Choice Of Law

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It is the time of year for reflection and resolutions. We look back on the ups and downs of the year that is about to end and look forward to the New Year with hope, promises and predictions.  As for 2015 here at the DDL Blog – we hope we will continue to be helpful and informative to our readers, we promise that Bexis will find at least one decision a quarter worthy of a full-blown tirade, and we predict that McConnell will keep us up-to-date on both legal trends and what’s hot on TV and at the movies.

As for 2014, Bexis is posting his annual Best Of and Worst Of lists.  Keeping with that theme, we decided to post about a case that has some of both, the good and the bad.  The case is Brown v. Johnson & Johnson, 2014 U.S. Dist. LEXIS 173800 (E.D. Pa. Dec. 9, 2014) and it involves the over-the-counter drug Children’s Motrin.  Wanting to end on a high note, we’ll dispense with the low points of the decision first.

First up, the preemption rulings.  The court held that plaintiff’s failure to warn claim was not preempted because the defendant had not shown that it could not have used the CBE process to change the warning label.  Establishing warning preemption in a drug case is an “exacting burden” for defendants requiring clear and convincing evidence that the FDA would have rejected the warning proposed by plaintiff.  Id. at *2-3.  The court applied the same “exacting burden” to defendant’s design-related preemption defense, finding a lack of evidence that the FDA would have rejected a proposed design change as well.  Id. at *6.Continue Reading Celebrating the Highs and Lows

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Yesterday the Third Circuit upheld a District of New Jersey decision denying class certification as to plaintiffs’ consumer fraud and unjust enrichment claims.  Grandalski v. Quest Diagnostics Inc., 2014 U.S. App. LEXIS 17543 (3d. Cir. Sep. 11, 2014).

Plaintiffs alleged that Quest had overbilled them for testing services and their complaint proposed multiple nationwide…

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We have a soft spot in our heart for the more technical, lawyerly parts of what we do.  Any nimrod on the street can lob in his or her two cents on freedom of speech or search and seizure, but it takes a legal craftsman to talk sensibly about choice of law, or jurisdictional or procedural issues.  Sometimes we here on the blog approach such issues warily. We feel the need for circumspection, since we do not know which side of the issue we might want to argue in some future case.  At the same time, the likelihood of repeat transactions, where you could be on either side of the transaction, should theoretically push rules toward a rational middle-ground.

On choice of law, we tend to favor the notion that liability issues should be governed by the law of the plaintiff’s residence.  That is where the alleged treatment and injury occurred, and those factors are important in any choice of law analysis.  Such a rule also imposes some limit on blatant forum-shopping by plaintiffs.  Further, such a rule also makes aggregation (class actions, consolidation) less likely because the different plaintiffs will have different laws applying to their claims. Class actions are no longer much of a threat in personal injury cases, but we still find the vexing presence of varying state laws to be occasionally useful. But what law should apply to punitive damages?

In Williams v. Novartis Pharmaceuticals Corp., 2014 U.S. Dist. LEXIS 55352 (S.D. Ohio April 21, 2014), we are treated to a rational choice of law analysis.  It is yet another Aredia-Zometa case.  Some day, Hollingsworth or one of the luminaries on that defense team will be able to author an entire hornbook on all of the issues that have cropped up in that litigation.  Williams was actually a couple of cases, both originally filed in the United States District Court for the District of Columbia.
The cases ended up in the Southern District of Ohio, but the parties agreed that the original filing meant that the District of Columbia’s choice of law rules  applied.  (As we have mentioned before, that procedural wrinkle could conceivably incite forum-shopping.)   The parties also agreed that Ohio law governed the plaintiffs’ claims with respect to issues of liability and compensatory damages, because the plaintiffs were Ohio residents.  Where the parties parted company was on choice of law for punitive damages.Continue Reading New Jersey Law Governs, and Precludes, A-Z Claim for Punitive Damages

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Way back in law school our moot court topic involved allegations of “wrongful birth” or “wrongful conception.”  The plaintiffs alleged that a doctor failed to detect a catastrophic birth defect, thus depriving the parents of the option to terminate the pregnancy.  The case involved intractable moral/philosophical  and, thus, legal issues.  That “thus” feels mandatory, but perhaps will not withstand rigorous analysis.  Nevertheless, it’s a touchy subject.  Such claims suggest, at least implicitly, that it might be better never to have been yanked from the void into this maelstrom of meat.  Many people recoil from that notion.  When a recent New Yorker article quoted the father of the Newtown, Ct shooter as wishing his son had never been born, the sentiment seemed both sensible and shocking.

Law school seems like a long time ago, and the intervening years have been blissfully bereft of issues of wrongful conception.  But a case last week caught our eye and contains some of these same issues, as well as others that are more typical in our practice.  The case was Vanden Bosch v. Bayer Healthcare Pharmaceuticals, Inc., 2014 U.S. Dist. LEXIS 48055 (W.D. Ky. April 8, 2014), and it concerned an intrauterine contraceptive system.  One of the plaintiffs, Ms. Vanden Bosch, was an Indiana resident.  She claimed that the contraceptive system caused her to suffer from interstitial cystitis.  The other two plaintiffs were Kentucky residents.  They were a mother and daughter.  The mother claimed that the contraceptive caused a chromosome deletion and that, consequently, the daughter was born with severe genetic defects.

The first issue was choice of law.  This topic can seem dry, but it can be outcome dispositive and in this case we were treated to a rather colorful statement of law that Kentucky courts “are very egocentric or protective concerning choice of law questions” and there is a “strong preference in Kentucky for applying Kentucky law”.  Vanden Bosch, 2014 U.S. Dist. LEXIS 48055 at *7.  Kentucky has a one year statute of limitations and plaintiff Vanden Bosch acknowledged that her claim was barred if that one-year rule applied.  She tried to escape the one year rule, but could not.  In responding to the defendant’s motion to dismiss, Vanden Bosch submitted an affidavit stating that the Amended Complaint “mistakenly alleges the place of the device insertion as Louisville, Kentucky” and that to the best of her recollection, her contraceptive device was actually inserted in Indiana.  Indiana had a longer SOL.  But the court refused to consider these new facts, as they were outside of the pleadings.   Id. at *9 n. 2.  It does not much matter, because Kentucky’s borrowing statute applies the statute of limitations of another state only when a cause of action arose in that state and only when the other state has a shorter statute of limitations.  The real problem for Vanden Bosch was the filing of her case in Kentucky.

And now we get to the wrongful conception issue.  To the extent that plaintiff Hogue was trying to recover damages based on the birth of her daughter, the court was having none of it:  “A parent has no cognizable legal injury when alleged wrongdoing results in a genetically or congenitally impaired human life, even severally impaired….”  Id. at *17.  Put another way, a “child’s life cannot be considered a legally cognizable injury.”  Id. at *18.  That’s it.  There is considerably less agonizing over that issue than we recall from our law school exercise.  Real life can be cut and dry.  Law school never is.    The former pays better.Continue Reading Mixed Reasoning and Wrongful Conception

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Happy thanksgiving to all.  We all have plenty of things to be thankful for.  We also have some things we’re not thankful for.  This post discusses one of those.

The recent opinion in Rowland v. Novartis Pharmaceuticals Corp., ___ F. Supp.2d ___, 2013 WL 6145119 (W.D. Pa. Nov 22, 2013), has us shaking our heads.  That’s not so much because of the legal issue being fought over, but rather because of the machinations that led to a most peculiar result.

Basically, forum-shopping paid off.

Rowland involved three plaintiffs, Rowland, Machin, and Orr, all of whom are (or were) Pennsylvania residents.  Rowland, 2013 WL 6145119, at *1.  However, none of them filed suit in Pennsylvania.  Rowland and Machin brought suit in D.C. and Orr in New York.

Id. at *2.

Rowland is yet another Aredia/Zometa case.  We’ve discussed the underlying issue − whether availability of punitive damages should be determined under:  (1) the law of a corporate defendant’s principal place of business, or (2) the law of the place of the plaintiff’s injury – before.  See here and here.Continue Reading Making Forum-Shopping Pay

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Every state has its peculiarities, oddities, firsts, and little known facts. For instance, did you know that New Jersey (this blogger’s home state) has the tallest water tower in the world or that it was the site of the first baseball game? Well, our case for today is from Tennessee.  So, did you know?

The world’s largest artificial skiing surface is located in Gatlinburg

Tennessee was the last state to secede from the Union during the Civil War and the first state to be readmitted after the war.
  • Bristol is known as the Birthplace of Country Music
  • Oak Ridge is known as the Energy Capital of the World
  • Tennessee has more than 3,800 documented caves
  • Nashville’s Grand Ole Opry is the longest continuously running live radio program in the world. It has broadcast every Friday and Saturday night since 1925
  • Coca-Cola was first bottle in 1899 at a plant in downtown Chattanooga after two local attorneys purchased the bottling rights to the drink for $l.00

Continue Reading Quirky Facts About Tennessee and Choice of Law

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Have you ever been sitting in a courtroom and wondered why you were there?  We don’t mean that in a metaphysical sense, though that probably happens sometimes, too.  No, we are thinking of the situation where you realize that neither the plaintiff nor the defendant are citizens/residents of the jurisdiction, and that the events in issue did not occur there either.  Why are we here?  This sort of thing happens to us a lot in courtrooms in New Jersey and Pennsylvania.  Of course, there is an answer to the question: that is where the plaintiff filed the lawsuit.  That choice of forum, so we are told by many authorities, is entitled to some respect.  Okay, but how much?  Forum-shopping is not one of the glories of American jurisprudence.  It is a form of lawsuit arbitrage that inflicts inappropriate costs on parties and court systems.  (Of course, some courts have unashamedly promoted themselves as litigation-tourist destinations.) When a plaintiff goes forum-shopping, what is being purchased?  It could be plaintiff-friendly judges, jurors, laws, or procedures.   It is ineluctably unseemly.  Plaintiffs, being plaintiffs, sometimes push things a bit far,  Forum shopping starts to look like forum-shoplifting.

If we had represented the defendant in the recent case of Kuennen v. Stryker Corp., 2013 U.S. Dist. LEXIS 1555571 (W.D. Va. Oct. 30, 2013), we would have wondered why we were in the place where the case was originally filed, the District of Columbia.  The plaintiff, a resident of Virginia, underwent arthroscopic shoulder surgery in Virginia.  The plaintiff received a pain pump made and sold by the defendants, to infuse a local anesthetic into the shoulder joint space.  Now the plaintiff was alleging that the pain pump caused her to lose cartilage in her right shoulder joint.  The defendants were both Stryker entities, which we will call “Corp.” and “Sales.”  Neither was a citizen of D.C.  The pain pump was not designed, manufactured, or sold in D.C. and the alleged injury occurred in Virginia.  The defendants did not simply wonder why they were being hauled into a D.C. court; they successfully moved under section 1404 to transfer the case to the place where it should have been filed, Virginia.  End of forum-shopping, right?

Maybe.  Yeah.  But not without a tussle.  The defendants moved for summary judgment based on the statute of limitations.   The defendants contended that the plaintiffs’ claims were barred by the Virginia two-year statute of limitations.  In opposition, the plaintiffs asserted that the D.C. statute of limitations should apply with its favorable discovery role as to the accrual of the cause of action. The parties agreed that if the Virginia statute of limitations applied, the case would be dismissed, and if the D.C. statute applied, the case would continue, at least for a while.  Why is it even an issue?  The case is in Virginia, right? Not so fast.  When an action is transferred under section 1404(a) from one district court to a district court in another state, the transferee court must apply the same law as the transferor court would have applied.  The forum-shopping effect lingers.Continue Reading No D.C. Personal Jurisdiction = No Loose D.C. Statute of Limitations = No Case

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Due to Reed Smith’s involvement with the Nuvaring litigation discussed below, this post is from the Dechert side of the blog only.

As an almost lifelong resident of New Jersey, this member of our blogging team knows things like —  it’s “the shore” not “the beach”; how to navigate a circle, but not how to pump my own gas; jug handles are for making lefts not for pouring water; and where the Highway 9 is from Springsteen’s “Born to Run.”  I’ve also heard all the jokes.  Toxic waste, the accent, the big hair, the malls.  Or, how about that tolls are collected on all New Jersey bridges as you leave the state.  Why?  Because nobody would pay to go into New Jersey.  Well, maybe not nobody.  In the last ten days, three separate courts have ruled on defendants’ motions seeking to embrace New Jersey punitive damages law.  That’s right, in addition to Thomas Edison, Frank Sinatra, Jack Nicholson, corn and tomatoes, and full service gas stations, New Jersey has some pretty good law too.

As we’ve said before, when it comes to choice of law on punitive damages it is a question of “where you stand depends on where you sit.”  And if you sit in New Jersey, you are probably well aware that New Jersey’s Products Liability Act immunizes drug and device manufacturers from punitive damages (there is that fraud-on-the-FDA exception, but we all know that’s preempted).  So while this certainly isn’t a one size fits all argument, it’s no surprise that New Jersey manufacturers (or manufacturers from any state with good punitive damages law) argue that their home state has the greater interest with respect to the conduct at issue on a punitive claim.

While we’ve posted several times on this issue (see here for example), it remains both important and intriguing because courts continue to come down on both sides of the issue.  To start, let’s compare Troutt v. Novartis Pharms. Corp., 2013 U.S. Dist. LEXIS 102135 (M.D. Fla. Jul. 22, 2013) and Prather v. Organon USA, Inc. (In re Nuvaring Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 99734 (E.D. Mo. Jul. 12, 2013).  Hmmm.  One decision from Florida and one decision from Missouri.  Can you guess which one we like better?Continue Reading A Little Love for the Garden State

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Today we discuss the second summary judgment decision entered in the pelvic mesh MDL bellwether cases.  Stay tuned for a Daubert decision coming soon.  And again, these posts come solely from the Dechert side of the blog.

This summary judgment ruling can be found at In re: Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2:11-cv-01224, 2013 U.S. Dist. LEXIS 78052 (S.D.W.V. June 4, 2013).  Not surprisingly, since we are talking about the same MDL and same bellwether pool, today’s case and yesterday’s case bear some striking similarities.  To begin with, we are dealing with the same product — Avaulta Plus Biosynthetic Support System – and essentially the same challenges to plaintiff’s claims and to defendant’s affirmative defenses.

And, many of the rulings were the same.  Summary judgment granted on plaintiff’s manufacturing defect claims (no evidence of deviation from a standard or specification), Id. at *8-14, warranty claims (no privity), id. at *24-25, and negligent inspection, marketing, packaging and selling claim (no opposition).  Id. at *25.  The court’s rulings on plaintiff’s motion for summary judgment as to defendant’s affirmative defenses were nearly identical as well.  Id. at *25-35.

There are, however, two aspects of today’s case that we thought merited separate treatment. The first is an interesting choice of law twist and the second is a different result on failure to warn.

Today’s case involves plaintiff Rizzo who filed her lawsuit in the Northern District of Georgia.  It was then, of course, transferred to the MDL pending in the Southern District of West Virginia.  And, as the court points out, when deciding questions of state law, and MDL judge “must apply the state law that would have applied to the individual case[] had [it] not been transferred for consolidation.”  Id. at *5.  And choice of law is a question of state law.  So, the court had to look at Georgia’s choice of law rules.Continue Reading Pelvic Mesh Bellwethers Continued

In a departure from blog tradition (and possibly etiquette), I’m going to break the fourth wall and speak in the first-person singular for a moment. After much encouragement from my colleagues and several not-so-subtle hints from Bexis directed at having to post yet another guest post from me, today I become an official member of the DDL…

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