# MacE v. Mylan Pharmaceuticals, Inc.

> West Virginia Supreme Court · July 22, 2011 · 227 W. Va. 666

URL: https://www.frixlaw.com/law-library/cases/9781614

## Case

- **Full name:** Randy L. MACE, Personal Representative of the Estate of Kathy W. MacE, Deceased, Plaintiff Below, Appellant v. MYLAN PHARMACEUTICALS, INC., Mylan, Inc., and Mylan Technologies, Inc., Defendants Below, Appellees
- **Court:** West Virginia Supreme Court
- **Decided:** July 22, 2011
- **Citations:** 227 W. Va. 666; 714 S.E.2d 223
- **Precedential status:** Published
- **Opinion:** Concurring in part by Benjamin
- **Judges:** Workman, Benjamin, Ketchum
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781614

## How later opinions describe it (automated extraction)

- 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- veniens 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)

## Opinion text

BENJAMIN, J.,
concurring in part and dissenting in part:
I agree in part with the result reached in the majority opinion insofar as it recognizes that the existence of a viable alternative forum is a prerequisite to the application of the doctrine of forum non conveniens. However, I dissent to the majority opinion insofar as it declares W. Va.Code 56-1-la (Supp. 2010) ambiguous. I do not believe that it is.
“The existence of a viable alternate forum is a prerequisite to the application of the doctrine of forum non conveniens.” C.J.S. Courts § 94 (footnote omitted). Commentators have further explained:
A court may not dismiss an action on the ground of forum non conveniens unless the plaintiff could have brought the action before a court other than the court in which he or she did bring it, and he or she still has such an alternate forum. In other words, the doctrine of forum non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a ease in which the controversy may be tried. Thus, the doctrine generally may not be applied where the plaintiffs cause of action was barred by the statute of limitations prevailing in the jurisdiction of the other court. AmJur. Courts § 117 (footnotes omitted).
Though North Carolina would appear at first blush to be the best forum for this action, West Virginia is nevertheless a legally viable alternative forum. In the instant case, the appellant’s cause of action is barred by the applicable statute of limitations in North Carolina. Therefore, North Carolina is not a viable alternative forum and the doctrine of forum non conveniens is not properly applicable. Under our existing law, plaintiff may maintain his action in Monongalia County where venue does lie. I would note that the appellant would have to successfully argue that the discovery rule would apply lest this ease be likewise time-barred in West Virginia.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781614. Public record. Not legal advice.