In 1995 District Court Judge Robert S. Gawthrop included the phrase ‘zombie litigation’ in a Federal Court opinion:
JOAN LANGER & ARTHUR KRAMER, (Executors of the Estate of Terry Langer, M.D.), Plaintiffs, v. PRESBYTERIAN MEDICAL CENTER OF PHILADELPHIA, Defendant.
MONARCH LIFE INSURANCE COMPANY, Plaintiff, v. PRESBYTERIAN MEDICAL CENTER OF PHILADELPHIA, Defendant.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NOS. 87-4000 & 91-1814, CIVIL ACTION NO. 88-1064
1995 U.S. Dist. LEXIS 9448
Decided June 30, 1995, filed July 3, 1995.
Judge Gawthrop wrote:
the continuation of this litigation has spawned piecemeal litigation. Since this conduct occurred, three final judgments have been entered, the last of which one hopes is final, and yet, the “zombie” litigation over this conduct continues.
In footnote, the Judge attributes the zombie litigation phrase to attorney Alfred Putnam of Drinker, Biddle and Reath:
[FN3] Pepper’s counsel, Alfred Putnam, Esquire, aptly so described at oral argument.
The underlying legal issue is about the timeliness of a motion for sanctions under 28 U.S.C. § 1927 and the applicability of the so-called “supervisory rule” and the Pensiero rule. Putnam succeeded in avoiding sanctions for alleged “pattern of discovery abuses” by his client. But this case was cited and distinguished in another case before the Third Circuit in 2008. The zombie litigation phrase was quoted in footnote #9 of Circuit Judge Barry’s Opinion in:
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
542 F.3d 90
Filed September 9, 2008
In this latter case Judge Barry distinguishes Langer noting that it is an exception amongst similar cases in the Circuit. This later contrary ruling suggests that Putnam’s arguments were unduly persuasive, and apparently, at least in part, because of the power in that zombie word.