August 4, 2011
A recent decision by the West Virginia Supreme Court of Appeals addressed the doctrine of forum non conveniens in the context of the availability of an action in another state whose law was significantly less favorable to the plaintiff than that of the chosen forum. See Mace v. Mylan Pharm., Inc., No. 35710, 2011 WL 2446644 (W. Va. June 16, 2011). The plaintiff in Mace was the estate of a patient who allegedly had died from an overdose of the defendants' drug delivery apparatus, called the "Mylan Fentanyl Transdermal System." The purpose of the device was to introduce narcotic pain medication into the user's body. The patient was a resident of North Carolina at the time of her death. Her husband, as personal representative of the estate, filed suit in West Virginia against the manufacturer of the drug and related entities. The defendants were variously incorporated in West Virginia and Pennsylvania and had their headquarters in West Virginia, Vermont, and Pennsylvania.
The plaintiff alleged that the patient had been prescribed "the patch" on October 21, 2005 and had died from an overdose a mere four days later while wearing the device. The personal representative filed his action on July 1, 2008. The plaintiff set forth claims for strict products liability, negligence, breach of express warranty, and breach of implied warranty. The estate sought punitive damages based upon the defendants' "deliberate, intentional reckless and/or malicious behavior." Id. at *3. The complaint further alleged that the plaintiff had not known, and that a reasonable person under the circumstances would not have had reason to know, that "the patches" prescribed for the decedent were manufactured by Mylan until less than two years before filing the complaint. The court noted that both West Virginia and North Carolina have two-year statutes of limitations for wrongful death claims.
The defendants filed a motion to dismiss based on the doctrine of forum non conveniens. In support of their motion, the defendants argued that North Carolina was the appropriate forum because the decedent had been a resident of that state at the time of her death, she had been prescribed and had used the drug apparatus in North Carolina, and she had died there. The defendants also asserted that the cause of action arose in North Carolina and that the lawsuit's only connection with West Virginia was that two of the defendants were incorporated under West Virginia law and one defendant had its headquarters there.
In resolving the defendants' motion, the court had occasion to apply West Virginia's forum non conveniens statute. This statute provides that a West Virginia court may decline to exercise jurisdiction over a matter if it finds that in the interest of justice and for the convenience of the parties, a claim or action would be more properly heard in a forum outside the state. In making this determination, the court may consider, among other things, whether an alternate forum exists in which the claim or action might be tried.
The court noted that the principle of forum non conveniens presupposes the existence of at least two forums in which the defendant is amenable to process. According to the court, in the event that the defendant is not amenable to process in any alternate forum, dismissal on the basis of forum non conveniens is erroneous. While there is a presumption that an alternate forum "exists" if the defendant is amenable to service of process there, this presumption may be overcome if the remedy in the other forum is so clearly inadequate or unsatisfactory that it amounts to no remedy at all. In such a case, the alternate forum ceases to "exist," and dismissal on the basis of forum non conveniens is legal error.
The court decided that North Carolina did not "exist" as an alternate forum, because its law would have barred the plaintiff's claim on the basis of the statute of limitations, while the law of West Virginia allowed the claim to proceed. This was so because North Carolina does not recognize the discovery rule, under which a cause of action does not accrue, for purposes of the statute of limitations, until the plaintiff knew or should have known of the existence of his or her claim against the defendant. Because the plaintiff filed his action more than two years after his wife's death, his action would have been barred without the application of the discovery rule. Therefore, according to the court, North Carolina was not a forum in which the plaintiff could attempt to litigate his claims. The court observed that the remedy provided by North Carolina was so inadequate and unsatisfactory that it was not a remedy and that, consequently, North Carolina did not "exist" as an alternate forum. Accordingly, the trial court had erred in dismissing the plaintiff's action on the ground of forum non conveniens.
The principle articulated in Mace clearly is useful to a products liability plaintiff whom a defendant attempts to steer toward another jurisdiction having less favorable law. The effect of trying the action in the other state would have been drastic in Mace, in that the case would have been barred by the statute of limitations. Whether less onerous consequences of trying an action in an alternate forum would cause that forum to cease to "exist," so as to bar dismissal under the doctrine of forum non conveniens, is an open question. However, Mace provides a guidepost for an argument that when the law of an alternate forum raises severe obstacles to the plaintiff's cause of action, application of the doctrine of forum non conveniens is not appropriate.