West Virginia Legislature Clarifies Public Policy

We were quite concerned a couple of years back when, in the wake of the West Virginia Supreme Court's horrible decision in State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting the learned intermediary rule, a federal district court in that state undertook to apply West Virginia law to out-of-state plaintiffs in Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009) - claiming that Karl established "public policy" and therefore mandated use of forum state law no matter how unrelated the suit.  See our post, here.  For that, we awarded Woodcock a place in our bottom ten worst decisions of 2009.

Some deterrent that was.

Last year another West Virginia federal court did the same thing, in Vitatoe v. Mylan Pharmaceuticals, Inc., 696 F.Supp.2d 599 (N.D.W. Va. 2010).

Poor Mylan - it's the only major drug company based in West Virginia.  Our post on the subject was entitled "Why Drug Companies Should Beware Of Doing Business In West Virginia."  Our advice at least attracted some attention in West Virginia.

Well, we're happy to report - or, more accurately have it reported to us by Phil Combs of Allen, Guthrie & Thomas (thanks, Phil) - that the West Virginia legislature has stepped in to stop this choice-of-law foolishness.

Here's a copy of the final, enrolled bill, passed March 12, which declares the public policy of West Virginia to be that the applicability of the learned intermediary rule is to be decided on the basis of the residence of the plaintiff at the time s/he took the drug:

§55-8-16. Choice of Law in Pharmaceutical Product Liability Actions.


(a) It is public policy of this state that, in determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug for failure to warn, the duty to warn shall be governed solely by the product liability law of the place of injury (“lex loci delicti”).

Mylan (and the rest of us) can rest a little easier, at least after the effective date of July 1, 2011.