Mace v. Mylan Pharmaceuticals Inc.

• Decision Date: 22 July 2011
• Docket Number: No. 35710.,35710.
• Citation: 227 W.Va. 666,714 S.E.2d 223
• Parties: Randy L. MACE, Personal Representative of the Estate of Kathy W. Mace, Deceased, Plaintiff Below, Appellantv.MYLAN PHARMACEUTICALS, INC., Mylan, Inc., and Mylan Technologies, Inc., Defendants Below, Appellees.
• Court: West Virginia Supreme Court

227 W.Va. 666

714 S.E.2d 223

Randy L. MACE, Personal Representative of the Estate of Kathy W. Mace, Deceased, Plaintiff Below, Appellant

v.MYLAN PHARMACEUTICALS, INC., Mylan, Inc., and Mylan Technologies, Inc., Defendants Below, Appellees.

No. 35710.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 2011.Decided June 16, 2011.Concurring and Dissenting Opinion by Justice Benjamin July 22, 2011.

Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “ ‘A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997).

3. “A statute that is ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

4. “ ‘The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.’ Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” Syl Pt. 3, Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W.Va. 677, 671 S.E.2d 682 (2008).

5. “ ‘In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.’ Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” Syl. Pt. 2, White v. Wyeth, 227 W.Va. 131, 705 S.E.2d 828 (2010).

6. “ ‘A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.’ Syl. Pt. 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).” Syl. Pt. 2, State v. McClain, 211 W.Va. 61, 561 S.E.2d 783 (2002).

7. “The common law principle of forum non conveniens is applicable only if, as a threshold matter, the forum court has jurisdiction and venue is proper under the statute. It presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.” Syl. Pt. 2, Norfolk and W. Ry. Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 (1990), superseded by statute, W. Va.Code § 56–1–1a (Supp.2010).

8. Under West Virginia Code § 56–1–1a (Supp.2010), dismissal of a claim or action on the basis of forum non conveniens presupposes at least two forums in which the defendant is amenable to process; the statute furnishes criteria for choice between them. In the event that the defendant is not amenable to process in any alternate forum, dismissal of a claim or action under this statute would constitute error.

9. In considering “whether an alternate forum exists in which the claim or action may be tried” pursuant to West Virginia Code § 56–1–1a(a)(1) (Supp.2010), an alternate forum is presumed to “exist” where the defendant is amenable to process. Such presumption may be defeated, however, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all. In such cases, the alternate forum ceases to “exist” for purposes of forum non conveniens, and dismissal in favor of that forum would constitute error.

Kathryn Reed Bayless, Esq., Bayless Law Firm, PLLC, Princeton, WV, Attorney for Appellant.Clem C. Trischler, Esq., Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA, Attorney for Appellees.

WORKMAN, Chief Justice:

The plaintiff below and appellant herein, Randy L. Mace (“Mr. Mace”), as personal representative of the Estate of Kathy W. Mace (“Ms. Mace”), appeals from an order of the Circuit Court of Monongalia County, West Virginia, dismissing his wrongful death lawsuit on the basis of forum non conveniens. Applying West Virginia Code § 56–1–1a (Supp.2010), the forum non conveniens statute, the circuit court concluded that North Carolina, the state in which the action accrued, is a more convenient forum for Mr. Mace's claims. Mr. Mace contends, however, that he is unable to try his claims in North Carolina, because they are barred by the statute of limitations in that state. Thus, he contends, the circuit court erred in dismissing the case, because it misinterpreted the forum non conveniens statute as permitting dismissal despite the lack of an alternate forum in which the claims may be tried.

Upon careful consideration, the Court finds that the language of the statute is ambiguous and should be construed in a manner that is consistent with this Court's prior case law and the federal common law doctrine of forum non conveniens. Under this construction, the circuit court erred in its interpretation of the statute. Its order dismissing this action on the basis of forum non conveniens is, therefore, reversed and the case is remanded for further consideration consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Ms. Mace, a North Carolina resident, died on October 25, 2005, allegedly from an overdose of the narcotic pain medication, fentanyl. On July 1, 2008, Mr. Mace filed a wrongful death lawsuit in the Circuit Court of Monongalia County against Mylan Pharmaceuticals, Inc., Mylan, Inc., and Mylan Technologies, Inc. (jointly “the Mylan defendants”). Mylan Pharmaceuticals, Inc., is a West Virginia corporation with its headquarters in Morgantown, West Virginia; Mylan Technologies, Inc., is a West Virginia corporation with its headquarters in St. Albans, Vermont; and Mylan, Inc., is a Pennsylvania corporation with its headquarters in Canonsburg, Pennsylvania. Mr. Mace asserts that the Mylan defendants were responsible for the design, manufacture, marketing and distribution of a pain patch known as the Mylan Fentanyl Transdermal System (“the Mylan patch”).

In the complaint, Mr. Mace alleges that Ms. Mace was prescribed the Mylan patch on October 21, 2005, and that she died four days later from a fentanyl overdose while wearing that patch. Mr. Mace asserts claims of strict products liability, negligence, breach of implied warranty and breach of express warranty, and seeks punitive damages for deliberate, intentional reckless and/or malicious behavior.

Mr. Mace further asserts in the complaint that

[t]he plaintiff did not know, and a reasonable person under the circumstances would not have had reason to know, that the patches prescribed for, worn, and alleged to have been a cause of decedent's death were manufactured by Mylan until less than two years before filing this complaint.

Importantly, both West Virginia and North Carolina, where Ms. Mace died, have a two-year statute of limitations for wrongful death claims. W. Va.Code § 55–7–6(d) (2008); N.C. Gen.Stat. § 1–53(4) (2008). In his brief to this Court, Mr. Mace explains that he had originally sued another generic drug manufacturer in California within two years of Ms. Mace's death. During the course of that litigation, Mr. Mace discovered that the Mylan defendants were the actual manufacturers and distributors of the fentanyl patch worn by Ms. Mace. Accordingly, by the time Mr. Mace initiated this suit in West Virginia against the Mylan defendants, more than two years had passed after Ms. Mace's death. If given the opportunity, Mr. Mace intends to argue that West Virginia's discovery rule tolled the running of the statute of limitations in this case.

On July 22, 2008, the Mylan defendants filed a motion to dismiss based on the doctrine of forum non conveniens, which is codified in West Virginia Code § 56–1–1a. They argued that North Carolina is the appropriate forum in which to litigate the case because Ms. Mace was a resident of North Carolina, she was prescribed and used the Mylan patch in North Carolina, and she died in North Carolina. The Mylan defendants further asserted that the Mylan patch was manufactured at a production facility in St. Albans, Vermont, and was shipped from Vermont to North Carolina. Accordingly, the Mylan defendants argued that the cause of action arose in North Carolina and the suit's only connection to West Virginia is that two of the Mylan defendants are incorporated under West Virginia law, and one has its corporate headquarters in the state. Thus, the Mylan defendants argued that North Carolina is a more convenient forum.

Mr. Mace opposed the Mylan defendants' motion, arguing that none of the Mylan defendants' employees reside in North Carolina and that he would make the relevant North Carolina fact witnesses available to the Mylan defendants in West Virginia for depositions. Mr. Mace further asserted that, although North Carolina and West Virginia both have two-year statutes of limitations for wrongful death claims, only West Virginia permits tolling the statute of limitations based on the discovery rule. Accordingly, Mr. Mace asserted that he would not be able to pursue the wrongful death claim in North Carolina unless the Mylan defendants waived their statute of limitations defense in that state. He argued that, without such a waiver, North Carolina is not available as an alternate forum in which the claims could be tried.

On December 16, 2008, the circuit court entered an order dismissing the case on the basis of forum non conveniens. Among other things, the circuit court concluded that “the Plaintiff resides in North Carolina and the decedent was a...