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Lawyer Who Missed Court Date Because of Spam Blocker Won't Be Sanctioned

A plaintiffs' attorney in a wrongful-death lawsuit, who missed a court date because his firm's spam blocking software automatically sidetracked the court's e-mail notice, has narrowly escaped being sanctioned for failing to appear at the scheduled status conference.

Attorney Jeffrey J. Stesiak, of Sweeney, Pfeifer, Morgan & Stesiak in South Bend, Ind., who represents the family of Ruthie Barnes, explained in his response to the order to show cause that he did not receive the electronically transmitted notice from the court that the status conference would be held Dec. 8, 2004. Stesiak said he left for a vacation in California Dec. 7 but if he had received the notice, he would have had another member of his firm attend the conference.

Stesiak said that with the help of the court's system administrator, he discovered that his law firm's spam-blocker software set the Internet security level too high, which blocked the e-mail notification from the court. After the security level was reset, the notification came through.

U.S. Magistrate Judge Christopher A. Nuechterlein accepted the explanation and concluded that sanctions, which could have included dismissal of the case, were not warranted.

Stesiak represents Henry Barnes and Cassie Boney, who filed suit against Baxter Healthcare Corp. and Medisystems Corp. in an Indiana state court, alleging that their mother Ruthie Barnes died Sept. 1, 2002, as a result of defective "medical products." The complaint also named a fictitious defendant, XYZ Corp.

The complaint did not describe the manner of Barnes' death or name any specific medical products.

However, the Food and Drug Administration and Baxter announced Sept. 12, 2002, the withdrawal from the market of certain tubing manufactured by Medisystems that was used with Baxter's Meridian dialysis machines.

According to the FDA announcement, the tubing had been linked to five deaths at two dialysis centers in Mishawaka, Ind., and Grand Rapids, Mich. The FDA announcement was posted less than two weeks after Barnes' death.

The suit alleges strict liability, negligence, failure to warn, breach of warranty and wrongful death. It also seeks damages for loss of consortium and funeral expenses.

The defendants removed the case to the U.S. District Court for the Northern District of Indiana on diversity-of-citizenship grounds because the parties are citizens of different states. The plaintiffs are citizens of Indiana, Baxter is headquartered in Illinois and Medisystems is located in Washington.

The plaintiffs then moved to remand to state court on the grounds that they intend to substitute a non-diverse party, Nephrology Inc. of South Bend, for XYZ Corp., but cannot do so under Indiana law until their complaint against the health care provider is adjudicated by a state medical review board.

The court ruled that the Barnes family's intention of naming a non-diverse defendant in the future provides no grounds to remand at the current stage of the case and denied the motion.

Byron K. Mason of Baker & Daniels in Indianapolis represents Baxter Healthcare.Medisystems is represented by Dina M. Cox of Lewis & Wagner in Indianapolis.