Golden et al v. Wyeth, Inc. et al
MEMORANDUM AND ORDER granting in part and denying in part 55 Motion to Compel; granting in part and denying in part 57 Motion to Compel. For the foregoing reasons, Defendants motion to apply New Jersey law to Plaintiff's substantive claims is GRANTED and Plaintiffs' motion for application of Pennsylvania law in this respect is DENIED. However, Defendant's motion for application of New Jersey law to Plaintiffs' request for punitive damages is DENIED and Plaintiffs' motion in this respect is GRANTED. So Ordered by Judge Joanna Seybert on 8/20/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ELLEN GOLDEN and STEWART GOLDEN,
MEMORANDUM & ORDER
-againstWYETH, INC. f/k/a AMERICAN HOME
PRODUCTS and WYETH PHARMACEUTICALS
f/k/a WYETH-AYERST PHARMACEUTICALS,
Howard L. Wexler, Esq.
Michael B. Sena, Esq.
Herzfeld & Rubin, P.C.
40 Wall St.
New York, NY 10005
Adam Brent Siegel, Esq.
Daniel L. Cendan, Esq.
Freshfields Bruckhaus Deringer US LLP
601 Lexington Avenue, 31st Floor
New York, NY 10022
Alan E. Rothman, Esq.
Kaye Scholer, LLP
425 Park Avenue
New York, NY 10022
Heidi Lynn Levine, Esq.
Eric M. Falkenberry, Esq.
Jennifer Ann Fuerch, Esq.
Leeanne Sara Neri, Esq.
Mamie Venita Jervis Wise, Esq.
Tiffany Lee Christian, Esq.
DLA Piper US LLP
1251 Avenue of the Americas, 27th Floor
New York, NY 10020-1104
Genevieve M. Spires, Esq.
Spring C. Potoczak, Esq.
Porzio Bromberg & Newman P.C.
100 Southgate Parkway
Morristown, NJ 07962
SEYBERT, District Judge:
Currently pending before the Court are: (1) Defendant
Wyeth Pharmaceuticals, Inc.’s (“Defendant” or “Wyeth”) motion to
compel application of New Jersey law; and (2) Plaintiffs Ellen
and Stewart Golden’s (“Plaintiffs”) motion to compel application
of Pennsylvania law.
For the following reasons, Defendant’s
motion is GRANTED IN PART and DENIED IN PART and Plaintiffs’
motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs commenced this action against Defendant in
connection with injuries Plaintiffs suffered after Mrs. Golden’s
through December 2002. (Compl. ¶ 3.)
During all relevant times,
Plaintiffs were residents of New Jersey.
(Pls.’ Br. for Penn.
corporation with its principal place of business in Pennsylvania
which designed, tested, manufactured, marketed, and distributed
(Compl. ¶ 5.)
Prempro proximately caused her to develop a malignant breast
(Compl. ¶ 9.)
Although the Complaint does not
explicitly specify many other factual allegations, the parties
agree that Mrs. Golden was prescribed Prempro by a New Jersey
physician, filled her prescriptions at a New Jersey pharmacy,
(Def.’s Br. for N.J. Law, Docket Entry 56, at 2; Pls.’ Br. for
Penn. Law at 3; Pls.’ Fact Sheet, Docket Entry 56-2, attached as
Ex. 1 to the Falkenberry Aff.)
Jersey law while Plaintiffs move for application of Pennsylvania
The Court will first address the legal standard governing
a choice-of-law analysis before turning to the specifics of the
choice-of-law rules of the state in which it sits.
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct.
1020, 85 L. Ed. 1477 (1941); Bigio v. Coca-Cola Co., 675 F.3d
163, 169 (2d Cir. 2012).
“Under New York choice-of-law rules,
‘[t]he first step in any case presenting a potential choice of
law issue is to determine whether there is an actual conflict
Lebanese Canadian Bank, SAL, 672 F.3d 155, 157 (2d Cir. 2012)
(alteration in original) (quoting Wall v. CSX Transp., Inc., 471
F.3d 410, 415 (2d Cir. 2006)).
If no actual conflict exists and
New York is one of the jurisdictions involved, the court may
simply apply New York law.
If there is a conflict, the next inquiry is whether
the claims sound in tort or contract.
See Keefus Ltd. P’ship v.
(N.D.N.Y. Aug. 23, 2007).
Where, as here, the claims sound in
tort, New York courts apply an “interest analysis” to determine
See AllGood Entm’t, Inc. v. Dileo Entm’t
& Touring, Inc., 726 F. Supp. 2d 307, 315 (S.D.N.Y. 2010).
is a “flexible approach intended to give controlling effect to
the law of the jurisdiction which, because of its relationship
or contract with the occurrence or the parties, has the greatest
concern with the specific issue raised in the litigation.”
(internal quotation marks and citation omitted).
The interest analysis distinguishes laws that regulate
conduct from those that involve loss allocation.
a plaintiff’s claims are conduct-regulating, “the law of the
regulating behavior within its borders.”
the place where the injury occurred, the place where the conduct
nationality, place of incorporation and place of business of the
parties, and the place where the relationship, if any, between
the parties is centered.”
In contrast, where a plaintiff’s
Globalnet Financial.com, Inc. v. Frank Crystal & Co., 449 F.3d
384, 384-85 (2d Cir. 2006).
Defendant’s motion, it is apparently undisputed that there is a
conflict between New York and New Jersey law and between New
Pls.’ Br. for Penn. Law at 3-4 n.1 (comparing New York, New
See In re Rezulin Prods. Liab. Litig.,
210 F.R.D. 61, 70 (S.D.N.Y. 2002) (describing the connection
should apply to Plaintiff’s claims.
Defendant argues that New
Jersey, Mrs. Golden ingested Prempro in New Jersey, and Mrs.
Golden was prescribed Prempro in New Jersey.
N.J. Law at 7.)
(Def.’s Br. for
Plaintiffs counter that Pennsylvania law should
apply because “the Prempro at issue was presumably designed,
developed, and manufactured in Pennsylvania.”
Penn. Law at 3.)
(Pls.’ Br. for
The Court agrees with Defendant that, under
New York’s choice of law analysis, New Jersey law should apply
to Plaintiff’s substantive claims.
Courts to address this issue have consistently made
clear that the location of the tort is where the plaintiff was
injured, rather than the origin of the conduct causing injury.
See Youngman v. Robert Bosch LLC, --- F. Supp. 2d ----, 2013 WL
pertinent case confirms that a tort ‘occurs’ for purposes of
Here, Mrs. Golden was prescribed Prempro,
filled her prescription, and took Prempro all in New Jersey,
each a significant fact in the Court’s choice-of-law analysis.
See Doe v. Hyland Therpeutics Div., 807 F. Supp. 1117, 1131 n.16
(S.D.N.Y. 1992) (“Where rules of product liability are involved,
we think the forum where the products are sold and consumed has
the predominant interest in implementing the rules that form the
involved.”); Devore v. Pfizer, Inc., 58 A.D.3d 138, 141, 867
jurisdiction where the alleged injuries occurred.”).
See DiBartolo v. Abbott Labs., 914 F. Supp. 2d 601, 610
(S.D.N.Y. 2012) (“Here, DiBartolo is a resident of New York, was
prescribed Humira in New York, purchased and used Humira in New
York, and suffered injury in New York.
It therefore appears
Accordingly, Defendant’s motion for application of New Jersey
law, insofar as it pertains to Plaintiffs’ underlying claims, is
GRANTED, and Plaintiffs’ motion in this regard is DENIED.
Plaintiffs further argue that, even putting aside the
(Pls.’ Br. for Penn Law at 7-8.)
Plaintiffs that, despite the application of New Jersey law to
their substantive claims, Pennsylvania law should apply to their
punitive damages. 1
The parties do not squarely address the extent to which New
York and Pennsylvania law differ in this regard. Thus, insofar
as Pennsylvania law does not conflict with New York law, the law
of the forum will apply.
doctrine of depecage, which is often applied by New York courts
. . . the rules of one legal system are applied to regulate
certain issues arising from a given transaction or occurrence,
Hutner v. Greene, 734 F.2d 896, 901 (2d Cir. 1984) (internal
quotation marks and citations omitted); see also Fed. Hous. Fin.
Agency v. Ally Fin., Inc., No. 11-CV-7010, 2012 WL 6616061, at
*5 (S.D.N.Y. Dec. 19, 2012) (“New York embraces a choice-of-law
doctrine known as dépeçage . . . .”).
Thus, although New Jersey
necessarily end the Court’s inquiry.
Furthermore, punitive damages, like Plaintiffs’ claims
2010) (“It is well-established in this Circuit that punitive
damages are conduct-regulating issues.”); Saxe v. Thompson Med.
Co., No. 83-CV-8290, 1987 WL 7362, at *1 (S.D.N.Y. Feb. 20,
Plaintiffs’ underlying claims.
Punitive damages are designed to
punish the defendant, and not to compensate the plaintiff, thus
necessitating a defendant-focused inquiry.
See, e.g., Dobelle
little relevance since punitive damages are designed to punish a
defendant, not to compensate a plaintiff.”); see also James v.
Powell, 19 N.Y.2d 249, 259, 279 N.Y.S.2d 10, 18, 225 N.E.2d 741,
compensatory damages is determined by the same law under which
the cause of action arises . . . [a]n award of punitive damages,
on the other hand, depends upon the object or purpose of the
wrongdoing’” (emphasis in original)).
Particularly instructive on this point is Deutsch v.
Novartis Pharms. Corp., 723 F. Supp. 2d 521 (E.D.N.Y. 2010).
There, although the parties agreed that New York law applied to
the plaintiff’s substantive cause of action, the Court held that
the law of New Jersey, where the defendant was located, should
apply to the issue of punitive damages.
Id. at 524-26.
Court found that the plaintiffs’ “complaints reflect that their
Id. at 525.
Similarly here, Plaintiffs raise allegations such as
that Defendant inadequately reported testing and clinical trial
results (Compl. ¶ 24) and that Defendant omitted or concealed
information concerning the connection between the drugs at issue
Defendant’s attempts to distinguish Deutsch
essentially the same types of allegations and considerations.
Pennsylvania’s policy on punitive damages focuses in part on
protecting its residents, see Kelly v. Ford Motor Co., 933 F.
Supp. 465, 471 (E.D. Pa. 1996), “[i]n Pennsylvania, the purpose
of punitive damages is to punish a tortfeasor for outrageous
conduct,” Bryant v. Wyeth, 879 F. Supp. 2d 1214, 1225 (W.D.
Thus, the Court finds that with respect to punitive damages,
Pennsylvania has the greatest interest in application of its
Pennsylvania law for their punitive damages, if any, is GRANTED,
and Defendant’s motion for application of New Jersey law in this
respect is DENIED.
For the foregoing reasons, Defendant’s motion to apply
New Jersey law to Plaintiff’s substantive claims is GRANTED and
Plaintiffs’ motion for application of Pennsylvania law in this
respect is DENIED.
However, Defendant’s motion for application
of New Jersey law to Plaintiffs’ request for punitive damages is
DENIED and Plaintiffs’ motion in this respect is GRANTED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
August 20, 2013
Central Islip, NY
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