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U.S. Supreme Court

Dead, Cautious Clients May Spoil High Court Appeals

Posted Sep 20, 2007 6:59 AM CDT
By Debra Cassens Weiss

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One client whose balloon catheter burst later died, but his lawyer sought a U.S. Supreme Court appeal without knowing it. Another client who sued the administrator of a 401(k) plan withdrew his money from the account at issue. And now Supreme Court appeals filed in their names could be tossed.

Motions to dismiss have been filed in both cases, Legal Times reports.

The issue in the catheter case, Riegel v. Medtronic, is whether a lawsuit against the manufacturer is pre-empted by the Food and Drug Administration’s approval of the device. The plaintiff’s original lawyer in the case, Wayne Smith of Schenectady, N.Y., learned his client had died in December 2004 when he called him in June to tell him cert was granted. The new lawyer, Allison Zieve of the Public Citizen Litigation Group, said the client’s widow didn’t think she needed to tell lawyers of the death.

"I know it sounds like a long time not to talk to your client," she told the legal publication, but said it’s not unusual to keep clients informed by mail during the appellate stage of litigation. The maker of the catheter cites a court rule that requires a substitution of parties within six months of a litigant’s death.

"An attorney's failure for more than two and a half years ever to speak with a client or otherwise ascertain that client's wishes (as opposed to simply inferring them from silence) ... cannot conceivably be deemed excusable neglect,” says the motion by the device maker, Medtronic.

At issue in the other case, LaRue v. DeWolff, Boberg & Associates, is whether a pension plan participant can sue the administrator for investment losses under the Employee Retirement Income Security Act. Lawyers defending the plan say the cautious plaintiff’s withdrawal of funds leaves him without a “cognizable interest” in the case. But the plaintiff contends he shouldn’t have to leave his money with a "thief or mismanager" while the case is pending.

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