CHARLESTON – Randy Mace can't sue Mylan drug companies over his wife's death in North Carolina, where he lives and she died, but he can sue them in West Virginia.
On June 16, the West Virginia Supreme Court of Appeals ruled that Monongalia County Circuit Judge Russell Clawges must hear a claim that a fentanyl pain relief patch killed Kathy Mace.
A statute of limitations would bar the suit in North Carolina.
Chief Justice Margaret Workman wrote that a doctrine allowing a defendant to move for a more convenient forum is not triggered if there is no other available forum.
She wrote that justice would not be served "if an action over which a court in this state had proper jurisdiction was dismissed in favor of an alternate jurisdiction in which the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all."
Justices Robin Davis and Thomas McHugh concurred.
Dissenting Justice Menis Ketchum wrote, "If North Carolina law bars a North Carolina resident's lawsuit then why should West Virginia entertain the matter?"
Justice Brent Benjamin reserved the right to file a partial dissent.
Kathy Mace died in 2005, wearing a patch.
Randy Mace sued Mylan Pharmaceuticals, Mylan Inc., and Mylan Technologies in 2008, asserting claims of product liability, negligence, and breach of warranty.
More than two years had passed since Kathy's death, but he claimed he didn't discover Mylan caused her death until later.
In West Virginia, a two-year limit on wrongful death claims doesn't start running until a victim discovers the cause.
In North Carolina, the two-year limit starts running on the date of death.
The Mylan companies didn't contest West Virginia jurisdiction but moved to dismiss the suit so Mace could file it in North Carolina.
They argued that a plant in Vermont made the patch and shipped it to North Carolina.
Clawges dismissed it, writing that "the case may be time barred as North Carolina does not recognize the discovery rule in wrongful death actions."
He wrote, "However, North Carolina law would be applied by this court if this action were to be litigated in West Virginia."
He denied reconsideration last year, declining to find that West Virginia's discovery rule should apply.
On appeal, Mace challenged the decision to dismiss the case and the promise to apply North Carolina law if the Justices should send it back.
To answer the forum question, the majority relied on a U. S. Supreme Court decision from 1981, requiring a court to determine whether there exists an alternate forum.
"Ordinarily, this requirement will be satisfied when the defendant is amenable to process in the other jurisdiction," that court held.
"In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative," they held.
"Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute," they held.
Workman wrote, "Because North Carolina does not recognize the discovery rule, it is not a forum in which Mr. Mace can attempt to litigate his claims."
She wrote that she didn't intend to imply that West Virginia's discovery rule would apply or that Mace would succeed under it if given the opportunity.
She shrugged off his question about Clawges applying North Carolina law, finding his brief consideration of it didn't amount to a decision the Justices could consider.
"No motion was ever filed with regard to choice of law questions, nor were the parties given an opportunity to fully brief the issues," she wrote.
Ketchum wrote, "We should not protect tort claims by North Carolina residents when the North Carolina legislature and judiciary have seen fit to prohibit these claims."
He wrote, "We should protect West Virginia residents from defective products and let North Carolina deal with injuries suffered by North Carolina residents that occur in North Carolina."
Kathryn Reed Bayless of Princeton represented Mace. Clem Trischler of Pittsburgh represented the Mylan companies.