CHARLESTON – The West Virginia Supreme Court of Appeals has issued an ruling in an appeal regarding Zoloft litigation from 2012.
“The petitioners seek a writ of prohibition to prevent the Mass Litigation Panel from enforcing its order entered on October 21, 2014, dismissing them on the basis of forum non conveniens from the underlying personal injury litigation, which involves products liability and negligence claims,” the April 10 W.Va. Supreme Court of Appeals opinion states. “Following a careful review of the briefs, the arguments of counsel, the record submitted and the applicable law, we deny the requested writ.”
Justice Allen Loughry delivered the opinion of the court. Justice Menis Ketchum deemed himself disqualified and did not participate in the decision. A Senior Status judge sat for special assignment.
Loughry
Chief Justice Margaret Workman and Justice Robin Jean Davis voted in the minority, with Davis authoring her dissent.
Nineteen mothers filed their lawsuits on behalf of their minor children on July 11, 2012, alleging products liability and negligence claims in Wayne Circuit Court.
The mothers claimed their ingestion of the drug sertraline hydrochloride, also known by its brand name Zoloft, during their pregnancies caused their children to suffer birth defects.
On Aug. 7, 2012, the defendants removed 18 of the 19 plaintiffs’ cases to the U.S. District Court for the Southern District of West Virginia on the basis of diversity jurisdiction.
The plaintiffs’ motion to remand was granted by the federal court and the defendants appealed that ruling to the U.S. Court of Appeals for the Fourth Circuit.
On July 12, 2013, the Fourth Circuit refused the appeal on the basis that it did “not have the authority” to review the remand order. Thereafter, the defendants filed a motion seeking to refer the litigation to the Mass Litigation Panel.
On Sept. 24, 2013, Justice Brent Benjamin denied the motion by administrative order, “without prejudice to renew the motion in the event additional state actions [were] filed.”
On Oct. 28, 2013, a virtually identical complaint was filed in the Wayne Circuit Court by six unrelated plaintiff families against Pfizer. The six new plaintiff families are residents of Illinois, Indiana, Iowa, New York, South Carolina, and West Virginia. The circuit court entered an order the same day consolidating the two civil actions.
With two civil actions now pending, the 25 plaintiff families filed a motion seeking to refer the litigation to the Panel. While that motion was pending, the defendants filed a second notice of removal in federal court naming all 19 of the original plaintiff families.
Davis transferred the two civil actions to the panel through an administrative order on Jan. 14, 2014.
The panel held a status conference on March 4, 2014, and during this conference, the panel advised the parties that under Rule 3(a) of the West Virginia Rules of Civil Procedure, the two complaints were actually 25 civil actions, and, on March 11, 2014, the panel divided the plaintiff families into 25 civil actions in an order.
The families sought a writ of prohibition in the state Supreme Court of Appeals to prevent the enforcement of the panel’s order, and on May 27, 2014, the state Supreme Court issued its opinion, wherein it granted the writ of prohibition.
On June 24, 2014, the panel entered a case management order scheduling various hearings, setting a trial date and establishing deadlines, including a July 9, 2014, deadline for Rule 12 motions to dismiss.
In conformity with the deadline set forth in the case management order, the respondents filed a motion on July 9, 2014, seeking to dismiss 21 non-resident plaintiff families on the basis of forum non conveniens under West Virginia Code § 56-1-1a (2012), including a New York plaintiff family who had been the subject of the motion to dismiss in the Wayne Circuit Court.
Following a hearing on the motion, the panel unanimously granted, in part, the defendants’ motion to dismiss by order entered Oct. 21, 2014.
The plaintiffs seek a writ of prohibition in this court to prevent enforcement of the panel’s dismissal order.
“Based upon our consideration … we find no error in the panel’s decision to dismiss the twenty non-resident plaintiff families on the basis of forum non conveniens under the particular facts, circumstances, and procedural history of this litigation,” the opinion states. “West Virginia has no real interest in trying non-resident plaintiffs’ claims against non-resident defendants involving causes of action that accrued in states other than West Virginia.”
Because the plaintiffs’ claims arose in other states, their cases can “be tried substantially more inexpensively and expeditiously” in those other states where the sources of proof will be more easily accessible.
“Moreover, the applicable and governing law in those other states is more readily applied by the courts of those states,” the opinion states. “Importantly, the judges and jurors in the petitioners’ home states would not be impositioned by having to determine disputes involving individuals who allegedly sustained injuries while residing in those states. Under the Hoover factors, we find no ground to warrant the issuance of a writ of prohibition.”
Davis
In her dissent, Davis states that she dissents because she believes a motion to dismiss based upon forum non conveniens filed two years after litigation was begun simply is not timely.
“The litigation of the instant matter has taken a long and tortured route that has included two attempts by the defendants to remove the case to federal court and a prior petition to this court,” her opinion states. “There also was an earlier motion to dismiss a New York plaintiff family based upon forum non conveniens filed in 2012 in the circuit court of Wayne County. That motion was denied.”
Davis said a motion to dismiss based upon forum non conviens should typically be filed early in the course of litigation.
“There has been no showing of good cause to extend the period for filing the motion in the instant matter,” her opinion states. “The factors relied upon by the defendants to support their motion were obvious from the time the complaints were filed.”
Davis said that under these circumstances, the defendants’ motion should have been refused as untimely.
The plaintiffs were represented by Benjamin L. Bailey, John W. Barrett and Ryan McCune Donovan of Bailey & Glasser; and Bert Ketchum of Greene Ketchum Farrell Bailey & Tweel.
The defendants were represented by Michael J. Farrell, Erik W. Legg and Megan Farrell Woodyard of Farrell White & Legg PLLC.
W.Va. Supreme Court of Appeals case number: 14-1189
