Finding a Happy Place


It’s August – days are getting shorter, pencils and notebooks have replaced beach balls and suntan lotion in the stores, football is encroaching on baseball. Now, think of where you would like to be as the twilight of summer approaches. At a barbecue with fresh Jersey corn and tomatoes? Walking along the beach in the morning and the boardwalk at night? Reading a good book by the side of the pool? Whatever your first choice lazy, late summer spot is – we are sure it is a happy place.

Like us, our clients want to be in happy places too. Places with short statutes of limitations, no heeding presumption – and certainly places that recognize the learned intermediary doctrine. So, it is no surprise that drug and device manufacturers want to be in the West Virginia courts about as much as Mike Vick wants to face Clay Matthews and the Packers defense in Green Bay in the playoffs (keeping with our football theme from yesterday). And, with decisions like Woodcock v. Mylan, Inc., 661 F. Supp.2d 602 (S.D.W. Va. 2009) and Vitatoe v. Mylan Pharmaceuticals, Inc., 696 F.Supp.2d 599 (N.D.W. Va. 2010) – holding that the learned intermediary doctrine, as it violates West Virginia public policy, cannot be applied in a diversity case, regardless of what state’s substantive law controls – West Virginia federal court was only marginally a more desirable location than state court.

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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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