State Va. Ex Rel. Mylan Inc. v. the Hon. Paul Zakaib, s. 11–0392

Decision Date23 June 2011
Docket NumberNos. 11–0392,11–0440.,s. 11–0392
Citation713 S.E.2d 356,227 W.Va. 641
PartiesSTATE of West Virginia ex rel. MYLAN, INC., Mylan Pharmaceuticals, Inc., and Mylan Technologies, Inc., Petitionersv.The Hon. Paul ZAKAIB, Jr; and James Sherman Johnson, Individually, Diamond Johnson, Individually, and Karen Marie Hayden–Jefferson, as Administrator for The Estate of James Hayden, and as Next Friend to the Minor Plaintiffs, RespondentsandState of West Virginia Ex Rel. Mylan Technologies, Inc., f/k/a Bertek, Inc., Mylan, Inc., Mylan Pharmaceuticals, Inc., Petitionersv.The Hon. Jennifer Bailey; And William Davis Hall, Individually as Next of Kin of Harriet Elizabeth Hall, Deceased, and as Personal Representative of the Estate Of Harriet Elizabeth Hall, Deceased, Respondents.
CourtWest Virginia Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court

1. “Prohibition will lie to prohibit a judge from exceeding his legitimate powers.” Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).

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. “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.” Syl. Pt. 8, Mace v. Mylan Pharm., Inc., ––– W.Va. ––––, ––– S.E.2d –––– (2011).

4. “It is well established that the word “shall,” in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.” Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).’ Syllabus point 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997).” Syl. Pt. 6, Foster Found. v. Gainer, ––– W.Va. –––, –––S.E.2d –––– (2011).

5. By using the term “shall,” the Legislature has mandated that courts must consider the eight factors enumerated in West Virginia Code § 56–1–1a (Supp.2010), as a means of determining whether, in the interest of justice and for the convenience of the parties, a claim or action should be stayed or dismissed on the basis of forum non conveniens.

6. In all decisions on motions made pursuant to West Virginia Code § 56–1–1a (Supp.2010), courts must state findings of fact and conclusions of law as to each of the eight factors listed for consideration under subsection (a) of that statute.

Clem C. Trischler, Esq., Ryan J. King, Esq., Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA, for Petitioners.Carl J. Roncaglione, Jr., Esq., Charleston, WV, and David F. Miceli, Esq., Simmons, Browder, Gianaris, Angelides & Barnerd, LLC, Alton, IL, Attorneys for Estate of James Hayden.Harry F. Bell, Jr., Esq., The Bell Law Firm, PLLC, Charleston, WV, and Collyn Peddie, Houston, TX, Attorneys for Estate of Harriet Elizabeth Hall.

WORKMAN, Chief Justice:

In these consolidated original jurisdiction actions, the petitioners, Mylan, Inc., Mylan Pharmaceuticals, Inc., and Mylan Technologies, Inc. (jointly “the Mylan Petitioners), seek writs of prohibition in two actions pending in the Circuit Court of Kanawha County, West Virginia. In each action, the circuit court denied a motion filed by the Mylan Petitioners to dismiss the case on the basis of forum non conveniens. The Mylan Petitioners assert that each of the circuit judges erred in applying the forum non conveniens statute, West Virginia Code § 56–1–1a (Supp.2010). They seek to prohibit the circuit court from refusing to dismiss their actions on the basis of forum non conveniens.

This Court issued a rule to show cause on April 14, 2011, and the parties presented arguments to this Court on May 25, 2011. Having fully considered the issues presented, we find that the circuit court erred in failing to make findings of fact and conclusions of law regarding the eight factors listed for consideration in West Virginia Code § 56–1–1a. The Court, therefore, grants the writs as moulded and remands the actions for further consideration consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The factual and procedural history of each of the two consolidated actions is set forth separately.

A. Case No. 11–0392

In case number 11–0392, the respondents and plaintiffs below are James Sherman Johnson and Diamond Johnson, the surviving minor children of James Hayden, and Karen Marie Hayden–Johnson, the administrator of the Estate of James Hayden and next of friend to the minor plaintiffs (hereinafter the Hayden Respondents). The decedent, James Hayden, died on October 30, 2007, while a patient at the United Hospital Systems in Kenosha, Wisconsin. The Hayden Respondents allege that Mr. Hayden died from “fentanyl toxicity” as a result of wearing a Fentanyl Transdermal System patch (“fentanyl patch”), designed, manufactured and marketed by the Mylan Petitioners.

On October 28, 2009, the Hayden Respondents filed a Complaint in the Circuit Court of Kanawha County, the Honorable Judge Paul Zakaib presiding, suing the Mylan Petitioners under West Virginia's wrongful death statute, West Virginia Code § 55–7–5 (2008).1 The Hayden Respondents asserted additional causes of action including strict products liability (design, manufacturing and marketing defects), negligent misrepresentation, breach of implied warranty of fitness, fraud, breach of express warranties, breach of implied warranties and failure to warn.

On November 17, 2009, the Mylan Petitioners filed a motion to dismiss on the basis of forum non conveniens, arguing that Wisconsin is a more convenient forum, given that the Hayden Respondents all reside in Wisconsin, and that Mr. Hayden was prescribed the fentanyl patch in Wisconsin, used the fentanyl patch in Wisconsin, and died in Wisconsin. The Mylan Petitioners argued that trying the case in West Virginia would result in a substantial injustice because (1) the Mylan Petitioners would “not have access to compulsory process to compel non-party witnesses to appear in West Virginia,” (2) discovery would be more costly because the Mylan Petitioners would have to “resort to letters rogatory to obtain relevant information from non-parties outside this Court's subpoena power,” and (3) “a trial in West Virginia would occur substantially by videotape” because the Mylan Petitioners could not compel witnesses to appear in the state.

After conducting a hearing on the motion, Judge Zakaib 2 entered an order denying the Mylan Petitioners' motion on March 2, 2010.3 In that order, Judge Zakaib found that [a]s West Virginia corporations, Mylan Pharmaceuticals, Inc. and Mylan Technologies, Inc., have chosen to take advantage of the laws of West Virginia, and cannot be allowed to complain they are being asked to be held to the consequences of West Virginia.” He further found that any inconvenience alleged by the Mylan Petitioners with regard to obtaining compulsory attendance of witnesses located in Wisconsin would apply equally to the plaintiffs if the case were to be dismissed from the West Virginia court (i.e., the plaintiffs would be faced with bringing Mylan witnesses from West Virginia to Wisconsin). Citing West Virginia Code § 56–1–1a, Judge Zakaib concluded that [t]his is not a reason to override the ‘great deference’ that must be afforded the Plaintiffs' choice of forum.”

B. Case No. 11–0440

In case number 11–0440, the respondent and plaintiff below is William Davis Hall (hereinafter Respondent Hall), the next of kin and administrator of the Estate of Harriet Elizabeth Hall. Respondent Hall alleges that the decedent, Ms. Hall, was found dead on September 29, 2007, in her home in Georgia, with a lethal amount of fentanyl in her blood. He asserts that Ms. Hall had been prescribed a fentanyl patch by a doctor at Georgia Pain Physicians, P.C., to treat chronic back pain. Respondent Hall alleges that the patch worn by Ms. Hall was designed, manufactured and marketed by the Mylan Petitioners. Respondent Hall is a resident of the State of New York.

On September 23, 2009, Respondent Hall filed a Complaint in the Circuit Court of Kanawha County, the Honorable Judge Jennifer Bailey presiding. Respondent Hall sued the Mylan Petitioners under West Virginia's wrongful death statute, alleging a variety of claims including strict products liability, negligent misrepresentation, breach of express and implied warranties, fraud, deceptive trade practices, failure to warn, intentional and negligent infliction of emotional distress and loss of consortium.

On October 23, 2009, the Mylan Petitioners filed a motion to dismiss the Complaint under the doctrine of forum non conveniens, arguing that Georgia is the more convenient forum in this case. They asserted that Ms. Hall was a resident of Georgia, was prescribed the fentanyl patch in Georgia and died in Georgia. Thus, they contend, all of the fact witnesses related to the injury in this case are in Georgia. For the same reasons set forth in the Hayden Respondents' case, the Mylan Petitioners argued that trial in West Virginia would result in a substantial injustice to them.

On October 1, 2010, the circuit court conducted a hearing on the motion to dismiss. During that hearing, Judge Bailey denied the Mylan Petitioners' motion on the basis of forum non conveniens, stating simply: “I think that there's a lot of deference given to the choosing of the forum by the plaintiff. This is a West Virginia corporation and appears to be proper.” On February 2, 2011, Judge Bailey entered...

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