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A Narrow Expansion of Choice of Law and Forum Shopping Principles in West Virginia

One thing that we all learn the first year of law school is that civil procedure is possibly the least glamorous subject in all of the law. The irony of course is that civil procedure is critically important to every litigator’s won-loss ratio. Do you ever have a day when you do not read at least one opinion where the case is decided by summary judgment and the appellate court feels the need to bore us again with the requirements for summary judgment? “The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record. A genuine issue exists if there is sufficient evidence…..” Yada Yada Yada.
And like football players who zone out during those endless practice sessions on the techniques of blocking and tackling, lawyers zone out when the CLE lecturer flashes those PowerPoint slides on the intricacies of Choice of Law. But blocking and tackling wins football games (or lack thereof loses games for my poor Browns!), and last month we learned how crucial choice of law can be, at least if you can get your product liability case that occurred in Alabama to follow the law of West Virginia.
Thomas Woodcock was an Alabama resident who was prescribed 75 mcg transdermal patches of fentanyl for pain relief by his Alabama physician. Two days later he died in Alabama, with a lethal level of fentanyl in his blood and a 75 mcg Mylan fentanyl patch on his body. The executor of Woodcock’s estate then brought an action in federal court in West Virginia against the Mylan corporate defendants, which were West Virginia corporations with their principal places of business in West Virginia.
Why did the executor file the action, Woodcock v. Mylan, Inc., 2009 U.S. Dist. LEXIS 95403 (S.D. W. Va. Oct. 14, 2009), in West Virginia? The reason is that West Virginia does not follow the learned intermediary doctrine. The learned intermediary doctrine states that a prescription drug manufacturer has no duty to warn consumers directly of dangers or risks posed by the use of its product. Rather, that duty extends exclusively to the prescribing physicians. Under the doctrine, manufacturers of prescription drugs escape liability for failure to instruct and warn consumers so long as they adequately instruct and warn physicians responsible for prescribing the medication.
Thus, choice of law was crucial in this case because West Virginia is one of the few states, or possibly the only state, to totally reject the learned intermediary doctrine. You can quickly research how pervasive the learned intermediary doctrine is by using the ‘More Like This Headnote” feature for LexisNexis Headnote #7 in the Woodcock opinion on Choose ‘All Federal & States Cases, Combined’ as your library and date restrict your search to the ‘Previous 2 Years’. You will immediately see that West Virginia follows the minority rule.
The executor’s complaint in Woodcock included a strict product liability/marketing defect claim that alleged that the Mylan defendants failed to provide adequate warning and/or instructions concerning the use of the fentanyl patch to the deceased. The Mylan defendants filed a motion to dismiss, pointing out that Alabama followed the learned intermediary doctrine. The court found that under West Virginia choice of law principles, “In a tort action, West Virginia applies the law of the place of injury ("lex loci delicti")….It will not, however, apply a foreign state's law that contravenes West Virginia public policy.” In addition, though, “The Supreme Court of Appeals of West Virginia has explained, however, that it does not intend for its choice-of-law principles to be ‘an invitation for forum shopping.’ Not every conflicting foreign law, however, offends West Virginia public policy.”
West Virginia rejected the learned intermediary doctrine in State ex rel. Johnson & Johnson Corp. v. Karl, 220 W. Va. 463, 647 S.E.2d 899 (W. Va. 2007), for several reasons: The rise in direct advertising of pharmaceuticals by drug manufacturers; drug manufacturers benefit the most from the sales of prescription drugs; consumers bear the significant risks of using prescription drugs; and liability should be placed on the cheapest cost-avoider, the drug manufacturers.
The court noted that other than the fact that the Mylan defendants were located in West Virginia, the case before it had nothing to do with West Virginia. “Mr. Woodcock was an Alabama resident, he was prescribed the Mylan patch in Alabama, he had the prescription filled in Alabama, he applied the patch in Alabama, and he died in Alabama. It certainly appears that the plaintiff is attempting to take advantage of West Virginia's more favorable tort law. Thus, applying West Virginia law to this claim will almost certainly invite forum shopping by plaintiffs dissatisfied with their home state's products liability laws.” But the court then determined that the Supreme Court of Appeals of West Virginia would apply West Virginia law in this particular situation.
At first glance, it certainly seems that the court is encouraging forum shopping, but the later language of the opinion is more restrictive. The court proceeds to base its ruling upon the narrow fact that the Mylan defendants were incorporated and located in West Virginia, and thus had intentionally subjected themselves to West Virginia law. “Although Mr. Woodcock was not a West Virginia resident, Mylan is. As a West Virginia corporation, Mylan has taken advantage of the laws of West Virginia, and it cannot now complain that it is being held to their consequences. Presumably, Mylan has developed its business around an expectation that, as a West Virginia corporation, it will be subject to West Virginia tort law.”
The court noted that the Mylan defendants cited to a footnote by the West Virginia Supreme Court of Appeals in Paul v. Nat'l Life, 177 W. Va. 427, 352 S.E.2d 550 (W. Va. 1986), that the public policy exception to the lex loci delicti rule would not be applied if the only contact with West Virginia was that a non-resident plaintiff was able achieve service of process on a non-resident defendant within the boundaries of West Virginia. But that cautionary language was found to be inapplicable to the case before the Woodcock court. ”In contrast, West Virginia's interest in this case extends beyond service of process within the state. Mylan is a West Virginia corporation subject to general personal jurisdiction here. West Virginia thus has an interest in this litigation beyond the attenuated circumstance addressed in Paul.”
Clearly, the Woodcock decision must be of concern to drug manufacturers specifically, and in general to product liability defense counsel. The initial language of the decision appears to support an expansion of the public policy exception for choice of law questions and an opportunity for some serious forum shopping. But when one examines the complete reasoning of the Woodcock court, the result will likely be much less favorable to the plaintiff’s bar.