N.C. man wants W.Va. Justices to hear his case

By Steve Korris | Mar 24, 2011

CHARLESTON – North Carolina takes a two-year limit on wrongful death suits more seriously than West Virginia, so a North Carolina man pleads for a West Virginia court to hear his suit.

CHARLESTON – North Carolina takes a two-year limit on wrongful death suits more seriously than West Virginia, so a North Carolina man pleads for a West Virginia court to hear his suit.

On March 30, Kathryn Reed Bayless of Princeton will argue at the Supreme Court of Appeals for reinstatement of a suit Randy Mace filed against Mylan drug companies in Monongalia County.

Circuit Judge Russell Clawges dismissed the suit so Mace could sue in a more convenient forum.

Clawges denied a motion to reinstate it last year, and Bayless appealed.

"North Carolina does not have a more significant relationship to the transaction than West Virginia," she wrote to the Justices.

Mylan lawyer Clem Trischler of Pittsburgh answered, "North Carolina might beg to differ."

North Carolina's statute of limitations operates from the date of death, while West Virginia's statute starts running when the estate discovers the cause of death.

Kathy Mace died in 2005.

Randy Mace sued in state court at Los Angeles in 2007, blaming a manufacturer of Fentanyl pain patches for her death.

According to Bayless, discovery showed he sued the wrong patch maker.

He sued Mylan in North Carolina in 2008, dismissed the suit, and sued in Monongalia County.

Mylan moved to dismiss under the statute of limitations, and Bayless argued that it didn't start running until the California discovery identified Mylan as source of the patches.

Clawges ruled that he would not apply West Virginia's discovery rule in a case governed by North Carolina law.

On appeal, Bayless argued that a judge can't dismiss an action on grounds of inconvenient forum when a statute of limitations would bar it in the more convenient forum.

"Second, the circuit court was wrong to base its decision on the conclusion that West Virginia's discovery rule would not apply in this case if it remained in West Virginia," she wrote.

She wrote that the transaction at issue occurred outside of North Carolina.

Quoting a prior decision, she wrote that North Carolina's only connection was the fortuity that the accident occurred there.

In reply, Trischler asked the Justices to consider additional fortuities.

"Plaintiff and plaintiff's decedent lived in North Carolina at all times relevant to the claimed injury," he wrote. "Decedent was allegedly prescribed Fentanyl by a North Carolina physician in that state.

"Decedent allegedly filled the prescription, used that product, and sustained injury in North Carolina."

He wrote that ruling for Mace would invite forum shopping.

"Moreover, it would amount to a rule requiring circuit courts to require waiver of meritorious statute of limitation defenses even when a claimant brings a stale claim in West Virginia solely to rehabilitate that claim," he wrote.

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