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.
In June 2009, the circuit court clarified its order as requested by the Mylan defendants and held that they were not required to waive any statute of limitations defense that existed when when the West Virginia action was filed. The court also acknowledged that the lawsuit would be time-barred if filed in North Carolina, but that the court would apply North Carolina law if the action were litigated in West Virginia.
The estate then asked the circuit court to reconsider its decision and to reinstate the action in West Virginia, but the court denied the motion and declined to apply West Virginia’s discovery rule to the case.
In its appeal, the estate argued not that the circuit court abused its discretion in applying West Virginia Code § 56-1-1a, the forum non conveniens statute. (In a footnote, the court explained that in 1990, it had adopted the common law doctrine. In 2003, the legislature attempted to codify the doctrine, by amending West Virginia Code § 56-1-1, but the court invalidated that effort under the United States’ Constitution’s Privileges and Immunities Clause in Morris v. Crown Equip. Corp., 633 S.E.2d 292 (W.Va. 2006). In 2007, the legislature came back and enacted West VIrginia Code § 56-1-1a, which was the version at issue in Mace. Incidentally, here is a post I wrote about the legislature’s enactment of the statute.)
Although the statute has eight factors for a court to consider in determining whether an action should be heard a forum outside West Virginia, the estate focused on only the first, which is whether an alternate forum exists in which the claim or action may be tried. The estate argued that because an alternate forum did not exist here — the action could not be tried in the North Carolina because it would be barred by that state’s statute of limitations — the circuit court could not dismiss the action.
The Mylan defendants argued first that the statute was plain and unambiguous and should be construed according to its plain meaning. They also argued that, according to the United States Supreme Court, an alternate forum exists when the defendant is amenable to service of process there, and that under that criterion, North Carolina was an alternate forum.
The court found that the statute was ambiguous because it seemed to suggest hat the factor regarding the existence of an alternate forum was just one of eight factors to be considered, but that language elsewhere in the statute seemed to require that an action could not be dismissed unless at least two forums existed in which the case could be tried.
The court analyzed West Virginia case law and applicable federal case law in construing the statute. Based on that analysis, the court held, in a new syllabus point, that "dismissal 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."
The Mace estate also argued that prior decisions from the court further limited when an alternate forum could be found to "exist," because a forum is not available if the statute of limitations precludes the suit from being brought there. But the Mylan defendants argued that the only relevant question for determining whether an alternate forum exists is whether the defendant is amenable to suit there. If so, then an alternate forum exists. The court found that their interpretation was too narrow under the United States Supreme Court decisions on which they relied.
The court then held, in its second new syllabus point, that "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 alternate forum is so clearly inadequate or unsatisfactory that it is not 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."
In applying its holdings, the court held that the remedy provided by North Carolina "is so inadequate and unsatisfactory that it is no remedy at all." Thus, North Carolina did not "exist" as an alternate forum in which the Mace estate could try its claims, and the circuit court erred in dismissing the lawsuit. However, the court declined to address the choice of laws issue that the estate raised regarding the application of North Carolina law to the West Virginia action because the circuit court’s statement was not a final decision on the merits and the parties had not briefed the issue.
Justice Menis Ketchum wrote a dissent entitled "WEST VIRGINIA CANNOT AFFORD TO BE A DUMPING GROUND FOR FOREIGN LAWSUITS." (Capitalization in original.) He argued that the decision "will allow non-West Virginia residents, who suffered an injury in another state, to file their lawsuits in West Virginia." I understand his interest in preserving West Virginians’ access to West Virginia’s courts for their injuries, but the court’s analysis was logical and I think it reached the correct decision on these facts. But the decision illustrates that the doctrine is more difficult to apply that one would expect.