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)

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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, 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

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