It’s pretty easy to find well-known references to home. Home is where the heart is. Home Sweet Home. Homeward Bound. Lassie Come Home. ET phone home. Home is meant to strike up feelings of warmth, safety, happiness. No wonder it’s all over our songs, movies, and television. And, perhaps at no time more so then the end of the year holiday season. From I’ll Be Home for Christmas to Please Come for Christmas. From No Place Like Home for the Holidays to Christmas (Baby Please Come Home). And don’t forget Home Alone. Families and friends look forward to topping off another year by being home. That might mean traveling across the country to your childhood home. It might mean driving home from college for winter break. It might mean getting leave from military service and flying across the world to be home. It might also mean just not going into the office to catch a few extra hours at home. Whatever it means to you, home is special. It’s important. And, in a much less nostalgic, romantic way – courts think so too.
We’re going to cut right to the chase (in case you’re trying to spend a little extra time at home too). In Atkinson v. Luitpold Pharmaceuticals, Inc., 2019 U.S. Dist. LEXIS 211778 (E.D. Pa. Nov. 4, 2019), litigation tourists tried to use the fact that they were tourists to conduct extensive, expensive, and time-consuming “choice of law” discovery. Plaintiffs wanted to serve interrogatories, requests for admission, and document requests aimed at topics as vast as the identification of employees and physical locations to regulatory affairs and pharmacoepidemiology. Not to mention wanting to depose 30(b)(6) witnesses and corporate representatives of foreign defendants. Id. at *4. All of this they claim was so that they could support their allegation that “Pennsylvania-centric activities” should control the choice of law question.
Plaintiffs, residents of Texas and Florida, argued that because Pennsylvania has adopted a “flexible approach” to choice of law issues, they needed this discovery to show that Pennsylvania, where they allege the drug was designed, tested, and marketed, had the greater interest in having its laws applied. Id. at *5. Plaintiffs neglected the abundant case law that holds that in prescription medical product personal injury cases, the state of prescription and injury – plaintiff’s home state – has the greatest interest in application of its law. The decision has a nice collection of those cases for the Eastern District of Pennsylvania. Id. at *7-8.
Rather plaintiffs heavily relied on Griffith v. United Air Lines, Inc., 203 A.2d. 796 (Pa. 1964), which should be obvious is not a prescription drug case. Instead it involved an airplane crash in Colorado of a flight from Pennsylvania to Arizona. The Pennsylvania Supreme Court ruled that it would not apply Colorado law. While Colorado was the location where plaintiffs’ injuries occurred, the crash site was “purely fortuitous.” Id. at 806-807. That is not the case in Atkinson or almost any other prescription drug case. Plaintiffs live in Texas and Florida. They were treated by doctors in those states. They filled their prescriptions in those states. They ingested the drugs in those states. The fact that they suffered their injuries in those states is not simply fortuitous. Therefore, the law of plaintiffs’ home states “assumes much greater importance.” Atkinson at *9.
Because the court resolved the choice of law issue in accord with well-established precedent, there was no need for intrusive discovery into the defendant’s operations. That’s a win/win for the defense. Hopefully, this also translates into some additional, deserved and needed, time at home for the attorneys involved too.