Golden et al v. Wyeth, Inc. et al

Filing 62

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
---------------------------------------X
ELLEN GOLDEN and STEWART GOLDEN,
Plaintiffs,

MEMORANDUM & ORDER
04-CV-2841(JS)(ARL)

-againstWYETH, INC. f/k/a AMERICAN HOME
PRODUCTS and WYETH PHARMACEUTICALS
f/k/a WYETH-AYERST PHARMACEUTICALS,
INC.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Howard L. Wexler, Esq.
Michael B. Sena, Esq.
Herzfeld & Rubin, P.C.
40 Wall St.
New York, NY 10005
For Defendants:

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.
BACKGROUND
Plaintiffs commenced this action against Defendant in
connection with injuries Plaintiffs suffered after Mrs. Golden’s
use

of

the

hormone

therapy

drug

Prempro

through December 2002. (Compl. ¶ 3.)

Docket

Entry

57-4,

at

3.)

January

1998

During all relevant times,

Plaintiffs were residents of New Jersey.
Law,

from

(Pls.’ Br. for Penn.

Defendant

is

a

Delaware

corporation with its principal place of business in Pennsylvania
which designed, tested, manufactured, marketed, and distributed
Prempro.

(Compl. ¶ 5.)
Plaintiffs

allege

that

Mrs.

Golden’s

ingestion

of

Prempro proximately caused her to develop a malignant breast
tumor,

which

January 2003.

required

a

mastectomy

(Compl. ¶ 9.)

of

the

right

breast

in

Although the Complaint does not
2

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,
and

took

Prempro

in

New

Jersey

during

the

relevant

period.

(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.)
I.

Choice-of-Law
Currently,

Defendant

moves

for

application

of

New

Jersey law while Plaintiffs move for application of Pennsylvania
law.

The Court will first address the legal standard governing

a choice-of-law analysis before turning to the specifics of the
parties’ arguments.
A.

Legal Standard
A

federal

court

sitting

in

diversity

applies

choice-of-law rules of the state in which it sits.

the

See Klaxon

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
between

the

laws

of

the

jurisdictions

involved.’”

Licci

v.

Lebanese Canadian Bank, SAL, 672 F.3d 155, 157 (2d Cir. 2012)
(alteration in original) (quoting Wall v. CSX Transp., Inc., 471
3

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.

See id.

If there is a conflict, the next inquiry is whether
the claims sound in tort or contract.
Fromkin

Energy,

LLC,

No.

See Keefus Ltd. P’ship v.

06-CV-0987,

(N.D.N.Y. Aug. 23, 2007).

2007

WL

2454217,

at

*3

Where, as here, the claims sound in

tort, New York courts apply an “interest analysis” to determine
choice-of-law issues.

See AllGood Entm’t, Inc. v. Dileo Entm’t

& Touring, Inc., 726 F. Supp. 2d 307, 315 (S.D.N.Y. 2010).

This

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.”

Id.

(internal quotation marks and citation omitted).
The interest analysis distinguishes laws that regulate
conduct from those that involve loss allocation.

See id.

Where

a plaintiff’s claims are conduct-regulating, “the law of the
jurisdiction
because

that

where

the

tort

jurisdiction

occurred
has

the

regulating behavior within its borders.”

will

generally

greatest
Id.

apply

interest

in

“These include

the place where the injury occurred, the place where the conduct
causing

the

injury

occurred,

the

domicile,

residence,

nationality, place of incorporation and place of business of the
4

parties, and the place where the relationship, if any, between
the parties is centered.”
claims

are

important,

Id.

loss-allocating,
and

the

In contrast, where a plaintiff’s
“the

parties'

site

of

domiciles

the

are

tort

more

is

less

important.”

Globalnet Financial.com, Inc. v. Frank Crystal & Co., 449 F.3d
384, 384-85 (2d Cir. 2006).
B.

Substantive Claims
To

begin,

the

Court

notes

that

with

respect

to

Defendant’s motion, it is apparently undisputed that there is a
conflict between New York and New Jersey law and between New
Jersey

and

Pennsylvania

law

in

all

relevant

respects.

(See

Pls.’ Br. for Penn. Law at 3-4 n.1 (comparing New York, New
Jersey,

and

Pennsylvania

disputes

that

the

causes

conduct-regulating laws.

law).)
of

Moreover,

action

neither

at

here

issue

party

implicate

See In re Rezulin Prods. Liab. Litig.,

210 F.R.D. 61, 70 (S.D.N.Y. 2002) (describing the connection
between

pharmaceutical

product

liability

claims

and

conduct-

regulating laws).
What

is

in

dispute,

however,

should apply to Plaintiff’s claims.
Jersey

law

should

apply

because

is

what

state’s

laws

Defendant argues that New
Plaintiffs

resided

in

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
5

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
527269,

at

*5

(E.D.N.Y.

Feb.

11,

2013)

(“Virtually

every

pertinent case confirms that a tort ‘occurs’ for purposes of
choice-of-law

analysis

(collecting cases)).

at

the

location

of

the

accident.”

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
basis

for

the

‘reasonable

expectation

of

the

parties’

involved.”); Devore v. Pfizer, Inc., 58 A.D.3d 138, 141, 867
N.Y.S.2d

425

significant
plaintiffs

(1st

Dep’t

contacts
live

and

with
work

2008)
the
there,
6

(“Michigan
litigation.
but

in

has

far
Not

addition,

greater
only

it

do

is

the

jurisdiction where the alleged injuries occurred.”).
Thus,
favor

of

claims.

in

combination,

applying

New

these

Jersey

law

facts

to

clearly

Plaintiffs’

weigh

in

underlying

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.
that

New

York

has

the

strongest

It therefore appears

interest

in

this

case.”).

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.
C.

Punitive Damages
Plaintiffs further argue that, even putting aside the

applicable
should

apply

damages.
that
Reply

law

regarding

their

Pennsylvania

law

substantive
to

their

request

(Pls.’ Br. for Penn Law at 7-8.)

Plaintiffs
Br.,

are

Docket

inappropriately

Entry

58,

at

6.)

claims,

forum
The

for

the

Court

punitive

Defendant maintains
shopping.
Court

(Def.’s

agrees

with

Plaintiffs that, despite the application of New Jersey law to
their substantive claims, Pennsylvania law should apply to their
punitive damages. 1

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.
7

Preliminarily,

the

Court

notes

that

“under

the

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,
while

those

of

another

system

regulate

the

other

issues.”

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 . . . .”).
law

governs

Plaintiffs’

Thus, although New Jersey

substantive

claims,

this

does

not

necessarily end the Court’s inquiry.
Furthermore, punitive damages, like Plaintiffs’ claims
discussed
Novartis

above,
Pharms.,

are

conduct-regulating.

Corp.,

723

F.

Supp.

2d

See
521,

Deutsch

524

v.

(E.D.N.Y.

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,
1987)

(“[P]unitive

regulating
respect

to

rather

damage
than

punitive

awards

are

essentially

loss-allocating.”).

damages,

Plaintiffs’ underlying claims.

however,

The

differs

conduct-

inquiry

with

somewhat

from

Punitive damages are designed to

punish the defendant, and not to compensate the plaintiff, thus
necessitating a defendant-focused inquiry.
8

See, e.g., Dobelle

v.

Nat’l

R.R.

Corp.,

628

1986)

(S.D.N.Y.

Passenger
(“[T]he

interest

of

F.

Supp.

1518,

plaintiff’s

1528-29

domicile

has

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,
746-47

(1967)

(“Although

it

is

clear

that

the

measure

of

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.

The

Court found that the plaintiffs’ “complaints reflect that their
requests

for

punitive

corporate misconduct.”

damages

stem

from

Novartis’s

alleged

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
(Compl.

¶

from
32(g)).

the

Food
See

and

Drug

Deutsch,
9

723

Administration
F.

Supp.

2d

(“FDA”)
at

525

(discussing
concealed

the

plaintiffs’

information

from

allegations
the

FDA

that

and

the

failed

defendant

to

disclose

information concerning the connection between the drugs at issue
and osteonecrosis).

Defendant’s attempts to distinguish Deutsch

from

case

the

instant

are

unavailing,

as

both

involve

essentially the same types of allegations and considerations.
In

fact,

and

while

Defendant

is

correct

in

that

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

and

to

deter

him

or

others

like

him

from

similar

conduct,” Bryant v. Wyeth, 879 F. Supp. 2d 1214, 1225 (W.D.
Wash.

2012)

(internal

quotation

marks

and

citation

omitted).

Thus, the Court finds that with respect to punitive damages,
Pennsylvania has the greatest interest in application of its
laws.
Accordingly,
Pennsylvania

law,

Plaintiffs’

insofar

as

motion
it

for

seeks

application
application

of
of

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.
CONCLUSION
For the foregoing reasons, Defendant’s motion to apply
10

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.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August 20, 2013
Central Islip, NY

11