Justia.com Opinion Summary: Randy Mace, as personal representative of the estate of Kathy Mace, appealed from an order of the circuit court dismissing his wrongful death lawsuit on the basis of forum non conveniens. Applying the forum non conveniens statute, the circuit court concluded that North Carolina, the state in which the action accrued, was a more convenient forum for Mace's claims. Mace argued, however, that he was unable to try his claims in North Carolina because they were barred by that state's statute of limitations. Thus, he argued, the circuit court erred in dismissing the case because it misinterpreted the forum non conveniens statute as permitting dismissal despite the lack of an alternate forum in which the claims may be tried. The Supreme Court reversed and remanded. Finding the language of the statute ambiguous, the Court construed the statute in a manner consistent with the Court's prior case law and the federal common law doctrine of forum non conveniens. Under this construction, the circuit court erred in its interpretation of the statute.
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2011 Term
No. 35710
FILED
June 16, 2011
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
RANDY L. MACE, PERSONAL REPRESENTATIVE OF
THE ESTATE OF KATHY W. MACE, DECEASED,
Plaintiff Below, Appellant
v.
MYLAN PHARMACEUTICALS, INC., MYLAN, INC.,
and MYLAN TECHNOLOGIES, INC.,
Defendants Below, Appellees
Appeal from the Circuit Court of Monongalia County
The Honorable Russell M. Clawges, Judge
Civil Action No. 08-C-480
REVERSED AND REMANDED
Submitted: March 30, 2011
Filed: June 16, 2011
Kathryn Reed Bayless, Esq.
Bayless Law Firm, PLLC
Princeton, West Virginia
Attorney for Appellant
Clem C. Trischler, Esq.
Pietragallo Gordon Alfano Bosick
& Raspanti, LLP
Pittsburgh, Pennsylvania
Attorney for Appellees
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a
separate opinion.
JUSTICE KETCHUM dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1.
“Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2.
“‘A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).” Syl.
Pt. 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).
3.
“A statute that is ambiguous must be construed before it can be applied.”
Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
4.
“‘The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.’ Syllabus point 1, Smith v. State Workmen’s
Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).” Syl Pt. 3, Davis
Mem’l Hosp. v. W. Va. State Tax Comm’r, 222 W. Va. 677, 671 S.E.2d 682 (2008).
5.
“‘In ascertaining legislative intent, effect must be given to each part of
the statute and to the statute as a whole so as to accomplish the general purpose of the
i
legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W. Va.
108, 219 S.E.2d 361 (1975).” Syl. Pt. 2, White v. Wyeth, 227 W. Va. 131, 705 S.E.2d 828
(2010).
6.
“‘A statute should be so read and applied as to make it accord with the
spirit, purposes and objects of the general system of law of which it is intended to form a
part; it being presumed that the legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether constitutional, statutory or common,
and intended the statute to harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if its terms are consistent therewith.’ Syl. Pt. 5,
State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).” Syl. Pt. 2, State v. McClain, 211 W.
Va. 61, 561 S.E.2d 783 (2002).
7.
“The common law principle of forum non conveniens is applicable only
if, as a threshold matter, the forum court has jurisdiction and venue is proper under the
statute. It presupposes at least two forums in which the defendant is amenable to process;
the doctrine furnishes criteria for choice between them.” Syl. Pt. 2, Norfolk and W. Ry. Co.
v. Tsapis, 184 W. Va. 231, 400 S.E.2d 239 (1990), superseded by statute, W. Va. Code § 56
1-1a (Supp. 2010).
ii
8.
Under West Virginia Code § 56-1-1a (Supp. 2010), dismissal of a claim
or action on the basis of forum non conveniens presupposes at least two forums in which the
defendant is amenable to process; the statute furnishes criteria for choice between them. In
the event that the defendant is not amenable to process in any alternate forum, dismissal of
a claim or action under this statute would constitute error.
9.
In considering “whether an alternate forum exists in which the claim or
action may be tried” pursuant to West Virginia Code § 56-1-1a(a)(1) (Supp. 2010), an
alternate forum is presumed to “exist” where the defendant is amenable to process. Such
presumption may be defeated, however, if the remedy provided by the alternative forum is
so clearly inadequate or unsatisfactory that it is no remedy at all. In such cases, the alternate
forum ceases to “exist” for purposes of forum non conveniens, and dismissal in favor of that
forum would constitute error.
iii
WORKMAN, Chief Justice:
The plaintiff below and appellant herein, Randy L. Mace (“Mr. Mace”), as
personal representative of the Estate of Kathy W. Mace (“Ms. Mace”), appeals from an order
of the Circuit Court of Monongalia County, West Virginia, dismissing his wrongful death
lawsuit on the basis of forum non conveniens. Applying West Virginia Code § 56-1-1a
(Supp. 2010), the forum non conveniens statute, the circuit court concluded that North
Carolina, the state in which the action accrued, is a more convenient forum for Mr. Mace’s
claims. Mr. Mace contends, however, that he is unable to try his claims in North Carolina,
because they are barred by the statute of limitations in that state. Thus, he contends, the
circuit court erred in dismissing the case, because it misinterpreted the forum non conveniens
statute as permitting dismissal despite the lack of an alternate forum in which the claims may
be tried.
Upon careful consideration, the Court finds that the language of the statute is
ambiguous and should be construed in a manner that is consistent with this Court’s prior case
law and the federal common law doctrine of forum non conveniens. Under this construction,
the circuit court erred in its interpretation of the statute. Its order dismissing this action on
the basis of forum non conveniens is, therefore, reversed and the case is remanded for further
consideration consistent with this opinion.
1
I. FACTS AND PROCEDURAL HISTORY
Ms. Mace, a North Carolina resident, died on October 25, 2005, allegedly from
an overdose of the narcotic pain medication, fentanyl. On July 1, 2008, Mr. Mace filed a
wrongful death lawsuit in the Circuit Court of Monongalia County against Mylan
Pharmaceuticals, Inc., Mylan, Inc., and Mylan Technologies, Inc. (jointly “the Mylan
defendants”).
Mylan Pharmaceuticals, Inc., is a West Virginia corporation with its
headquarters in Morgantown, West Virginia; Mylan Technologies, Inc., is a West Virginia
corporation with its headquarters in St. Albans, Vermont; and Mylan, Inc., is a Pennsylvania
corporation with its headquarters in Canonsburg, Pennsylvania. Mr. Mace asserts that the
Mylan defendants were responsible for the design, manufacture, marketing and distribution
of a pain patch known as the Mylan Fentanyl Transdermal System (“the Mylan patch”).
In the complaint, Mr. Mace alleges that Ms. Mace was prescribed the Mylan
patch on October 21, 2005, and that she died four days later from a fentanyl overdose while
wearing that patch. Mr. Mace asserts claims of strict products liability, negligence, breach
of implied warranty and breach of express warranty, and seeks punitive damages for
deliberate, intentional reckless and/or malicious behavior.
Mr. Mace further asserts in the complaint that
[t]he plaintiff did not know, and a reasonable person under the
circumstances would not have had reason to know, that the
2
patches prescribed for, worn, and alleged to have been a cause
of decedent’s death were manufactured by Mylan until less than
two years before filing this complaint.
Importantly, both West Virginia and North Carolina, where Ms. Mace died, have a two-year
statute of limitations for wrongful death claims. W. Va. Code § 55-7-6(d) (2008); N.C. Gen.
Stat. § 1-53(4) (2008). In his brief to this Court, Mr. Mace explains that he had originally
sued another generic drug manufacturer in California within two years of Ms. Mace’s death.
During the course of that litigation, Mr. Mace discovered that the Mylan defendants were the
actual manufacturers and distributors of the fentanyl patch worn by Ms. Mace. Accordingly,
by the time Mr. Mace initiated this suit in West Virginia against the Mylan defendants, more
than two years had passed after Ms. Mace’s death. If given the opportunity, Mr. Mace
intends to argue that West Virginia’s discovery rule tolled the running of the statute of
limitations in this case.
On July 22, 2008, the Mylan defendants filed a motion to dismiss based on the
doctrine of forum non conveniens, which is codified in West Virginia Code § 56-1-1a. They
argued that North Carolina is the appropriate forum in which to litigate the case because Ms.
Mace was a resident of North Carolina, she was prescribed and used the Mylan patch in
North Carolina, and she died in North Carolina. The Mylan defendants further asserted that
the Mylan patch was manufactured at a production facility in St. Albans, Vermont, and was
shipped from Vermont to North Carolina. Accordingly, the Mylan defendants argued that
3
the cause of action arose in North Carolina and the suit’s only connection to West Virginia
is that two of the Mylan defendants are incorporated under West Virginia law, and one has
its corporate headquarters in the state. Thus, the Mylan defendants argued that North
Carolina is a more convenient forum.
Mr. Mace opposed the Mylan defendants’ motion, arguing that none of the
Mylan defendants’ employees reside in North Carolina and that he would make the relevant
North Carolina fact witnesses available to the Mylan defendants in West Virginia for
depositions. Mr. Mace further asserted that, although North Carolina and West Virginia both
have two-year statutes of limitations for wrongful death claims, only West Virginia permits
tolling the statute of limitations based on the discovery rule. Accordingly, Mr. Mace asserted
that he would not be able to pursue the wrongful death claim in North Carolina unless the
Mylan defendants waived their statute of limitations defense in that state. He argued that,
without such a waiver, North Carolina is not available as an alternate forum in which the
claims could be tried.
On December 16, 2008, the circuit court entered an order dismissing the case
on the basis of forum non conveniens. Among other things, the circuit court concluded that
“the Plaintiff resides in North Carolina and the decedent was a resident of North Carolina.
The Mylan patch was used by the decedent[] while [she was] living in . . . North Carolina.
4
Therefore, an alternate forum exists in which to bring [this] action[].” The circuit court
further noted, however, that
[t]he Defendants submit that they will consent to and will not
contest personal jurisdiction in . . . North Carolina. This is
especially important . . . as North Carolina does not recognize
the discovery rule in wrongful death actions and the case is
already barred under the two-year statute of limitations.
Accordingly, the circuit court dismissed the action on the basis of forum non conveniens,
with the caveat that the Mylan defendants would consent to personal jurisdiction in North
Carolina and waive their statute of limitations defense in that state.
On February 17, 2009, the Mylan defendants filed a motion to amend and/or
clarify the circuit court’s order arguing that, while they had agreed to waive any new statute
of limitations defense, they should not be “required to waive any statute of limitations
defense that existed at the time of the commencement of the West Virginia litigation. . . .”
The Mylan defendants asserted that the circuit court’s order did not accurately reflect the
discussion which had occurred at the oral argument on their motion. In response, on
February 19, 2009, Mr. Mace filed a motion to reinstate the case in the Circuit Court of
Monongalia County, arguing that if the circuit court amended its first order in the manner
requested by the Mylan defendants, he would not be able to pursue his claims in North
Carolina, as the statute of limitations had expired prior to the commencement of the suit in
West Virginia.
5
On June 3, 2009, the circuit court entered an order “clarifying” its original
dismissal order in the manner requested by the Mylan defendants. Specifically, it stated that
the Mylan defendants “are not required to waive any statute of limitations defense that
existed at the time of the filing of the West Virginia action.” The circuit court further noted
that it “is aware that the case may be time barred as North Carolina does not recognize the
discovery rule in wrongful death actions. However, North Carolina law would be applied
by this Court if this action were to be litigated in West Virginia.”
Thereafter, on July 20, 2009, Mr. Mace filed a motion asking the circuit court
to reconsider its June 3, 2009, order, and again requesting that it reinstate the case in West
Virginia. He argued that the circuit court erred in determining that North Carolina law would
apply because West Virginia’s discovery rule is procedural and a determination of whether
it should be applied requires a choice of law analysis.
The circuit court, on March 19, 2010, entered an order denying Mr. Mace’s
motion, and reiterating its previous findings. It added that
[t]he decisions in Bradshaw v. Soulsby, 210 W. Va. 682, 558
S.E.2d 681 (2001) and/or McKinney v. Fairchild, 199 W. Va.
718, 487 S.E.2d 913 (1997) do not require application of West
Virginia’s statute of limitations discovery rule to a wrongful
death case governed by North Carolina substantive law under
the facts of this case, and the court declines to find that West
Virginia’s discovery rule should be applied in this case.
6
It is from this order that Mr. Mace now appeals.
II. STANDARD OF REVIEW
On appeal, Mr. Mace contends that the circuit court misinterpreted West
Virginia Code § 56-1-1a by dismissing the case despite the absence of an alternate forum in
which the case may be tried.1 This Court typically reviews a circuit court’s decision on
venue, such as a dismissal on the basis of forum non conveniens, under an abuse of discretion
standard. See Syl. Pt. 3, Cannelton Indus., Inc. v. Aetna Cas. & Sur. Co. of Am., 194 W. Va.
186, 460 S.E.2d 1 (1994) (“A circuit court’s decision to invoke the doctrine of forum non
conveniens will not be reversed unless it is found that the circuit court abused its
discretion.”). Here, however, Mr. Mace does not ask this Court to review the circuit court’s
discretionary application of the forum non conveniens statute, but rather argues that the
circuit court misinterpreted the statute.2 “Where the issue on an appeal from the circuit court
is clearly a question of law or involving an interpretation of a statute, we apply a de novo
1
As a second issue, Mr. Mace contends that the circuit court erred in holding that
North Carolina law, which does not recognize the discovery rule in wrongful death actions,
would be applied to the case in West Virginia instead of West Virginia law, which applies
the discovery rule to such actions. As explained more fully herein, the Court will not address
this question and the case is remanded for further proceedings by the circuit court.
2
Mr. Mace frames the issue on appeal narrowly, arguing only that the circuit court
erred in its interpretation of the first factor for consideration under the forum non conveniens
statute. See W. Va. Code § 56-1-1a(a). Mr. Mace does not challenge the circuit court’s
discretionary findings with regard to the other seven factors. See id.
7
standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
415 (1995).
III. DISCUSSION
A. Interpretation of West Virginia Code § 56-1-1a
West Virginia Code § 56-1-1a, which codified the doctrine of forum non
conveniens,3 provides, in relevant part:
(a) In any civil action if a court of this state, upon a timely
written motion of a party, finds that in the interest of justice and
for the convenience of the parties a claim or action would be
more properly heard in a forum outside this state, the court shall
decline to exercise jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or action, or
dismiss any plaintiff: Provided, That the plaintiff’s choice of a
forum is entitled to great deference, but this preference may be
diminished when the plaintiff is a nonresident and the cause of
action did not arise in this state. In determining whether to grant
3
In 1990, this Court first adopted the common law doctrine of forum non conveniens,
permitting courts to decline to exercise jurisdiction in favor of an alternate forum outside of
the state when doing so would “promote the convenience of the witnesses and the ends of
justice.” Syl. Pt. 1, Norfolk and W. Ry. Co. v. Tsapis, 184 W. Va. 231, 400 S.E.2d 239
(1990), superseded by statute, W. Va. Code § 56-1-1a (Supp. 2010). In 2003, the Legislature
attempted to codify a version of that doctrine by amending West Virginia Code § 56-1-1, the
general venue statute, to add a provision governing the dismissal of a case in West Virginia
on the basis that the acts or omissions giving rise to the claim(s) occurred in another state.
W. Va. Code § 56-1-1(c) (2003) (repealed). After this Court invalidated that provision under
the Privileges and Immunities Clause of the United States Constitution, see Syl. Pt. 2, Morris
v. Crown Equip. Corp., 219 W. Va. 347, 633 S.E.2d 292 (2006), the Legislature, in 2007,
enacted West Virginia Code § 56-1-1a, entitled “Forum non conveniens.” It is this “new”
statute, which was amended once in 2008 on an unrelated matter, that is at issue in this
appeal.
8
a motion to stay or dismiss an action, or dismiss any plaintiff
under the doctrine of forum non conveniens, the court shall
consider:
(1) Whether an alternate forum exists in which the claim or
action may be tried;
(2) Whether maintenance of the claim or action in the courts of
this state would work a substantial injustice to the moving party;
(3) Whether the alternate forum, as a result of the submission of
the parties or otherwise, can exercise jurisdiction over all the
defendants properly joined to the plaintiff's claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the parties
and the public interest of the state predominate in favor of the
claim or action being brought in an alternate forum, which shall
include consideration of the extent to which an injury or death
resulted from acts or omissions that occurred in this state.
Factors relevant to the private interests of the parties include,
but are not limited to, the relative ease of access to sources of
proof; availability of compulsory process for attendance of
unwilling witnesses; the cost of obtaining attendance of willing
witnesses; possibility of a view of the premises, if a view would
be appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive. Factors
relevant to the public interest of the state include, but are not
limited to, the administrative difficulties flowing from court
congestion; the interest in having localized controversies
decided within the state; the avoidance of unnecessary problems
in conflict of laws, or in the application of foreign law; and the
unfairness of burdening citizens in an unrelated forum with jury
duty;
(7) Whether not granting the stay or dismissal would result in
unreasonable duplication or proliferation of litigation; and
9
(8) Whether the alternate forum provides a remedy.
...
(c) If the statute of limitations in the alternative forum expires
while the claim is pending in a court of this state, the court shall
grant a dismissal under this section only if each defendant
waives the right to assert a statute of limitation defense in the
alternative forum. . . .
Id. at § 56-1-1a(a) & (c) (emphasis added). Thus, under this statute, a court may dismiss a
case over which it has jurisdiction if it determines that “in the interest of justice and for the
convenience of the parties” the action would more properly be heard in forum outside this
state. Id. at § 56-1-1a(a). To make such determination, courts are instructed to consider
eight factors. Id. If the factors weigh in favor of dismissal, but the statute of limitations for
the claim(s) expired in the alternate forum while the claim(s) was pending in this state, a
court should only dismiss if the defendant agrees to waive the statute of limitations defense
in that alternate forum. Id. at § 56-1-1a(c).
Mr. Mace contends that, under this Court’s prior cases adopting the common
law doctrine of forum non conveniens, the existence of an alternate forum in which the claim
could be tried–the first factor for consideration under the statute–was a requirement for
dismissal, not merely one factor for consideration. He argues that, in creating West Virginia
Code § 56-1-1a, the Legislature intended to codify the common law doctrine, not change it.
Thus, he contends, in keeping with the legal principles set forth in this Court’s prior case law,
10
this Court should interpret the first factor for consideration, “[w]hether an alternate forum
exists in which the claim or action may be tried,” as prohibiting a court from dismissing a
case on the basis of forum non conveniens if no other forum exists in which the claim may
be tried.
Mr. Mace further argues that, under the prior case law, the availability of
another forum depended in part upon whether the claim or action would be barred in that
forum by a statute of limitations. He argues that in Norfolk and Western Railway Company
v. Tsapis, 184 W. Va. 231, 400 S.E.2d 239 (1990), superseded by statute, W. Va. Code § 56
1-1a (Supp. 2010), this Court specifically held that an alternate forum was not “available”
if the statute of limitations in the alternate forum would bar the claim. Thus, Mr. Mace
contends, under this Court’s prior case law, North Carolina could not be considered an
available alternate forum because the statute of limitations in North Carolina precludes him
from being able to try his claims in that forum.
The Mylan defendants argue that, in codifying the doctrine of forum non
conveniens, the Legislature modified this Court’s prior case law. They contend that the
language of the statute is plain and unambiguous and, thus, pursuant to well-established
principles of statutory interpretation, this Court must apply its plain meaning. The Mylan
defendants further assert that, pursuant to the plain language of the statute, none of the eight
11
factors is singularly determinative; rather, a court “shall” consider all eight and no one factor
is given more weight than any other. See W. Va. Code § 56-1-1a(a)(1)-(8). Moreover, the
Mylan defendants argue that the circuit court correctly found North Carolina to be an
available alternate forum. They argue that an alternate forum “exists” when the defendant
is amenable to service of process in the alternate jurisdiction, a principle previously set forth
by the United States Supreme Court. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
Because they are amenable to process in North Carolina, the Mylan defendants contend that
it “exists” as an alternate forum in this case.
1.
“‘A statutory provision which is clear and unambiguous and plainly expresses
the legislative intent will not be interpreted by the courts but will be given full force and
effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 1, State
v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997). However, “[a] statute that is ambiguous
must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693,
414 S.E.2d 454 (1992). Thus, “[a] statute is open to construction only where the language
used requires interpretation because of ambiguity which renders it susceptible of two or more
constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning.” Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d
740, 747 (1949).
12
Turning to the instant case, the language of West Virginia Code § 56-1
1a(a)(1), which directs courts to consider “[w]hether an alternate forum exists in which the
claim or action may be tried,” is “of such doubtful or obscure meaning that reasonable minds
might be uncertain or disagree as to its meaning.” Hereford, 132 W. Va. at 386, 52 S.E.2d
at 747. This factor is listed as one of eight that courts are directed to consider and there is
no indication from the plain language of the statute that it is of any more significance than
any other factor or that a finding that no alternate forum “exists” would prohibit dismissal
of the case on the basis of forum non conveniens. In other words, by listing this as merely
one of several factors for consideration, the statute seems to imply that a court could dismiss
an action on the basis of forum non conveniens even where no other forum exists “in which
the claim or action may be tried.” W. Va. Code § 56-1-1a(a)(1).
Language found elsewhere in the statute, however, weighs against such an
interpretation. Indeed, language used by the Legislature in subsections (a) & (c) of the
statute presumes that a motion for dismissal on the basis of forum non conveniens will not
be entertained unless at least two forums exist in which the case may be tried. See id. at
§§ 56-1-1a(a) & (c). Specifically, in subsection (a), a court reviewing such a motion is
required to determine whether an action “would be more properly heard in a forum outside
the state,” which plainly implies that another forum exists in which the claim could be heard.
Id. at § 56-1-1a(a). Similarly, the statute provides “[t]hat the plaintiff’s choice of forum is
13
entitled to great deference, but this preference may be diminished. . . .” Id. Here, the
discussion of the plaintiff’s “choice of forum” clearly implies that at least two forums are
available; the plaintiff would have no “choice” if only one forum existed in which the action
could be heard. Finally, subsection (c) provides that “[i]f the statute of limitations in the
alternative forum expires while the claim is pending in a court of this state, the court shall
grant a dismissal under this section only if each defendant waives the right to assert a statute
of limitation defense in the alternative forum. . . .” Id. at § 56-1-1a(c) (emphasis added).
Again, this language plainly presumes that an alternate forum exists and directs courts to
consider what implication that alternate forum’s statute of limitations will have on the case.
Thus, various phrases and words used throughout subsections (a) and (c) of West Virginia
Code § 56-1-1a imply that an alternate forum must exist in which a plaintiff’s claims could
be heard in order for a court to grant a motion to dismiss pursuant to this statute. Given this
inherent conflict within the statute, the Court finds that the language of the statute is
ambiguous in this respect and must be construed before it may be applied. See Farley, 186
W. Va. 693, 414 S.E.2d 454, Syl. Pt. 1.
2.
In construing a statute, the Court is mindful that “‘[t]he primary object . . . is
to ascertain and give effect to the intent of the Legislature.’ Syllabus point 1, Smith v. State
Workmen’s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).” Syl Pt.
14
3, Davis Memorial Hosp. v. W. Va. State Tax Comm’r, 222 W. Va. 677, 671 S.E.2d 682
(2008). “‘In ascertaining legislative intent, effect must be given to each part of the statute
and to the statute as a whole so as to accomplish the general purpose of the legislation.’ Syl.
Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d
361 (1975).” Syl. Pt. 2, White v. Wyeth, 227 W. Va. 131, 705 S.E.2d 828 (2010).
Furthermore,
[a] statute should be so read and applied as to make it accord
with the spirit, purposes and objects of the general system of law
of which it is intended to form a part; it being presumed that the
legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether
constitutional, statutory or common, and intended the statute to
harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if its terms are
consistent therewith.
Syl. Pt. 2, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002) (quoting Syl. Pt. 5, State
v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908)) (emphasis added).
As previously noted, Mr. Mace urges the Court to interpret the statute as merely
codifying this Court’s prior case law on forum non conveniens. The Mylan defendants, on
the other hand, urge the Court to interpret the relevant statutory language in a manner that
is consistent with the federal common law doctrine of forum non conveniens. As further
explained herein, however, this Court’s prior case law is, in fact, consistent with the United
States Supreme Court case law on this subject; indeed, this Court relied heavily on several
15
United States Supreme Court decisions in adopting the common law doctrine of forum non
conveniens in this state. Because the Court presumes that the Legislature was familiar with
this body of common law when it enacted the statute and that it intended to harmonize the
statute with it, see McClain, 211 W. Va. 61, 561 S.E.2d 783, Syl. Pt. 2, the Court will
consider both this state’s prior case law and the relevant federal case law in construing the
statute.
In Tsapis, this Court’s seminal case adopting the common law doctrine of
forum non conveniens, the Court explained that:
The common law principle of forum non conveniens is
applicable only if, as a threshold matter, the forum court has
jurisdiction and venue is proper under the statute. It
presupposes at least two forums in which the defendant is
amenable to process; the doctrine furnishes criteria for choice
between them.
Syl. Pt. 2, Tsapis, 184 W. Va. 231, 400 S.E.2d 239 (emphasis added). Notably, in
formulating this syllabus point, this Court mirrored the language used by the United States
Supreme Court in Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947), partially superseded
by statute, 28 U.S.C. § 1404(a) (1948),4 in which the United States Supreme Court stated:
4
In Gilbert, the United States Supreme Court recognized the federal common law
doctrine of forum non conveniens. 330 U.S. at 507. One year later, the holding in Gilbert
was partially superseded by the enactment of 28 U.S.C. § 1404(a), which governs the transfer
of federal cases within the federal system on the basis of forum non conveniens. As stated
by the Fifth Circuit Court of Appeals, however, “the doctrine of forum non conveniens, as
set out in Gilbert, remains good law so long as the possible alternative forum is a state or
16
“In all cases in which the doctrine of forum non conveniens comes into play, it presupposes
at least two forums in which the defendant is amenable to process; the doctrine furnishes
criteria for choice between them.” Id. at 506-07. Thus, this Court’s prior case law is
premised on the notion that a case will not be dismissed on the basis of forum non
conveniens unless at least one alternate forum exists, and an alternate forum is presumed to
exist if it is a forum in which “the defendant is amenable to process.” Tsapis, 184 W. Va.
231, 400 S.E.2d 239, Syl. Pt. 2.
Because the language of subsections (a) and (c) of West Virginia Code § 56-1
1a similarly presumes that at least one alternate forum exists, the Court now holds that, under
West Virginia Code § 56-1-1a (Supp. 2010), dismissal on the basis of forum non conveniens
presupposes at least two forums in which the defendant is amenable to process; the statute
furnishes criteria for choice between them. In the event that the defendant is not amenable
to process in any alternate forum, dismissal of a claim or action under this statute would
constitute error.
foreign court.” Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir. 1983).
17
As Mr. Mace contends, however, this Court, in Tsapis, further limited the
instances in which an alternate forum may be found to “exist.” Specifically, the Court
recognized that
the doctrine [of forum non conveniens] is not triggered if there
is no other available forum. Courts have recognized that
unavailability is brought about if the statute of limitations
precludes the institution of suit in another forum. E.g., Miller v.
United Technologies Corp., 40 Conn. Supp. 457, 515 A.2d 390
(1986); Harry David Zutz, Ins., Inc. v. H.M.S. Assocs., Ltd., 360
A.2d 160 (Del. Super.1976); Satkowiak v. Chesapeake & O. Ry.
Co., 106 Ill.2d 224, 88 Ill. Dec. 55, 478 N.E.2d 370 (1985);
Johnson v. G.D. Searle & Co., 314 Md. 521, 552 A.2d 29
(1989); Anderson v. Great Lake Dredge & Dock Co., 411 Mich.
619, 309 N.W.2d 539 (1981); Missouri Pac. R.R. Co. v. Tircuit,
supra; Besse v. Missouri Pac. R.R. Co., supra; Civic S. Factors
Corp. v. Bonat, 65 N.J. 329, 322 A.2d 436 (1974); Beatrice
Foods Co. v. Proctor & Schwartz, Inc., 309 Pa. Super. 351, 455
A.2d 646 (1982). See Annot., 57 A.L.R.4th 973 (1987).
Tsapis, 184 W. Va. at 236, 400 S.E.2d at 244. Thus, the Court held that, in considering the
availability of an alternate forum, it is appropriate for courts to consider the impact of that
forum’s statute of limitations. Id. at Syl. Pt. 4 (“The doctrine of forum non conveniens is not
triggered if there is no other available forum. Unavailability is brought about if the statute
of limitations precludes the institution of another suit in another forum.”).
The Mylan defendants argue that such a rule exceeds the United States
Supreme Court’s interpretation of what it means for an alternate forum to “exist.” They
contend that the only relevant question is whether they would be amenable to service of
18
process in the alternate jurisdiction. Such interpretation, however, is too narrow, even under
the United States Supreme Court case law on which the Mylan defendants purport to rely.
In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the United States Supreme
Court considered whether, as a general matter, the substantive law of the alternate forum
should be considered in determining whether to dismiss a case on the basis of forum non
conveniens. Recognizing that such consideration would almost always defeat the dismissal
of a case on the basis of forum non conveniens, the Supreme Court held that “[t]he possibility
of a change in substantive law should ordinarily not be given conclusive or even substantial
weight in the forum non conveniens inquiry.” Id. at 247. Nevertheless, it clarified that
consideration of the other forum’s law would, in rare instances, be appropriate:
We do not hold that the possibility of an unfavorable change in
law should never be a relevant consideration in a forum non
conveniens inquiry. Of course, if the remedy provided by the
alternative forum is so clearly inadequate or unsatisfactory that
it is no remedy at all, the unfavorable change in law may be
given substantial weight; the district court may conclude that
dismissal would not be in the interests of justice.
Id. at 254-55 (emphasis added). The Supreme Court further explained, in a footnote directly
following this passage:
At the outset of any forum non conveniens inquiry, the
court must determine whether there exists an alternative forum.
Ordinarily, this requirement will be satisfied when the defendant
is “amenable to process” in the other jurisdiction. In rare
circumstances, however, where the remedy offered by the other
forum is clearly unsatisfactory, the other forum may not be an
19
adequate alternative, and the initial requirement may not be
satisfied. Thus, for example, dismissal would not be appropriate
where the alternative forum does not permit litigation of the
subject matter of the dispute.
Id. at 255 n.22 (internal citations omitted). Consequently, under Piper Aircraft, the
availability of an alternate forum rests on more than simply whether a defendant is amenable
to service of process in that forum. Indeed, while a forum in which a defendant is amenable
to process generally “exists” as an alternate forum, its availability as such is eliminated in the
rare circumstance that “the remedy provided by the alternative forum is so clearly inadequate
or unsatisfactory that it is no remedy at all.” Id. at 254-55.
Returning to West Virginia Code § 56-1-1a, the Court finds that the language
of the first factor for consideration, “whether an alternate forum exists in which the claim or
action may be tried” should be interpreted in a manner that is consistent with Tsapis and
Piper Aircraft. Consequently, the Court now holds that, in considering “whether an alternate
forum exists in which the claim or action may be tried,” pursuant to West Virginia Code
§ 56-1-1a(a)(1) (Supp. 2010), an alternate forum is presumed to “exist” where the defendant
is amenable to process. Such presumption may be defeated, however, if the remedy provided
by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.
In such cases, the alternate forum ceases to “exist” for purposes of forum non conveniens,
and dismissal in favor of that forum would constitute error.
20
In considering the language of the statute as a whole, which courts are directed
to do when attempting to ascertain the underlying legislative intent, see White, 227 W. Va.
131, 705 S.E.2d 828, Syl. Pt. 2, the Court finds that this interpretation is consistent with the
overall objective of the forum non conveniens statute. The factors listed for consideration
under West Virginia Code § 56-1-1a(a), have been provided by the Legislature to assist
courts in determining whether dismissal of a claim or action on the basis of forum non
conveniens is “in the interest of justice and for the convenience of the parties.” Id.
Undeniably, the interest of justice would not be served, nor would a plaintiff be
convenienced, if an action over which a court in this state had proper jurisdiction was
dismissed in favor of an alternate jurisdiction in which the remedy provided is so clearly
inadequate or unsatisfactory that it is no remedy at all.
Turning to the facts of the instant case, the circuit court found that an
alternative forum did, in fact, “exist” under the first factor for consideration because the
Mylan defendants are amenable to process in North Carolina. In reaching this conclusion,
the circuit court gave no weight to the effect that North Carolina’s statute of limitations law,
which does not recognize the discovery rule, will have on Mr. Mace’s action. Because North
Carolina does not recognize the discovery rule, it is not a forum in which Mr. Mace can
attempt to litigate his claims. Accordingly, the remedy provided by North Carolina is so
inadequate and unsatisfactory that it is no remedy at all. Under the facts of this case,
21
therefore, North Carolina does not “exist” as an alternate forum in which Mr. Mace’s claims
may be tried and the circuit court erred in dismissing the action on the basis of forum non
conveniens.5
B. Choice of Law Question
Mr. Mace additionally contends that the circuit court erred in finding that, even
if Mr. Mace’s claims would be heard in West Virginia, the circuit court would apply North
Carolina’s law with regard to the discovery rule and the tolling of the statute of limitations.
Specifically, in its June 3, 2009, “Order regarding defendants’ motion to amend and/or
clarify,” the circuit court succinctly stated, without any further explanation:
Although an alternate forum exists in which to bring these
actions, the Court is aware that the case may be time barred as
North Carolina does not recognize the discovery rule in
wrongful death actions. However, North Carolina law would be
applied by this Court if this action were to be litigated in West
Virginia.
(Emphasis added). The circuit court reiterated this position in its March 19, 2010, “Order
Denying Plaintiff’s Motion to Reinstate,” in which it stated:
5
Nothing in this analysis is intended to imply that West Virginia’s discovery rule
should, in fact, be applied to this case, or that Mr. Mace would succeed under that law if
given the opportunity. Rather, in considering a motion under West Virginia Code § 56-1-1a,
a court should initially focus on whether an alternate forum “exists.” Whether the plaintiff’s
claims could succeed in the West Virginia forum is another matter entirely.
22
North Carolina has a two-year statute of limitations on
wrongful-death actions, NC.G.S. § 1-53(4), with no discovery
rule. Udzinski v. Lovin, 597 S.E.2d 703, 706 (N.C. 2004). The
decisions in Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d
681 (2001) and/or McKinney v. Fairchild, 199 W. Va. 718, 487
S.E.2d 913 (1997) do not require application of West Virginia’s
statute of limitations discovery rule to a wrongful death case
governed by North Carolina substantive law under the facts of
this case, and the court declines to find that West Virginia’s
discovery rule should be applied in this case.
Mr. Mace asserts that the circuit court erred in making such rulings and that West Virginia’s
discovery rule should be applied to this case. The Court, however, declines to consider this
issue in this appeal.
The circuit court’s statements on this issue cannot be viewed as final decisions
on the merits. The circuit court was asked by the Mylan defendants to dismiss the case on
the basis of forum non conveniens. No motion was ever filed with regard to choice of law
questions, nor were the parties given an opportunity to fully brief the issue. More
importantly, the circuit court’s pronouncement that it would apply North Carolina law on the
discovery rule issue was, in fact, dicta. The circuit court had already dismissed the case on
the basis of forum non conveniens when it addressed the choice of law issue for the first
time. Accordingly, this Court finds that the circuit court’s brief consideration of this question
is not a final decision on the merits of the issue which can be considered on appeal. See, e.g.,
Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 119, 492 S.E.2d 167, 178 (1997) (“Our
well-established practice has required us, on many previous occasions, to decline to
23
determine an issue raised by the parties because that issue had not been passed upon by the
circuit court.”) (citations omitted).
IV. CONCLUSION
For the reasons stated herein, the March 19, 2010, order of the Circuit Court
of Monongalia County, West Virginia, is reversed, and the case is remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
24
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