Response to Defendants’ Motion for Order Determining Choice of Law

Jane Doe v. Alza

Description: This brief was filed in California state court in response to a motion filed by the defendants in a fentanyl pain patch case seeking application of Pennsylvania law. The defendants argued that Pennsylvania law should apply because the case involved the death of a Pennsylvania resident that occurred in Pennsylvania allegedly as a result of the patient’s use of a fentanyl pain patch prescribed, purchased and used in Pennsylvania. Plaintiff responded that the defendant that manufactured the patch had its principal place of business in California and actually designed and manufactured the patch in California. Plaintiff argued that California – not Pennsylvania – had the predominant interest in applying its own laws in order to deter wrongful conduct within its borders. The court agreed and denied the defendants’ motion. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE
JANE DOE and JOHN DOE,Plaintiffs,v.ALZA CORPORATION; SANDOZ, INC. SANDOZ and DOES 1-100,

Defendants.

Case No. 30-2008-00116806PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR ORDER DETERMINING CHOICE OF LAW ISSUEDate: January 8, 2010Time: 11:00 a.m.

Dept.: C32

COMES NOW Jane Doe and John Doe, Plaintiffs, and hereby file this Response to Defendants’ Motion for Order Determining Choice of Law.

PRELIMINARY STATEMENT

This is an action for wrongful death of the decedent, Jane Doe II, who died on January 13, 2007 as a result of using a defective 50 mcg/hour Sandoz fentanyl patch. Jane Doe II autopsy revealed that the concentration of fentanyl in her blood was excessive and that she died from fentanyl toxicity.

Defendants have filed a motion seeking to apply Pennsylvania law to this dispute. For the reasons set forth below, Defendants’ motion should be denied and the Court should apply California law to this California lawsuit against a California defendant that designed, manufactured and marketed in California the defective fentanyl patch that killed decedent.

 

ARGUMENT & AUTHORITIES

A. Legal Standard

When faced with a choice of law issue, California courts will generally apply California law – the law of the location where the case is filed. Hurtado v. Superior Court, 11 Cal.3d 574, 581 (1974). Even if a party requests that a law of a foreign state be applied and properly notifies the court, under California’s approach, California law will be applied unless there is a true and material conflict with the foreign law. Sommer v. Graber, 40 Cal. App. 4th 1455 (1994). Under the governmental interest analysis mandated by California law, therefore, a court undertaking a choice of law analysis is first required to determine whether the relevant law in California and Pennsylvania is the same or different. Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107 (2006).

Here, Defendants have identified differences between the states’ respective strict liability and breach of warranty laws and similarities between their negligence and negligent misrepresentation laws. With respect to the former, Defendants argue that Pennsylvania’s product liability and breach of warranty laws with respect to prescription drugs are narrower and less favorable to injured plaintiffs. Motion at pp. 2-4. For purposes of this Response only, Plaintiffs will accept that there are differences between the states’ strict liability and breach of warranty laws.

When faced with conflict of law issues, California’s general preference is to apply its own law. Strassberg v. New England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th Cir. 1978). If the interests of the foreign state will not be significantly furthered by applying its law over California law, then California law should apply. Hurtado, supra, 11 Cal.3d at 580. If the other state’s interests would be furthered by the application of its sown law, then the Court must undertake a “comparative impairment analysis” by comparing the nature and strength of each state’s interest in the application of its own law to determine “which state’s interest would be more impaired if its policy were subordinated to the policy of the other state.” Kearney, 39 Cal. 4th at 108; Bernhard v. Harrah’s Club, 16 Cal. 3d 313, 320 (1976).

 

B. California has a strong interest in applying its product liability law to this dispute involving a defective product designed, manufactured and distributed in California by a California corporation with its principal place of business in California.

 

Defendants assert that California has “no interest” in applying its product liability and breach of warranty law to a plaintiff who was a resident of Pennsylvania. Under such an “analysis,” California law would seemingly never apply to the personal injury claims of a non-resident killed or injured in their home state. But this is clearly not the law in California for the simple reason that California courts do not examine choice of law issues solely from the perspective of the injured victim. Rather, they typically also assess the interests of the defendant as well as the broader interests of the State of California. See, e.g., Hurtado, supra, 11 Cal.3d at 583-584 (“[T]he creation of wrongful death actions is not concerned solely with plaintiffs. As to defendants, the state interest in creating wrongful death actions is to deter [the] kind of conduct within its borders which wrongfully takes life.”). For this reason, set forth more fully below, California has a paramount interest in applying its law to a dispute involving a defective product designed, manufactured and distributed in California by a California corporation.

As numerous California courts have recognized, “California has an important interest in regulating products manufactured in California.” Corrigan v. Bjork Shiley Corp., 182 Cal. App. 3d 166, 180 (1986). As the California Supreme Court explained:

It is manifest that one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life. It is also abundantly clear that a cause of action for wrongful death without any limitation as to the amount of recoverable damages strengthens the deterrent aspect of the civil sanction . . . .

Hurtado, supra, 11 Cal. 3d at 584; see also Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 132 (1972) (“[Public] policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.”). Not only was the defective fentanyl patch at issue in this case manufactured in California, it was manufactured by a California corporation having its principal place of business in the state, providing California with an even greater interest in applying its own laws to this dispute. See, e.g., Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 614 (1987) (recognizing “California’s interest in deterring fraudulent conduct by businesses headquartered within its borders and protecting consumers from fraudulent misrepresentations emanating from California”); Kasel v. Remington Arms Co., Inc., 24 Cal. App. 3d 711, 734 (Cal. App. 1972) (“Mexico would have an interest in regulating its manufacturers in order to insure the safety of its citizens”). Where, as here, the tortious and wrongful conduct occurred in California, the state has an overriding interest in allowing full compensation to the injured plaintiff through the application of its liberal product liability laws. See, e.g., In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 742 (C.D. Cal. 1975) (“”[When] the defendant is a resident of California and the tortious conduct giving rise to the wrongful death action occurs here, California’s deterrent policy of full compensation is clearly advanced by application of its own law.”).

In Ryan v. Clark Equipment, an Oregon plaintiff was injured in Oregon by an allegedly defective front-end loader manufactured in Michigan by a Michigan corporation that did business in California. The issue was whether to apply an Oregon statute limiting damages or Michigan law recognizing no such limitations. There was no issue regarding which state’s product liability law to apply. To the extent Defendants claim that Ryan properly held that Michigan had no interest in extending its laws to Oregon residents, they are simply wrong. As the California Supreme Court explained in Hurtado:

In Ryan, the allegedly tortious conduct was in the manufacture of the loader which had been accomplished in Michigan by a corporation incorporated in that state. Michigan had an interest in applying its rule of compensation without limitation as to amount to all who committed tortious conduct within that state, but particularly to resident defendants, in order to deter such conduct.

. . . . insofar as the defendant was a Michigan corporation and allegedly committed tortious conduct in Michigan, that state had an interest in subjecting the defendant to unlimited liability in order to deter such conduct.

Hurtado, supra, 11 Cal. 3d at 585. The foregoing statements clearly establish that California has a substantial interest in applying its product liability law to a California corporation that designed, manufactured and distributed the defective product in California. See also Reich v. Purcell, 67 Cal. 2d 551, 556 (1967) (recognizing that Missouri, the state where the wrongful conduct occurred, was “concerned with conduct within her borders and as to such conduct she has the predominant interest of the states involved.”).

C. Pennsylvania has no interest in applying its product liability law to this dispute involving a defective product designed, manufactured and distributed in California by a California corporation with its principal place of business in California.

 

In the case of Browne v. McDonnell Douglas Corp., 504 F. Supp. 514 (N.D. Cal. 1980), the court held that a foreign jurisdiction had no interest in restricting the rights of its citizens to recover against a California defendant. In that case, the families of victims from England, Germany, Australia and Turkey filed suit in California over a mid-air collision in Yugoslavia between a DC-9 manufactured by McDonnell Douglas and owned by a Yugoslavian airline and another plane owned and operated by British Airways. Plaintiffs argued that California law applied while Defendants argued that Yugoslavian law applied. The court began its choice of law analysis by noting that the relevant governmental interests to examine were: 1) compensation of survivors; 2) deterrence of wrongful conduct; and 3) limitation upon the damages recoverable. Browne, supra, 504 F. Supp. at 517. Turning to the issue of deterrence the court noted that wrongful conduct allegedly took place in two jurisdictions, California, where McDonnell Douglas was alleged to have defectively designed the cockpit of the DC-9, and Yugoslavia, where the air traffic controller negligently failed to alert the planes to a potential collision. Despite the allegations of negligence occurring in Yugoslavia and the foreign status of the plaintiffs, as to the issue of which state’s product liability law to apply – the very issue currently before this Court — the court in Browne held that “no compelling reason warrants displacing the products liability law of California for the allegedly faulty design of the DC-9 by a California manufacturer in Long Beach, California” because “[n]o other jurisdiction has been shown to have an interest which would be impaired if its law were not applied on this issue.” Id.

Similarly, in Hurtado, the California Supreme Court, discussing the holding in Ryan v. Clark Equipment, rejected the notion that “the state of [a] plaintiff’s residence has an overriding interest in denying their own residents unlimited recovery” and concluded that “Oregon’s interest in limiting the amount of recovery, as opposed to providing some recovery, is directed at resident defendants, not resident plaintiffs.” Hurtado, supra, 11 Cal. 3d at 586. In the case of In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 746 (C.D. Cal. 1975), the court held that “[a]s for those countries or states where recovery would be less than by applying California law, surely they have no interest in limiting recovery of their resident plaintiffs as against a nonresident of their country or state.” Pennsylvania simply has no interest in limiting the damages recoverable by a Pennsylvania plaintiff against a California defendant.

The court in Corrigan v. Bjork Shiley Corp., 182 Cal. App. 3d 166 (Cal. App. 1986) also rejected the argument that another state would have an interest in preventing its citizens from receiving full redress against a California defendant. In that case, Australian plaintiffs injured in Australia from a defective product manufactured in California by a California corporation sued in California. In reversing the trial court’s forum non conveniens dismissal, the court of undertook a choice of law analysis and determined that California damage law would apply if the case was litigated in California:

It has been repeatedly asserted that California has an important interest in regulating products manufactured in California. While Australia has an interest in applying its law to injuries from products occurring within its borders, that interest would not be impaired by application of California law. Australia would have little interest in prohibiting a complete remedy for injury to its own citizens, whereas “when the defendant is a resident of California and the tortious conduct giving rise to the wrongful death action occurs here, California’s deterrent policy of full compensation is clearly advanced by application of its own law.” Under these circumstances, California law would be applicable if trial were held here, and the analysis of our “governmental interest” in the case argues in favor of a California forum.

Id. (emphasis added). California has a strong interest in applying its product liability law to a defective product manufactured in California by a California corporation. By contrast, Pennsylvania has no interest in applying its product liability laws to deny full recovery to one of its citizens against non-resident Defendants.

D. Because Pennsylvania has no interest in applying its product liability law to this dispute involving a defective product designed, manufactured and distributed in California by a California corporation with its principal place of business in California, the laws of California must be applied.

 

California has a strong interest in applying its wrongful death and product liability laws in order to deter wrongful conduct within its borders. This is particularly true when such conduct has been undertaken by a California corporation with its principal place of business in California. By contrast, Pennsylvania has no legitimate interest in denying recovery to a Pennsylvania resident against an out-of-state corporation. For this reason, there is no “conflict” between the two state’s laws. Where there is no conflict, a court applies the law of the forum. see also Hurtado, 11 Cal. 3d at 582 (“we hold that where as here in a California action both this state as the forum and a foreign state (or country) are potentially concerned in a question of choice of law with respect to an issue in tort and it appears that the foreign state (or country) has no interest whatsoever in having its own law applied, California as the forum should apply California law.”). Defendants’ Motion should therefore be denied, and the Court should apply California law to this California case.

E. If the Court determines that Pennsylvania has an interest in the application of its laws to this dispute, the Court should still apply California law because California’s interests would be more impaired than Pennsylvania’s interests were its law not applied.

 

As set forth above, Pennsylvania has no interest in applying its product liability laws to the instant case. If the Court concludes differently, and determines that each of the states has an interest in the application of its own law, a “true conflict” exists. The Court must then compare the nature and strength of each state’s interest in the application of its own law to determine “which state’s interest would be more impaired if its policy were subordinated to the policy of the other state.” Kearney, 39 Cal. 4th at 108; Bernhard v. Harrah’s Club, 16 Cal. 3d 313, 320 (1976).

In Hurtado, the California Supreme Court explained that there are three distinct purposes of a cause of action for wrongful death that must be considered when undertaking a choice of law analysis:

It is important, therefore to recognize the three distinct aspects of a cause of action for wrongful death: (1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable.

Hurtado, supra, 11 Cal. 3d at 584. The court explained that the first two aspects both relate to the creation of a wrongful death cause of action. Hurtado, supra, 11 Cal. 3d at 583.

In undertaking a choice of law analysis, the court held, “these three aspects of wrongful death must be carefully separated. The key step in this process is delineating the issue to be decided.” Id.; see also Kearney, supra, 39 Cal. 4th at 110 (“This discussion in Hurtado teaches the importance, in applying the governmental interest analysis, of carefully examining what might at first blush appear to be a single subject or rule of law in order to identify the distinct state interests that may underlie separate aspects of the issue in question.”).

1. The creation of a cause of action for wrongful death caused by a defective prescription drug – which state’s liability law to apply.
a. Deterrence of wrongful conduct and the regulation of products manufactured in California.

 

The court in Hurtado stated that the interest in creating a wrongful death cause of action “insofar as defendants are concerned, reflects the state’s interest in deterring conduct, said interest extending to all persons present within its borders.” Hurtado, supra, 11 Cal. 3d at 584. Here, all of the wrongful conduct occurred in California. California is where the patch was designed and manufactured. California is where the warnings were crafted. California is where the patches entered the stream of commerce. And all of these actions were taken by a California corporation with its principal place of business in California. California therefore has a strong interest in applying its product liability laws in order to regulate the manufacture of drugs within its borders and to deter wrongful conduct by California corporations. By contrast, Pennsylvania’s interest in regulating the manufacture of products or deterring the wrongful conduct of Pennsylvania corporations is simply unaffected in this case involving a California defendant who designed and manufactured a defective product in California.

California’s substantial interest in the deterrence of wrongful conduct occurring within its borders would be substantially impaired were Pennsylvania rather than California law to apply to this dispute. On the other hand, Pennsylvania’s interests would not be adversely affected. As such, the Court should apply California law. See, e.g, Castro v. budget Rent-A-Car System, Inc., 154 Cal. App. 4th 1162, 1182 (Cal App. 2007) (“Based on the respective governmental interests of Alabama and California, Alabama’s interest in allocating liability and deterring negligent driving within its borders would be more impaired by the application of California’s permissive user statute than would California’s interests if Alabama law is applied. The trial court therefore correctly ruled that Alabama’s permissive user law applied to the issue of Budget’s responsibility for Diaz’s negligence.”); Stonewall Surplus Lines Co. v. Johnson Controls, 14 Cal. App. 4th 637, 649 (Cal. App. 1993) (“In contrast, failure to apply California’s rule would severely impair California’s interests. As we have seen California’s paramount interest is in protecting its residents by deterring tortfeasors. Here, the liability imposed grew out of severe injury suffered by a California resident while he was in California and caused by manufacturing and marketing activities which occurred exclusively in this state. It is difficult to imagine circumstances where California would have a greater interest in altering the future behavior of a defendant by compelling payment directly from the defendant rather than its insurers.”); Clothesrigger, supra, 191 Cal. App. 3d at 631 (“California’s interest in deterring fraud is satisfied by maintaining the case as a class action on behalf of allegedly defrauded California residents.”).

b. Compensation for survivors.

The court in Hurtado stated that the creation of a wrongful death remedy “insofar as plaintiffs are concerned, reflects the state’s interest in providing for compensation and in determining the distribution of the proceeds, said interest extending only to local decedents and local beneficiaries.” Hurtado, 11 Cal. 3d at 584. Thus, as to this issue, Pennsylvania would seem to have the predominant interest. However, as set forth above, Defendants assert that Pennsylvania’s laws deny recovery to plaintiffs against pharmaceutical companies under theories of strict liability and breach of warranty. Defendants ignore this critical fact when they argue in their motion that “Pennsylvania has a strong interest in having its laws applied to protect its citizens.” Motion at p. 6. The only ones “protected” by the application of Pennsylvania law to this case would be the Defendants, neither of which is a resident of Pennsylvania.

The real issue therefore is whether Pennsylvania has a legitimate state interest in denying recovery to its residents when the defendant is a non-resident. As California courts have repeatedly stated, a state simply has no legitimate interest in denying recovery to its residents against a non-resident defendant. See, e.g., Hurtado, 11 Cal. 3d at 581 (“Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants.”); Villaman v. Schee, No. 92-15490, 1994 U.S. App. LEXIS 912 at *13-14 (9th Cir. 1994) (“In contrast to the strong interest a state has in seeing that its residents are fully compensated, Mexico’s policy of limiting damages “does not reflect a policy that widows and orphans should be denied full recovery.”). Pennsylvania simply cannot have any legitimate interest in denying recovery to its residents against a foreign defendant for conduct occurring out of state. As such, the Court should apply California law to this dispute.

CONCLUSION & PRAYER

WHEREFORE Plaintiff respectfully prays that the Court deny Defendants’ motion, enter an order confirming that California law applies to this dispute and grant her such other and further relief to which she may show herself to be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
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