196 ("the VCPA.") In each claim, Plaintiffs alleged that Mrs. Kerr sustained severe physical injuries, including death, severe emotional distress, economic losses, and consequential damages as the result of the Defendants' actions; Mr. Kerr likewise suffered severe physical injuries, including death, severe emotional distress, and loss of consortium due to the death of his wife. Plaintiffs sought compensatory, punitive and exemplary damages, as well as attorneys' fees and treble damages under the VCPA. (See Doc. No. 12 at 2.)
Defendants filed their answers to the Complaint and, after an initial case management conference with the Court, the parties engaged in a brief period of discovery in preparation for mediation which was scheduled for early July 2011.
On June 21, 2011, Defendants moved to dismiss the Complaint under Fed.R.Civ.P. 12 (b) (6), arguing that none of the Plaintiffs had standing under Virginia law to pursue this matter. (Doc. No. 18.) Defendants provided several documents in support of their motion which the Court concluded were not appropriately considered without converting the motion to one r summary judgment. An order was entered to that effect on October 25, 2011 (Doc. No. 22), and the parties were given an opportunity to provide additional evidence and to amend their briefs. Both Plaintiffs and Defendants having responded to the Order of October 25, 2011, the matter is now ripe for disposition.
As noted above, Jacqueline and James Kerr were at all times residents of the Commonwealth of Virginia. Plaintiffs Malicia and Dale Conley (collectively, "the Conleys") are also Virginia residents, and Plaintiff Sheila Davison is a resident of Pennsylvania. According to its answer to the Complaint, Ethex is a corporation organized under the laws of the State of Missouri with its principal place of business in that state, and K-V is a corporation organized under the laws of the State of Delaware, also with its principal place of business in Missouri. This Court therefore has jurisdiction based on complete diversity of the parties and, according to the Complaint, an amount in controversy in excess of the statutory minimum. See 28 U.S.C. § 1332(a)-(c).
According to Plaintiffs, venue is appropriate in this Court under 28 U.S.C. § 1391(a) (1) and (c) because Defendants maintain continuous and substantial contacts with the forum state, thus subjecting them to personal jurisdiction in this District; Defendants do not dispute this assertion.
A court may grant summary judgment if the party so moving can show "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a);
In considering a motion for summary judgment, the court must view all evidence in the light most favorable to the non-movant, accept the non-movant's version of the facts as true, and draw all reasonable inferences and resolve any conflicts in its favor.
Once the movant has demonstrated that there are no genuine issues of material fact, the burden shifts to the non-moving party to "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file."
Although the parties were invited to provide additional evidence in support of their respective positions, very little was presented. We summarize here the facts from documents which the Court declined to review in considering the motion to dismiss and documents recently submitted by Plaintiffs.
1. Defendants' documents: Defendants attached to the brief in support of their motion an e-mail exchange which initiated their concern that none of the Plaintiffs had standing to pursue this matter. During the limited discovery prior to mediation, Defendants sought medical records from Dr. Pritchard, the physician who had prescribed the morphine tablets, and from CVS Pharmacy ("CVS") which had filled the prescription for Mrs. Kerr. On April 5, 2011, when counsel for Defendants contacted Plaintiffs' counsel seeking those records, counsel responded that if he were provided with the necessary medical authorizations, he would see that they were executed. (Doc. No. 19, "Defs.' Brief," Exh. B.) The following day, Plaintiffs' counsel returned the executed authorizations, signed by Ms. Davison, along with a copy of a will addendum prepared by Mr. Kerr to support her authority to handle "any and all lawsuits related to the death or illness of his wife Jacqueline Kerr." (Defs.' Brief, Exh. C at 2.) On May 12, with mediation scheduled less than two weeks later, CVS had still not provided the records. Despite having received copies of the death certificates of both Mr. and Mrs. Kerr, notification of this lawsuit, and the authorization signed by Ms. Davison, CVS informed counsel it could not process the request because it needed "documentation demonstrating Shelia Dovison [sic] is the Personal Representative/Administrator/Executor of the estate of the deceased." (Defs.' Brief, Exh. D at 2.) Even after CVS was informed that both Mr. and Mrs. Kerr were deceased and Ms. Davison was their daughter, the pharmacy refused to release the records and requested "a copy of the actual certified appointment by the probate court." (
Defendants then contacted Plaintiffs' counsel via e-mail, indicating that the pharmacy needed a copy of the probate court appointment for Ms. Davison. (Defs.' Brief, Exh. F.) After some clarification of exactly what was needed, Plaintiffs' counsel responded "There is no estate. . so there's no court appointment; no letters; etc." (
Approximately three weeks later, on June 8, 2010, Mr. Kerr prepared a "Last Will and Testament" ("the Will.") In that document, Mr. Kerr did not mention Ms. Davison or her role as his executor, but provided for Mr. and Mrs. Conley. First, Mr. Kerr stated, "In the event that I become mental [sic] disabled, I grant Malacia [sic] Ann Conley and Dale Edward Conley full power of attorney." Second, Mr. Kerr gave all of his possessions to the Conleys collectively except for an automobile which was given to Mrs. Conley. The Conleys were also directed to arrange for Mr. Kerr's burial and were to receive "any remaining money." The Will explicitly stated that in making it, Mr. Kerr intended to "hereby revoke any and all others [sic] wills and codicils heretofore made by me." The Will was notarized in Green County, Virginia.
With their response to the Order of Court regarding conversion of the motion to dismiss to a motion for summary judgment, Plaintiffs provided two other documents. (Supplemental Response in Opposition to Defendants' Motion to Dismiss, Doc. No. 24, Exhs. 1 and 2.) On December 1, 2011, Ms. Davison (referred to as Sheila Davison-Fenkner) had received documents entitled "Certificate/Letter of Qualification" from the deputy clerk of the Albemarle County Circuit Court, indicating that she had been qualified as administrator of the estates of James Kerr and Jacqueline Kerr under Va. Code Ann. § 8.01-50, § 8.01-25, and/or § 64.1-75.1 ("the Qualification Letters.") The documents also indicated that Ms. Davison had posted bond in the amount of $1,000 with regard to each estate.
Defendants raise a single argument their motion, namely, that the Conleys and Ms. Davison do not have standing to pursue this suit on behalf of the estate of Mrs. Kerr.
Plaintiffs respond that Virginia laws regarding proper parties and standing are procedural and not binding on this Court. As a Court sitting in diversity, this Court should apply Pennsylvania procedural laws on those issues. (Plfs.' Brief at 1-2.) Even if the Court were to apply Virginia rather than Pennsylvania law, Plaintiffs have standing because Mr. Kerr's Will gives the Conleys full power of attorney, reflecting his intent to name them as his executors. Moreover, the Addendum names Ms. Davison as his executor for purposes of prosecuting all lawsuits related to the death and/or illness of Mrs. Kerr. Therefore, all three Plaintiffs qualify as the personal representatives of Mr. Kerr's estate with standing to bring this action. (
Third, Plaintiffs contend that Ms. Davison is a proper party to pursue the wrongful death action under Pennsylvania law because she is a "person entitled by law to recover damages in such an action," inasmuch as she is named in Mr. Kerr's will as the beneficiary of this action and trustee for another beneficiary. (
Because the parties dispute the question of whether the law of Pennsylvania or Virginia should control in this matter, the Court must perform a choice-of-laws analysis. This task is made more difficult because Plaintiffs fail to articulate in the Complaint exactly the type of action they intend to bring. The claims are styled as strict products liability, breach of express and implied warranties, negligence, negligent misrepresentation, and breach of the Virginia Consumer Protection Act. These are claims Jacqueline Kerr could have brought had she lived and her husband could have brought on behalf of her estate, had qualified as the administrator
1. Plaintiffs' status: Before moving to the choice-of-laws analysis, we find it necessary to clarify Plaintiffs' stat us at the time the Complaint was filed. Plaintiffs argue that by giving the Conleys power of attorney in the Will dated June 8, 2010, Mr. Kerr intended to make them s executors, even though they were not identified by that specific term. (Plfs.' Brief at 2.) The Will states: "in the event that I become mental [sic] disabled, I grant Malacia [sic] Ann Conley and Da Edward Conley full power of attorney." There is no evidence Mr. Kerr ever became mentally disabled and Plaintiffs fail to explain how the grant of the power of attorney conditioned on Mr. Kerr becoming mentally disabled equates to his intent to appoint them as executors of his Will. Nor do we find any other language in the Will to support that conclusion.
In addition, Plaintiffs argue that under Virginia law, an executor named in a will need take no other steps to act as such and that therefore the Conleys are qualified by virtue of being named in the Will as having power of attorney. (Plfs.' Brief at 2, citing Va. Code Ann. § 1-234.) Contrary to Plaintiffs' position, Virginia law explicitly provides:
Va. Code Ann. § 64.1-136. Powers of executor before qualification. (Emphasis added by the Court.)
There is no evidence either Mr. or Mrs. Conley qualified as executor of Mr. Kerr's will by taking an oath and giving bond or even that his Will was "admitted to record." There is no evidence Jacqueline Kerr left a will, therefore neither of the Conleys could be cons red her executor, nor is there any evidence showing either of them took s to be named administrator of her estate. Finally, there is no evidence either Mr. or Mrs. Conley is a child, spouse or parent of Mr. or Mrs. Kerr, a status which, as discussed below, could potentially give them standing under Pennsylvania In sum, use the Conleys could not achieve standing to pursue t claims herein on behalf of themselves or the Kerrs' estates under either Pennsylvania or Virginia law, we need not refer to them in the discussions which follow.
Plaintiffs also argue that Ms. Davison was named executor of Mr. Kerr's estate for the purpose of pursuing any legal actions concerning the death of his wife. However, we note that this appointment appears only in the Addendum dated May 15, 2010. The Will executed on June 8, 2010, explicitly revoked all prior "wills and codicils." Under either Pennsylvania or Virginia law, a will may be revoked in whole or in part by "some other will or codicil in writing." 20 Pa. C.S. § 2505; Va. Code Ann. § 64.1-58.1 ("If a testator executes a will or other writing in the manner in which a will is required to be executed, and such will or other writing expressly revokes a previous will, such previous will, including any codicil thereto, is thereby void and of no effect.") Consequently, we conclude that by the Will of June 8, 2010, Mr. Kerr revoked his appointment of Ms. Davison as his executor. Thus, at the time the Complaint was filed, contrary to the caption, Ms. Davison had not been named executor of Mr. Kerr's estate, much less qualified as such under Va. Code Ann. § 64.1-136. And, as previously discussed, Mrs. Kerr died intestate and therefore Ms. Davison could not have been named her executor.
2 Outline for the choice-of-laws analysis; The crux of the motion for summary judgment is Defendants' contention that none of the Plaintiffs has standing to proceed with their claims. "While the question of in whose name a suit must be brought is procedural, and thus governed by federal law, that question must be answered with reference to substantive state law."
As a preliminary step to the analysis, we must identify each "particular issue before the court" because it could well be that different states' laws could apply to separate issues. See
Once the issues are identified, this Court applies the choice-of-law rules of Pennsylvania.
3. Standing to bring a wrongful death ac on under Pennsylvania and Virginia law: In both Pennsylvania and Virginia, the question of who may bring a wrongful death action is determined by statute, arriving at somewhat different results. In Pennsylvania, "the right of action. . shall exist only for the benefit of the spouse, children or parents of the deceased." 42 Pa. C.S. § 8301(b).
Pa.R.Civ.P. 2202(a)-(b).
Under Pennsylvania law, the phrase "personal representative" means the administrator or executor of an estate who has been "duly qualified by law to bring actions within this Commonwealth." Pa.R.Civ.P. 2201. To be appointed to oversee the estate, the putative representative must petition for a grant of letters of administration or letters testamentary pursuant to 20 Pa. C.S. § 3151 or §3155. But, as noted in Rule 2202(b), if no action wrongful death has been filed by the personal representative with six months of the decedent's death, "any person entitled by law to recover damages" — meaning the spouse, child, or parent of the deceased — may bring suit on behalf of the other eligible beneficiaries.
Under Virginia law, a suit for wrongful death "shall be brought by and in the name of personal representative of such deceased person within t time limits specified," i.e., within two years from the date of death.
Having reviewed the law of the two jurisdictions, we conclude there is a true conflict with regard to Ms. Davison's standing to pursue this action. There is no evidence personal representatives of the estates of Mrs. Kerr or of Mr. Kerr brought a wrongful death action within six months of their deaths. Therefore, under Pa.R.Civ.P. 2202 (b), Ms. Davison, the Kerrs' daughter, would have standing to pursue a wrongful death action against Defendants on behalf of herself and any other children of the Kerrs.
As we see it, the conflict arises from the fact that Pennsylvania public policy is to provide a "fall-back" option which allows the closest relatives of the decedent and those with the most likelihood of economic dependence on that person to act as plaintiff and pursue a wrongful death action without the extra legal burden of qualifying as the executor or administrator of the estate. See
Both these policies cannot be satisfied simultaneously. We must there continue with the choice-of-laws analysis and determine which state has the greater interest in application of its law. S we apply the choice-of-laws jurisprudence of this state, our discussion is governed by
In requiring an analysis based on determining which state had the "most interest in the problem," the Pennsylvania Supreme Court followed what would later become Section 145 of the Restatement (2d) Conflict of Laws.
However the "analysis requires more than a mere counting of contacts," as the court "must weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the particular issue."
In addition, under Section 146 of Restatement (2) Conflict of Laws,
We conclude that the Commonwealth of Virginia has the greater interest in seeing that its law regarding wrong death actions is applied Mrs. Kerr was a resident of Earlyville, Albemarle County, Virginia, at the t Dr. Pritchard prescribed the extended release morphine tablets, the prescription was filled at a CVS located in Virginia, she was treated in a Virginia hospital after sting the lets, and, apparently, s died in Virginia. The fact that the all torts, both the wrongful death cause of action and the underlying products liability, negligence and negligent misrepresentation all occurred in Virginia weighs particularly in favor of applying Virginia law under Restatement (2d) Conflict of Laws § 146. Similarly, Mr. Kerr lived in Virginia, any personal injuries he suffered as a result of his wife's illness and death likely occurred Virginia, and his last will was made and notarized in Virginia. The only contacts with Pennsylvania in evidence are that Ms. Davison is a resident of Schuylkill County and the subsequently revoked Addendum was to be construed according to t laws of Pennsylvania and was notarized in Pennsylvania. In sum, the contacts between the Commonwealth of Virgin and the events giving rise to the claims are significantly greater than those between Pennsylvania and the events.
4 The effects of applying Virginia law: It is abundantly clear from the Virginia law stat above that Ms. Davison, who was neither executor nor administrator of her parents' estates at time suit was filed, cannot maintain is action. Our discussion would be incomplete, however, if we did not address two additional issues.
First, Plaintiffs argue that even if none of them was properly identified as executor of Mr. Kerr's will at the time the act was filed, there is an exception to the general rule in Pennsylvania t the caption of a suit cannot be amended to replace an improperly identified party with another, distinct legal entity after statute of limitations has expired. See
Plaintiffs argue that
The court in
However, the distinguishing feature of
The same is true here. That is, Ms. Davison clearly did not apply for the Qualification Letters until December 1, 2011, more than three years after her mother's death. Thus, even if Pennsylvania law applied, her appointment would not relate back. Moreover, the Virginia Supreme Court has explicitly rejected the doctrine of "relation back," even if the person became qualified as the personal representative of the decedent after bringing suit. See
Finally, it is clear that Ms. Davison's qualification as administrator of her parents' estates in December 2011 cannot rescue her suit. Under Virginia law, "when a party without standing brings a legal action, the action so instituted is, in effect, a legal nullity."
The Virginia Supreme Court has also clearly held that "a new plaintiff may not be substituted for an original plaintiff who lacked standing to bring the suit."
Because none of the proposed Plaintiffs have standing to pursue the matters raised herein, summary judgment is granted in favor of Defendants and this case is dismissed in its entirety. Appropriate orders follow.
Virginia law, on the other hand, recognizes a survival action for injuries sustained by the victim, but if the person dies as a result of the wrongful act, the survival action must convert to a wrongful death action.
The federal district court certified these questions and arguments to the Virginia Supreme Court which rejected them. The court concluded "there is nothing in the language of § 8.01-229(B) (6) indicating the legislative intent to eliminate the necessity of a personal representative having qualified at the time an action is filed or to relate a later qualification back to the date of the filing [of the law suit.]"
