Late in its January Term, the Supreme Court of Appeals of West Virginia issued a decision dealing with the well-known, but somewhat misunderstood, or at least misapplied, doctrine of forum non conveniens. In essence, the doctrine allows a court to decline to assert jurisdiction over an action before it if another, more appropriate forum exists for its resolution.
In Mace v. Mylan Pharmaceuticals, Inc., 2011 WL 2446644 (W.Va., June 16, 2011), Kathy Mace, a North Carolina resident, died on October 25, 2005, allegedly due to an overdose of fentanyl, a narcotic pain medication. Her personal representative filed suit in Monongalia County, West Virginia on October 1, 2008 against Mylan Pharmaceuticals, Inc., Mylan Technologies, Inc., and Mylan, Inc. The first two are West Virginia corporations, while the third is a Pennsylvania corporation.
Ms. Mace’s estate alleged that the Mylan defendants were responsible for designing, manufacturing, marketing, and distributing the fentanyl pain patch, and alleged claims for strict products liability, negligence, breach of implied and express warranties, and punitive damages.
Apparently, Ms. Mace’s estate sued a California generic drug manufacturer for her death, and learned through that litigation learned that the Mylan defendants actually manufactured and distributed the fentanyl patch. But by the time the estate filed suit in West Virginia, the two-year statute of limitations for wrongful-death claims had expired. (North Carolina also has a two-year statute of limitations for wrongful-death claims, which will feature prominently in the court’s decision.)
The Mylan defendants moved to dismiss on the grounds on the grounds of forum non conveniens, and argued that North Carolina was the appropriate forum for the lawsuit because Ms. Mace lived there, wore the patch there, and died there, and that the patch was shipped to North Carolina from Mylan’s plant in Vermont.
Ms. Mace’s estate argued that because West Virginia permits tolling the statute of limitations based on the discovery rule, while North Carolina does not, the estate could not pursue the lawsuit in North Carolina unless the Mylan defendants waived their statute of limitations defense. Absent that waiver, North Carolina was not available as an alternative forum for the lawsuit.
The Circuit Court of Monongalia County dismissed the lawsuit on December 16, 2008 based on forum non conveniens, and found that North Carolina was an alternate forum in which the Mace estate could bring the action. The court also found that the Mylan defendants had agreed to consent to and not contest personal jurisdiction in North Carolina and would waive their statute of limitations defense.
But apparently the Mylan defendants did not remember it that way. A couple of months later, they moved to amend or clarify the order on the grounds that they had agreed to waive any new statute of limitations defense, but maintained that they should be able to assert the defense as to the estate’s West Virginia action. In response, the estate moved to reinstate the case in circuit court on the grounds that if the Mylan defendants obtained their relief, the case could not go forward in North Carolina, as that statute of limitations had expired before the lawsuit had been filed in West Virginia.