WV Supreme Court Kicks Failure to Warn Case Under Michigan Law

By: James J. A. Mulhall

Published: January 4, 2018

The West Virginia Supreme Court of Appeals recently upheld the Mass Litigation Panel’s grant of summary judgment against a class of Plaintiffs alleging birth defects resulting from the use of prescription medicine in Michigan. Plaintiffs were comprised of nineteen minors who alleged that they sustained birth defects as a result of their respective mother’s use of a name brand antidepressant. Of import, Plaintiffs alleged that the defendant failed to warn prescribing physicians that the use of the antidepressant in pregnancy was linked to an increased risk of birth defects and that women should use contraceptives while using the antidepressant.

In addressing the potential conflict of laws, the Court stated 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’).” As all of the alleged injuries occurred in Michigan, its law applied, which statutorily forecloses a duty to warn claim if the drug was approved by the FDA and the manufacturer complied with the FDA’s labeling requirements.

The Court noted that failing to apply Michigan law, and recognizing “such a claim under West Virginia law where the same already is foreclosed in the same case by the law of another jurisdiction . . . would contradict the full faith and credit due our sister jurisdictions.” Accordingly, because Plaintiffs’ negligence and strict liability claims, under West Virginia law, were little more than failure to warn claims in disguise, which were statutorily precluded by Michigan law, Plaintiffs’ claims in toto were properly dismissed.

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