My mama told me, 'You better shop around!'

By The West Virginia Record | Apr 1, 2011

While Smokey Robinson's mother may have advised him to "shop around," she was talking about courtship not courtrooms.

Nevertheless, plaintiff Randy Mace of North Carolina and his attorney, Kathryn Reed Bayless, seem to have adopted the early Motown hit as they look for a courtroom miracle to revive a lawsuit that's believed to have gasped its last gasp.

Mace's relative, Kathy Mace, also of North Carolina, died in 2005. In 2007, Mace filed a wrongful death suit in California against a manufacturer of Fentanyl pain patches, which he blamed for her death.

During discovery, Mace learned that the patches had been made by a West Virginia-based drug company, Mylan, with a national distribution center in North Carolina, so he filed suit in North Carolina, his home state, in 2008.

However, North Carolina's statutory two-year limit on wrongful death suits, extending from the time of death, had already expired. But West Virginia's statute begins running after an estate discovers the cause of death, so Mace refiled his suit here.

When Mylan moved for a dismissal under the statute of limitations, Mace's attorney, Bayless, argued that the statute didn't start running until the California discovery identified Mylan as the source of the patches. Judge Russell Clawges of our 17th Circuit refused to apply West Virginia's statute and dismissed the case, concluding that North Carolina was the proper forum for it.

Bayless is now appealing Clawges' decision to our State Supreme Court, arguing that a judge cannot recommend a forum in which the statute of limitations has already expired.

As Mylan's attorney has pointed out, the case involves two North Carolinians and a drug prescribed by a North Carolina physician. A ruling in Mace's favor would compel our 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."

That's not the kind of shopping around that should be encouraged.

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