Opinion

MacE v. Mylan Pharmaceuticals, Inc.

  • 227 W. Va. 666
  • 714 S.E.2d 223
Court
West Virginia Supreme Court
Filed
Jul 22, 2011
Status
Published
Author
Ketchum
On the bench
Workman, Benjamin, Ketchum
Cited by
27 cases

discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non conveniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)

How later courts described this case

  • discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non conveniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)
  • discussing common law doctrine of forum non conveniens and subsequent codification of separate forum non con- *30 veniens statute in response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)
  • "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)(i) (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 alternative forum is so clearly inadequate or unsatisfactory that it is no 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,”
  • “Undeniably, the interest of justice would not be served, nor would a plaintiff be conve-nienced, if an action over which a court in this state had proper jurisdiction was dismissed in favor of an alternate jurisdiction in which the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all.”

Written by the judges who cited it.

The opinion

KETCHUM, J.,

dissenting:

WEST VIRGINIA CANNOT AFFORD TO BE A DUMPING GROUND FOR FOREIGN LAWSUITS.

West Virginia has very few trial judges and limited judicial resources. Nevertheless, the majority opinion will allow non-West Virginia residents, who suffered an injury in another state, to file their lawsuit in West Virginia.

In the present case, a North Carolina resident suffered an injury that occurred in North Carolina. The resulting lawsuit is barred under North Carolina law. Consequently, the North Carolina resident filed the lawsuit in West Virginia where the lawsuit would not be prohibited. If North Carolina law bars a North Carolina resident’s lawsuit then why should West Virginia entertain the matter? We should worry about West Virginia residents and torts that occur in West Virginia, rather than injuries suffered by a North Carolina resident that occurred in North Carolina.

The facts of this ease are straightforward: a North Carolina doctor prescribed a defective medical patch to a North Carolina resi *678 dent. The patch was not made or used in West Virginia. The North Carolina resident who used the defective patch died in North Carolina. The North Carolina statute of limitations bars the suit in North Carolina. The North Carolina resident therefore brought the suit in West Virginia because the lawsuit is not barred under our statute of limitations.

This lawsuit “would be more properly heard in a forum outside this state,” i.e. North Carolina. W. Va.Code § 56-1-la. We should not protect tort claims by North Carolina residents when the North Carolina legislature and judiciary have seen fit to prohibit these claims. We should protect West Virginia residents from defective products and let North Carolina deal with injuries suffered by North Carolina residents that occur in North Carolina.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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