N.C. man asks W.Va. SC to reinstate his case

Jessica M. Karmasek Mar. 30, 2011, 12:00pm


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals heard arguments Wednesday on the reinstatement of a lawsuit filed by a North Carolina man against Mylan drug companies.

Randy Mace is pleading for a West Virginia court to hear his suit because of North Carolina's two-year limit on wrongful death suits.

North Carolina's statute of limitations operates from the date of death, while West Virginia's statute starts running when the estate discovers the cause of death.

Mace's relative, Kathy, died in 2005. Mace subsequently sued in a California court in 2007, blaming a manufacturer of Fentanyl pain patches for her death. However, discovery showed that he sued the wrong patch maker.

Mace then sued Mylan in North Carolina in 2008, dismissed the suit and sued in Monongalia County.

Mylan moved to dismiss under the statute of limitations. Mace's lawyer, Kathryn Reed Bayless of Princeton, argued that it didn't start running until the California discovery identified Mylan as the source of the patches.

Judge Russell Clawges of the 17th Judicial Circuit ruled that he would not apply West Virginia's discovery rule in a case governed by North Carolina law.

On appeal, Bayless argued that a judge can't dismiss an action on grounds of inconvenient forum when a statute of limitations would bar it in the more convenient forum.

Bayless reiterated her position on Wednesday.

"I am befuddled how we can have a more convenient forum if there's no other forum," she told the justices. "The alternate forum does not exist."

In order to dismiss, there had to be another available forum, Bayless said.

The circuit court "went too far" in making its decision, she told the Court.

Mylan's lawyer, Clem Trischler of Pittsburgh, argued there was no abuse of discretion and "certainly" no error of law on the part of the circuit court.

He said it is more logical for the case to be litigated in North Carolina -- the case, he said, involved two North Carolina residents and the medication at issue was prescribed by a North Carolina physician.

Trischler called Bayless' arguments "flawed" and has said that a ruling in favor of Mace would invite forum shopping.

"I think this involves a pretty straightforward interpretation of West Virginia law," he told the Court.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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