7th Circuit agrees lawyer’s mistake was ‘inexcusable attorney negligence’

Four plaintiffs seeking Cook Medical liable have lost their ability to continue in the multidistrict litigation after the 7^th Circuit Court of Appeals affirmed the denial of a motion to reconsider the dismissal of their cases because their attorney missed a filing deadline.

Attorney Nicholas Farnolo of Napoli Shkolnik in New York helped the four plaintiffs – Laurie Sides, Lisa Ward, Lydia Terry and Ralph Brandon – file short-form complaints in the long-running MDL case against Indiana-based Cook Medical over the IVC filters.

The plaintiffs were then required to complete a profile form with general personal and medical background information and details about their device and alleged injuries. Farnolo never responded to either the plaintiffs who told him they did not have the forms or Cook’s motion to dismiss. Subsequently, the U.S. District Court for the Southern District of Indiana granted the defendant’s motion.

A year later, after one of his clients notified him of the dismissal, Farnolo filed a motion to reconsider and reinstate the cases, seeking relief under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6). He attributed his failure to timely respond to “new filtering rules to his email inbox” which pushed the dismissal order to his junk mail folder.

The district court denied Farnolo’s motion, finding, in part, the motion for reconsideration was brought 13 months after the dismissal which was not “within a reasonable time.” Also the court noted that under Rules 69(b)(1) or 60(b)6), Farnolo’s neglect was inexcusable.

On appeal, the 7^th Circuit affirmed the denial of the motion for reconsideration in In Re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, 20-3279, 20-3280, 20-3281 & 20-3282.

The appellate panel sympathized with the plaintiffs but found Rule 60(c ) embodies a mandatory claims-processing rule rather than one limiting a district court’s subject matter jurisdiction. As such, the 7^th Circuit held the district court did not abuse its discretion in denying the plaintiffs’ motion.

“The consequences of attorney Farnolo’s neglect are not lost on us: Sides, Ward, Terry, and Brandon are real people alleging real injuries. They wanted to pursue claims in the MDL, only to see their cases dismissed because of Farnolo’s avoidable mistakes,” Judge Michael Scudder wrote for the court. “But Rule 60(c) is clear, and this is not the type of ‘extraordinary case’ where the party seeking to set aside the judgment could not possibly have discovered the ground for doing so within one year,” Scudder wrote for the court, citing Lowe v. McGraw‐Hill Cos., Inc., 361 F.3d 335, 342 (7th Cir. 2004).

“If Farnolo had taken any of the steps outlined in the district court’s order—confirmed receipt of his clients’ profile forms, monitored the MDL docket more closely, or checked his clients’ individual docket sheets—he could have avoided dismissal in the first instance, and certainly could have complied with Rule 60(c)’s one‐year window for filing a motion for reconsideration,” Scudder concluded.