United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO
Ethicon, Inc., et al. Civil Action No. 2:15-cv-02800
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
October 12, 2017, I stayed this case to allow the plaintiff,
Mary Dickson, Personal Representative of the Estate of Vada
Mae Smith (hereinafter, “the Estate”), to (1)
obtain counsel or (2) provide the court with evidence that
she is the sole beneficiary of the Estate and that the Estate
has no creditors. [ECF No. 32].
October 23, 2017, Mary Dickson, Personal Representative of
the Estate, filed a number of documents in response to this
court's October 12, 2017 order. [ECF No. 34]. Among these
documents, the plaintiff included copies of records from the
County of Greenbrier, West Virginia, recognizing that the
decedent died intestate, that she has six heirs, the
plaintiff has assumed the role of administratrix of the
Estate, and that the county published notice of the opening
of the Estate for probate. The plaintiff also included five
signed documents, purportedly waivers of any property
interest in the Estate, executed by John Wayne Buckland II
(decedent's grandson), Angelica R. Buckland
(decedent's granddaughter), David Buckland
(decedent's son), and Robbie Buckland (decedent's
grandson), and James Buckland (decedent's son). Together,
disregarding the plaintiff herself, four of the five
identified heirs to the Estate each signed a waiver. Ruth
Buckland, having died in January 2017, did not to sign a
waiver. Instead, the plaintiff procured the waiver of Robert
Buckland, Ruth Buckland's son, who agreed to sign on his
January 2, 2018,  defendants Ethicon, Inc. and Johnson &
Johnson (collectively, “the defendants”) filed a
reply challenging the filing's compliance with my order
that the plaintiff provide the court with evidence that she
is the sole beneficiary of the Estate and that the Estate has
no creditors (the “Reply”) [ECF No.39]. The
documents do not evince, the defendants argue, that the
plaintiff is the sole beneficiary of the Estate because the
purported waivers do not conform to certain provisions of the
Uniform Disclaimer of Property Interests Act, which require
among other things that:
a disclaimer must be in writing, declare the disclaimer,
describe the interest or power disclaimed, be signed by
the person making the disclaimer, be acknowledged in such
a manner as would authorize a deed to be admitted of record
and be delivered or filed in the manner provided in section
twelve of this article.
W.Va. Code § 42-6-5(c) (emphasis added). According to
the defendants, the attached waivers neither describe the
interest disclaimed, nor were “acknowledged in such a
manner as would authorize a deed to be admitted of
these defects, the defendants also challenge the waiver
executed by Robert Buckland. The defendants argue that the
plaintiff has made no showing that Robert Buckland is
authorized to on behalf of his mother's estate.
Therefore, the defendants claim, his waiver is a nullity. The
defendants also argue that the papers submitted do not denote
the existence or absence of creditors.
the filing of the defendants' Reply, the plaintiff
submitted additional papers in response to the deficiencies
articulated by the defendants in their Reply [ECF No. 41].
Included among these papers is a letter from the Joni Harrah,
Fiduciary Supervisor of Greenbrier County, representing that
the Estate has no creditors. Also among these papers are
updated “waivers” signed by the same five
individuals listed above. These new waivers now include the
seal of a notary public.
reviewed these documents thoroughly. To establish the absence
of creditors, the plaintiff produces a document annotated
with Greenbrier County letterhead reporting the absence of
creditor claims filed against the Estate. To date, the
document remains unchallenged and the court sees no reason to
doubt its veracity. Therefore, I FIND that
the plaintiff has sufficiently provided the court with
evidence that the Estate has no creditors.
establish her status as the sole beneficiary of the Estate,
the plaintiff produced waivers signed by the same five
individuals identified above. In these waivers, four of the
Estate's heirs and Robert Buckland certify that:
Mary Dickson is trusted and has my permission and confidence
to be named “Sole Beneficiary” in the case listed
above to represent this case  Pro-se. I waive any and all
rights as beneficiary concerning the Estate of Vada Smith
(Deceased) and recognize and agree, Mary Dickson, to be named
“Sole Beneficiary” regarding the Court Order.
Pl.'s Letter-Form Motion 5-9 [ECF No. 41].
noted by the defendants, the above-cited language comprising
these waivers raise some question whether these individuals
are unequivocally disclaiming all property interest in the
Estate. See Defs.' Reply to Pl.'s
Submissions Regarding Pro Se Representation 2 [ECF No. 42].
For example, whether or not Mary Dickson is trusted and has
the permission of the individuals to be named “sole
beneficiary” in this case is immaterial. However, given
the signees unequivocal expression that they “waive any
and all rights as beneficiary concerning the Estate of Vada
Smith, ” I FIND that the updated
waivers adequately describe the interest disclaimed.
noted by the defendants, West Virginia law also requires the
disclaimer “be acknowledged in such a manner as would
authorize a deed to be admitted of record.” W.Va. Code
§ 42-6-5. A deed may be admitted of record only
“when it shall have been acknowledged by him,
or proved by two witnesses as to him.” W.Va. Code
§ 39-1-2 (emphasis added). In a ...