Bailey v. Wyeth Inc.

• Decision Date: 07 March 2008
• Citation: 422 N.J.Super. 343,28 A.3d 856
• Court: New Jersey Court of Chancery
• Parties: Dora BAILEY and Carol Bailey, w/h, Plaintiffs,v.WYETH, INC., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.Loretta DeBoard, Plaintiffs,v.Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.Bette Kositsky and Mark Kositsky, w/h, Plaintiffs,v.Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.

422 N.J.Super. 343

28 A.3d 856

Dora BAILEY and Carol Bailey, w/h, Plaintiffs,

v.WYETH, INC., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.Loretta DeBoard, Plaintiffs,

v.Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.Bette Kositsky and Mark Kositsky, w/h, Plaintiffs,

v.Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Pfizer, Inc., and Pharmacia & Upjohn Co., Defendants.

Superior Court of New Jersey,Middlesex County, Law Division.

Argued Feb. 8, 2008 and Feb. 27, 2008.Decided March 7, 2008.

Esther E. Berezofsky, Cherry Hill, and Kevin Haverty for plaintiffs (Williams, Cuker & Berezofsky, attorneys) and Richard S. Lewis (Cohen, Milstein, Hausfeld & Toll, PLLC) of the Washington, D.C. bar, admitted pro hac vice.Lauren E. Handler, Morristown, (Porzio Bromberg & Newman, P.C.) and George E. McDavid, Princeton, and Daniel K. Winters (Reed Smith LLP) attorneys for defendants Wyeth, Inc., and Wyeth Pharmaceuticals, Inc.David J. Cooner and Gita F. Rothschild, Newark, attorneys for defendants Pfizer and Pharmacia & Upjohn Co. (McCarter & English LLP, attorneys) and Jay P. Mayesh (Kaye Scholer LLP) of the New York bar, admitted pro hac vice.HAPPAS, J.S.C.

I. Introduction

Presently before this Court are three choice-of-law motions filed by defendants, Wyeth, Inc., Wyeth Pharmaceuticals, Inc., (“Wyeth”), Pfizer Inc., and Pharmacia & Upjohn Co., (“Upjohn”) (collectively “defendants”), to apply non-New Jersey law to three separate actions for damages allegedly caused by the ingestion of Premarin®, Provera® and Prempro™.

Before considering the merits of these choice of law motions, the court must determine if the issue has been waived or is timely.¹ For the reasons set forth below, the court finds that defendants failed to timely file the instant choice-of-law motions.

II. Factual Background

The three hormone replacement therapy (“HRT”) products involved are Premarin, Provera, and Prempro. Premarin, a synthetic estrogen drug manufactured and distributed by Wyeth, was prescribed to treat menopausal symptoms. Provera, a synthetic progestin produced by Upjohn, was prescribed to reduce the risk of endometrial hyperplasia associated with taking estrogen alone. Prempro is a Wyeth product, which contains estrogen and progestin in a single capsule.

All HRT cases in New Jersey have been designated as a mass tort and assigned to Middlesex County for coordinated and centralized management by order of the Supreme Court of New Jersey. To facilitate discovery and case management, the cases were separated into groups. Group One, the bellwether group, consisted of twenty cases identified in Schedule A of the court order dated April 21, 2006. The three cases involved in the instant motions, and one under appellate review, are the only cases remaining in Group One.

a. Bailey v. Wyeth, Inc.

On May 5, 2004, plaintiffs filed their complaint commencing this suit. On June 23, 2004 and June 24, 2004, Wyeth and Upjohn, respectively, filed their answers. Wyeth specifically identified public policies of New Jersey as part of its thirty-sixth affirmative defense. Upjohn named the New Jersey Product Liability Act in its fortieth and forty-first defenses. On April 6, 2005, plaintiff served completed fact sheets on defendants, followed by filing an amended complaint on June 21, 2005. Defendants' answers to the amended complaint were filed in July 2005. Again, New Jersey law was expressly invoked in their affirmative defenses. Wyeth cited New Jersey public policy in its thirty-sixth defense. Upjohn invoked New Jersey law in nine different defenses.² No other state law was identified, nor was the choice-of-law defense raised.³

Dora's deposition was taken on June 22, 2006. Pursuant to the court order dated June 19, 2007, the parties retained experts, served expert reports and deposed the experts.⁴ On December 7, 2007, Wyeth filed the instant motion to apply Texas law. Thereafter, on December 17, 2007, Upjohn filed a motion in support of and joining Wyeth's choice-of-law motion.⁵

Plaintiffs presently reside in Texas. Carol Bailey is Dora Bailey's spouse. Dora's doctors prescribed HRT to her from 1989 through 2002. From 1989 through 1993 plaintiffs lived in Missouri. During this period of time, Dora was prescribed and ingested Premarin and Provera. In 1993, plaintiffs moved to Arkansas, where they resided for the next seven years. On April 15, 1996, Dora's doctor switched her prescriptions from Premarin and Provera to Prempro. At the end of 2000, plaintiffs relocated to Texas. Dora continued taking Prempro until May 28, 2002, when she was diagnosed with ductal breast cancer. Her diagnosis, surgery and subsequent treatment occurred in Texas.

b. DeBoard v. Wyeth, Inc.

On July 17, 2003, plaintiff filed her complaint commencing this suit. On October 1, 2003, she filed an amended complaint. Wyeth filed its answer on November 7, 2003, invoking New Jersey law in its twenty-seventh and forty-first affirmative defenses. Upjohn filed its answer on January 21, 2004, citing New Jersey law in its thirty-sixth affirmative defense. In February 2005, plaintiff provided an initial fact sheet. On February 7, 2005, plaintiff filed a second amended complaint. Upjohn filed its answer to the second amended complaint on February 24, 2005 and Wyeth filed its answer on February 25, 2005. Again, New Jersey law was expressly invoked in their affirmative defenses. Wyeth cited New Jersey public policy in its thirty-sixth defense. Upjohn invoked New Jersey law in eight different affirmative defenses. ⁶ No other state law was identified, nor was the choice-of-law defense raised.⁷

DeBoard's deposition was taken on July 13, 2006. Pursuant to the court order dated June 19, 2007, the parties retained experts, served expert reports, and deposed the experts.⁸ An amended fact sheet was served on October 30, 2006. On December 19, 2007, Upjohn filed the instant motion to apply Kentucky law.⁹ Thereafter, Wyeth filed a similar choice-of-law motion on January 9, 2008.

DeBoard resides in Kentucky. From June 1991 through 2001 she was prescribed and ingested HRT in Kentucky. Specifically, she ingested Premarin and Provera from June 1991 to February 1996. In February 1996, her doctor switched her prescriptions from Premarin and Provera to Prempro. On September 6, 2001, she was diagnosed with breast cancer. Her diagnosis and subsequent treatment occurred in Kentucky.

c. Kositsky v. Wyeth, Inc.

On June 29, 2004, plaintiffs filed their complaint commencing this suit. On October 7, 2004, Upjohn filed its answer. Wyeth filed its answer on November 3, 2004, in accordance with the stipulation extending time to answer the complaint. Wyeth specifically identified New Jersey law in eight of its separate defenses.¹⁰ Upjohn invoked New Jersey law in three of its defenses: nineteenth, fortieth, and forty-first. No other state law was mentioned nor was the choice-of-law defense raised.¹¹

Bette Kositsky's deposition was taken on June 1, 2006. Pursuant to the court order dated June 19, 2007, the parties retained experts, served expert reports, and deposed the experts.¹² On December 19, 2007, Upjohn filed the instant motion to apply Pennsylvania law.¹³ Thereafter, Wyeth filed a similar choice-of-law motion on January 9, 2008.

Plaintiffs reside in Florida. Mark Kositsky is Bette Kositsky's spouse. Prior to 2003, plaintiffs were residents of Pennsylvania. Ms. Kositsky's doctors in Pennsylvania prescribed HRT to her from 1991 through 2002. Specifically, she ingested Premarin and Provera from 1991 to 1998. During 1998, her doctor switched her prescriptions from Premarin and Provera to Prempro. On July 14, 2002, she was diagnosed with breast cancer. Her diagnosis and subsequent treatment occurred in Pennsylvania.

III. Analysis

Early determination of which state law governs a case is essential for judicial economy, efficiency and fairness to the parties. See Pressler, Current N.J. Court Rules, comment 6.1 on R. 4:5–4 (2008) (“As a procedural matter, it is clear that an issue of the applicability of foreign law should not only be raised before trial but requires decision before trial.”) (citations omitted). The court has the discretion to consider the applicability of foreign law when the issue is raised although not previously pled. See Rowe v. Hoffmann–La Roche Inc., 383 N.J.Super. 442, 450–51, 892 A.2d 694 (App.Div.2006), rev'd on other grounds, 189 N.J. 615, 917 A.2d 767 (2007) (affirming that motion judge acted within her discretion to consider and grant choice-of-law motion). In Rowe, the defendants did not assert Michigan products liability law as a defense in their answer. Id. at 450, 892 A.2d 694. The issue was subsequently raised in a motion for summary judgment. Id. at 448, 892 A.2d 694. The New Jersey Supreme Court noted that “after denying Rowe's allegations, Hoffmann moved for summary judgment, seeking dismissal of the lawsuit.” Rowe, supra, 189 N.J. at 619, 917 A.2d 767. Neither the appellate court opinion nor the New Jersey Supreme Court opinion reveal how much time passed between the defendants' filing their answer and the motion for summary judgment. Id. at 770, 917 A.2d 767; Rowe, supra, 383 N.J.Super. at 448–51, 892 A.2d 694. Nor was there any indication whether discovery had commenced or if expert reports were served. Ibid. The opinions in Rowe do not address whether the granting of defendants' application to apply foreign law would cause substantial prejudice, unfair surprise, or undue interference with the administration of justice.

The Court Rules require parties to “set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense.” R. 4:5–4. The rule sets forth an illustrative, not exhaustive, list of common affirmative defenses. See Pressler, supra, comment 1.2.1 on R. 4:5–4. “An affirmative defense is waived if not pleaded or otherwise timely raised.” Brown v....