North Carolina Man May Sue Drug Company in Its Home State When Suit Barred at Home – Mace v. Mylan Pharmaceuticals

By July 21, 2011Dangerous Drugs

When a family that has been harmed by a defective drug files a lawsuit, our dangerous drug attorneys usually sue in their own state because it’s most convenient. However, the drug company is rarely from the same state, and it’s also possible to sue in the company’s own home state if necessary. That choice led to a dispute in Mace v. Mylan Pharmaceuticals Inc. et al, a wrongful death lawsuit brought by Randy Mace of North Carolina against Mylan, a company headquartered in West Virginia. Mace lost his wife, Kathy W. Mace, to an overdose of the painkiller fentanyl after she wore a Mylan-made fentanyl patch for four days. He originally sued another drug maker in California, but realized that Mylan was the correct defendant after the two-year statute of limitations had passed in both North Carolina and West Virginia. Believing West Virginia would be more likely to make an exception to its deadline, he re-filed in West Virginia.
In the trial court, Mylan requested and received a dismissal on the grounds of forum non conveniens — that West Virginia is not an appropriate forum for a North Carolina injury. Under this rule, courts may send cases to another court believed more convenient if such an alternative forum exists. However, the court dismissed the case on the condition that Mylan could not oppose forum in North Carolina and would waive its statute of limitations defense. After that ruling, Mylan filed a motion to clarify, arguing that it was not required to waive any future statute of limitations defense — just ones up until that ruling. This was eventually granted, and Mace asked to reopen the case because the case would be barred in North Carolina. That motion was dismissed and he appealed.
Before the West Virginia Supreme Court, Mace argued that the trial court misinterpreted the law on forum non conveniens. Under West Virginia caselaw, he argued, the existence of an alternative forum is required for dismissal under forum non conveniens, not just consideration. He also cited caselaw in support of his argument that statutes of limitations factor into whether a forum is available. When the state legislature codified this doctrine, he said, it did not intend to change the doctrine. The Supreme Court examined the plain language of the resulting statute and found that it was ambiguous: it assumes alternative forums exist and even addressed the issue of statutes of limitations. Thus, the court chose to construe the statute according to both federal and state caselaw. It found that when the alternative forum provides no remedy or an inadequate remedy, no alternative forum “exists” under the law. Thus, it reversed the forum ruling and sent Mace’s case back to trial court for consideration of other issues.
This case decides West Virginia law, but it’s still an important decision for defective pharmaceutical lawyers. Because this decision makes it easier for out-of-state victims to sue in-state pharmaceutical companies like Mylan, it makes the state a more attractive choice for fentanyl patch lawsuits like Mace’s. Of course, we hope most people in his position act early and get good legal advice so they don’t have to worry about the statute of limitations. But if that statute expires in another state, or there’s another reason that West Virginia seems like a better forum, this decision could help keep the claim alive. Our pharmaceutical liability attorneys appreciate having more options, because each new forum increases the chance that clients who have lost a family member or suffered serious injuries will have their day in court.


If your family has suffered a serious loss because of a drug or medication you thought you could trust, you should call Carey, Danis & Lowe to discuss your rights and your legal options. For a free, confidential case evaluation, send us a message through our website or call 1-877-678-3400 today.
Similar blog posts:
FDA Pulls Painkillers From Market After Tests Confirm Fatal Heart Rhythm Problems
FDA Recalls Powerful Fentanyl Pain Medication Patches Because of Overdose Risk
Johnson & Johnson Recalls Duragesic Patch Painkillers Due to Overdose Potential — Illinois Defective Prescription Drug Lawyer