When you see a reference to West Virginia in this blog, it’s usually followed by biting criticism, regret, and a citation to the latest Judicial Hellhole listing. But not everything out of the Wild and Wonderful state makes us grimace. Heck, we’re huge fans of Chuck Yeager, Jerry West, and Don Knotts. John Denver sang a pretty nice song about the place — sort of. (The Shenandoah River and Blue Ridge Mountains are associated more with Virginia.)

And, mirabile dictu, last week saw a nice West Virginia opinion on state safe harbor law. Arnett v. Mylan, Inc., 2010 U.S. Dist. LEXIS 50460 (S.D. W. Va. May 20, 2010). It’s not exactly preemption, but it’s kind of a kissing cousin to it (we are resisting the usual West Virginia jokes, honest), and it’ll do.

The case was a wrongful death action, claiming plaintiff’s decedent died from wearing a fentanyl pain patch. The decedent was an Oklahoma resident, and the defendants are corporate residents of West Virginia. Because West Virginia uses the lex loci delicti (place of the injury) test, Oklahoma law applied to the case. That in itself is a good ruling. Then the court discusses the Twombly standard. By this point, we’re practically shooting off fireworks, and it’s not just because of the Holiday. (More on that later.)

Count Three of the Complaint asserts a claim under the Oklahoma Consumer Protection Act (OCPA). The OCPA provides a safe harbor for defendants by providing that nothing in the act applies to “[a]ctions or transactions regulated under laws administered by … any … regulatory body or officer acting under statutory authority of this state or the United States.” 15 Okla. Stat. section 754(2). The pain patch was subject to the Food Drug and Cosmetic Act, so the OCPA action is history, right? Yes. Yes it is. But not without a fight.

The plaintiff argued that the section 754(2) safe harbor should not apply, because the federal law and regulations relied upon by defendant provide no independent remedy. Of course, it’s true that there’s no private right of action under the FDCA. The plaintiff’s argument reduces to the old there’s-no-wrong-without-a-remedy theme. First of all, that’s nonsense. There are loads of wrongs without remedies. Lots of people this weekend yielded 146 minutes of their lives to watch Sex and the City 2. Sadly, there’s no remedy for that. Second, it’s perfectly appropriate for society to decide that some interests are better protected via policy-setting that is well-informed and consistent, as opposed to the jury trial lottery system.

There is no decision from any Oklahoma court addressing the scope of the section 754(2) safe harbor. But there is an opinion from a New Jersey federal court on this issue, and it’s not great (at least on this issue). It’s not terrible, either. As the young’uns would say, it’s just “meh.” In Money v. Bristol-Myers Squibb Co., 2009 U.S. Dist. LEXIS 121094, 2009 WL 5216987 (D.N.J. December 30, 2009), the court acknowledged that the absence of a private right of action under FDCA didn’t call off the safe harbor, because the federal regulatory scheme “exists to afford protection to consumers, which may indeed be sufficient remedy.” But the court refused to apply the safe harbor because the parties had not adequately briefed whether the defendants had actually complied with the federal regulations. In any event, the court dismissed the plaintiff’s claim on other grounds. Thus, we’re calling the court’s insistence on compliance — which introduces complications and second-guessing — as mere, unfortunate dicta.

The West Virginia court did much better, at least in our eyes. (We’ll be rooting for the Mountaineers the next time they take on the Scarlet Knights.) As the Arnett court held, “Contrary to the Money court’s analysis, the simple language of section 754(2) focuses solely on whether there is regulation, not whether there is compliance.” Arnett, 2010 U.S. Dist. LEXIS 50460, * 10. That’s clear-thinking and that’s a safe harbor.

Not to sound ungrateful but can’t we get rulings like this occasionally from the West Virginia state courts?
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Speaking of gratitude, today is Memorial Day. Our Uncle Ronny is a devotee of the Sunday ABC News talking-heads show, This Week, but he thinks that the In Memoriam section scrolls by the names of the week’s war dead too quickly. He wishes it slowed down so that he could read all the names, hometowns, and ages. We agree.

Uncle Ronny doesn’t read this blog, but that’s okay. We’re frankly grateful that anybody reads it. We’re grateful to be able to write about law, even when we disagree with the court’s application, and we’re grateful for any and all comments, even when they disagree with us. We’re not blind to the fact that the reason we can have such a free exchange of ideas, and the reason that we live in a nation of law, is because so many brave people made the ultimate sacrifice.

Today we’re going to slow down, remember, and express gratitude.