Drug and Device Blog
www.druganddevicelaw.blogspot.com
Dechert LLP
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Finding a Happy Place
Tuesday, August 09, 2011
It’s August – days are getting shorter, pencils and notebooks have replaced beach balls
and suntan lotion in the stores, football is encroaching on baseball. Now, think of where you
would like to be as the twilight of summer approaches. At a barbecue with fresh Jersey corn
and tomatoes? Walking along the beach in the morning and the boardwalk at night? Reading
a good book by the side of the pool? Whatever your first choice lazy, late summer spot is – we
are sure it is a happy place.
Like us, our clients want to be in happy places too. Places with short statutes of
limitations, no heeding presumption – and certainly places that recognize the learned
intermediary doctrine. So, it is no surprise that drug and device manufacturers want to be in
the West Virginia courts about as much as Mike Vick wants to face Clay Matthews and the
Packers defense in Green Bay in the playoffs (keeping with our football theme from yesterday).
And, with decisions like Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009) and
Vitatoe v. Mylan Pharmaceuticals, Inc., 696 F.Supp.2d 599 (N.D.W. Va. 2010) – holding that
the learned intermediary doctrine, as it violates West Virginia public policy, cannot be applied
in a diversity case, regardless of what state’s substantive law controls – West Virginia federal
court was only marginally a more desirable location than state court.
Fortunately, earlier this year, and as reported on here, the West Virginia legislature
enacted a statute declaring the public policy of West Virginia to be that the applicability of the
learned intermediary rule is to be governed by the product liability law of the place of injury
(“lex loci delicti”) -- typically the residence of the plaintiff at the time s/he took the drug. W. Va.
Code § 55-8-16(a). Great news – but only for cases filed on or after July 1, 2011. Id. at
§16(b).
So, what should a pharmaceutical defendant sued in federal court in West Virginia prior
to July 11, 2011 by a plaintiff who resides in another state do – move for a § 1404(a) transfer.
That is precisely what the defendant in Locklear v. Mylan Inc., 2011 U.S. Dist. LEXIS 84398
(N.D. W.Va. Aug. 1, 2011) did – having been the defendant in the horrible Woodcock and
Vitatoe decisions, Mylan was certainly looking to avoid a trifecta. If this didn’t work, who
knows? Poor Mylan might want to consider moving out of West Virginia.
