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Rougeau v. Phillip Morris USA, Inc.

Superior Court of Massachusetts, Suffolk

June 19, 2019

Russell ROUGEAU
v.
PHILLIP MORRIS USA, INC. et al.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF’S MOTION FOR SUBSTITUTION OF PARTY PURSUANT TO RULE 25

          Mitchell H. Kaplan, Justice

         This is one of the many tobacco products liability cases pending in this session. Plaintiff Russell Rougeau filed this action against Phillip Morris USA, Inc. (PM) and other defendants on January 3, 2017. On December 2, 2017, Rougeau died of lung cancer. On January 17, 2018, the Norfolk Probate and Family Court appointed John H. Rougeau (John), the decedent’s son, as the Personal Representative of his father’s estate. That appointment was made pursuant to a Petition for Informal Appointment of Personal Representative. Thereafter, even though John had been appointed Personal Representative through the informal appointment process, John filed a second Petition for Formal Appointment of Personal Representative of his father’s estate. An order allowing that second Petition issued on January 29, 2019. On April 3, 2019, the defendants served a Motion to Dismiss the complaint for failure to file a motion to substitute a personal representative of the decedent’s estate for the deceased plaintiff within the one-year period set out in Mass.R.Civ.P. 25(a) (the Motion to Dismiss). The Motion to Dismiss relied upon the date John was appointed pursuant to the informal procedure. On April 10, 2019, John filed a Rule 25(a) motion to be substituted as plaintiff in this action as the Personal Representative of his father’s estate (the Substitution Motion). John maintained that this was well within a year of his appointment pursuant to the formal procedure. For the reasons that follow, John’s Substitution Motion is ALLOWED and the defendant’s Motion to Dismiss is DENIED.

         DISCUSSION

         The court notes that given the unique circumstances presented by this case, its decision resolving this dispute will likely have no precedential value of any kind.

         In another of the tobacco cases pending in this session, Bennett v. R.J. Reynolds Tobacco Company, CA No. 17-603 BLS1, this court held that a person appointed a personal representative of an estate under G.L.c. 190B, § 3-108, because the petition was filed more than 3 years after the decedent’s death- a so-called Late and Limited Formal Proceeding- does not have standing to bring tort claims on behalf of the decedent or wrongful death claims under G.L.c. 229, § 2. That decision was issued on January 18, 2018. This was a question of first impression under the Massachusetts version of the Uniform Probate Code, and, for that matter, had received very little attention in other states that have adopted the UPC. During oral argument on that motion the parties and the court (none of whom were particularly conversant with probate law) loosely used terms like formal and informal probate, neither of which was actually germane to the issue then in dispute.

         In any event, the nature of the argument on that motion and the court’s decision in Bennett, apparently prompted John to refile his petition for appointment as personal representative of his father’s estate as a formal proceeding; even though he had already been appointed personal representative in an informal proceeding and the fact that the appointment was pursuant to informal proceeding did not restrict his capacity to serve as plaintiff in this case. His Substitution Motion is timely if measured from the date his formal petition for appointment was allowed by the Probate Court, but untimely if measured from the date of the order entered following the informal proceeding.

         As relevant to this case, Mass.R.Civ.P. 25(a) provides that when a party dies after filing suit, and the claim survives his death, a motion for substitution of the proper party must be filed. "Unless the motion for substitution is made within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon notice and hearing, be dismissed ..." In Motta v. Schmidt Manufacturing Corp., 41 Mass.App.Ct. 785 (1996), the Appeals Court held that Mass.R.Civ.P. 6(b), allowing enlargement of time to perform an act for excusable neglect, applies to all the rules of civil procedure, including Rule 25(a).

         In this case, the court concludes that (1) when a Probate Court allows an appointment of a personal representative pursuant to a formal proceeding, filed within months of appointment pursuant to an informal proceeding, the one-year date may be measured from the date of second appointment, or, alternatively (2) under the unique circumstances of this case, in which the argument and decision concerning the issue raised in Bennett could mislead a person such as John into believing that his appointment as personal representative in an informal proceeding might be viewed as inadequate to serve as a plaintiff in a tort/wrongful death action arising out of his decedent’s death, it was excusable neglect to file a second formal proceeding for appointment and believe that the date of appointment pursuant to that formal proceeding was the applicable date for measuring compliance with Rule 25(a).

         ORDER

         For the foregoing reasons, John’s Substitution Motion is ALLOWED and the ...


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