West Virginia: No Country for Good Decisions


Last week we were at DRI-Chicago, which had some terrific panels. We especially liked the presentations on the strategies behind the VIOXX litigation and on how to dismantle a plaintiff's omnibus expert. On the flight back we took a gander at the airline magazine, because one can read only so many advance sheets and BNA alerts. There was an article about Ken Jennings's new book. Jennings was the uber-Jeopardy champion, magnificent even when he lost to Watson. Jennings has written a book about geography that contains lots of interesting observations. Among other things, Jennings writes that he always wanted to go to Weirton, West Virginia, because it has the odd distinction of touching two states other than the state it's in. That's a fascinating fact, though not so fascinating as the idea of somebody wanting to go to West Virginia. ("One Big Family -- Really.") We had a college roommate from Weirton who had that really cool, Chuck Yeager accent. Nice guy. We loved the way he drew out the state slogan: "Wwwwwiiiild and wwwwunderful West Virginia."

Since immersing ourselves in defense-oriented litigation, we've discovered West Virginia to be wild and not-so-wonderful. We won't repeat the parade of indignities or the Judicial Hellhole riff. Let's leave it at this: while there are some good state court judges there, they are vastly outnumbered by purveyors of home-cooking and crazy rulings paving the way for verdicts that defy reason and rattle stock prices. So when your client is sued in West Virginia state court, one of the first things to consider is removal.

That's what happened in Hartman v. Caraco Pharmaceutical Laboratories, Ltd., 2011 U.S. Dist LEXIS 46924 (S.D. W. Va. April 29, 2011). The plaintiff filed a complaint in West Virginia state court, alleging that she was injured in a car accident after an episode of sleep-driving. She had taken Zolpidem, a generic substitute for Ambien. The plaintiff was a West Virginia resident. She sued the manufacturer, a Michigan resident. She also sued the pharmacy, a fellow West Virginia resident. She claimed that the pharmacy failed to warn her adequately of the sleep-driving danger. Predictably, the manufacturer removed the case to federal court, arguing that the pharmacy had been fraudulently joined. Just as predictably, the plaintiff filed for remand.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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