Response to Defendants’ Motion for Order Determining Choice of Law

Meeusen 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 Michigan law, which would have eliminated plaintiff’s claims. The defendants argued that Michigan law should apply because the case involved the death of a Michigan resident that occurred in Michigan allegedly as a result of the patient’s use of a fentanyl pain patch prescribed, purchased and used in Michigan. 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 Michigan – 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
APRIL MEEUSEN,Plaintiff,v.

ALZA CORPORATION; SANDOZ, INC. and DOES 1-100,

Defendants.

Case No. 30-2009-00116913PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR ORDER DETERMINING CHOICE OF LAW ISSUEDate: January 8, 2010

Time: 11:00 a.m.

Dept.: C32

COMES NOW April Meeusen, Plaintiff, and hereby files this Response to Defendants’ Motion for Order Determining Choice of Law.

PRELIMINARY STATEMENT

This is an action for wrongful death of the decedent, Terrance Meeusen, who died on January 13, 2007 as a result of using a defective 75 mcg/hour Sandoz fentanyl patch. Mr. Meeusen’s autopsy revealed that the concentration of fentanyl in his blood was excessive and that he died from fentanyl toxicity.

Defendants have filed a motion seeking to apply Michigan law to this dispute. This is Defendants’ second bite at the apple as far as this issue is concerned. They previously filed a motion to dismiss or stay for forum non conveniens, claiming that Michigan was a more convenient forum. After hearing oral argument, the court denied the motion. Now, in another attempt to deprive Plaintiff of her claim, Defendants argue that Michigan law should apply despite the Court’s decision to maintain jurisdiction. 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). 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.

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.

 

Under the governmental interest analysis mandated by California law, a court undertaking a choice of law analysis is first required to determine whether the relevant law in California and Michigan is the same or different. Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107 (2006). Here, Defendants have identified a Michigan law essentially barring all product liability claims against a pharmaceutical manufacturer whose product was approved by the FDA. California has no similar ban. Defendants also cite another Michigan law limiting noneconomic damages in wrongful death cases based on product liability to $500,000. Again, there is no similar restriction under California law. There is therefore a clear difference between the laws of Michigan and the laws of California.

The next step of a choice of law analysis requires the Court to determine whether a true conflict exists by analyzing the interests each state has in the application of its own law to this dispute. Kearney, 39 Cal. 4th at 108. If each of the subject states has an interest in the application of its own law, a “true conflict” exists and 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).

Defendants assert that California has “no interest” in applying its product liability law to a plaintiff who was a resident of Michigan. 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”).

Although Defendants cite several cases in their motion in support of the notion that California has “no interest” in the application of its law to this dispute, those cases are inapposite and inapplicable to the facts of this case. The first case cited by Defendants, Reich v. Purcell, 67 Cal. 2d 551 (1967), involved a car accident in Missouri between a California resident and an Ohio resident. That case “related to the damages that the plaintiffs could recover in their wrongful death action.” Kearney, supra, 39 Cal. 4th at 110. Reich involved no fundamental issue regarding liability as is involved here. Moreover, while the court in Reich concluded that California had no interest in applying California law to the issue of damages, in Reich, the Court lacked any interest in deterring wrongful conduct because the wrongful conduct did not occur in California (the case involved a car accident in Missouri). By contrast, 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. 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.”); Hurtado, supra, 11 Cal. 3d at 584 (“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.”).

Howe v. Diversified Buyers, another case cited by Defendants, also involved issues relating solely to damages. Moreover, in Howe, the issue was the availability of damages to a Nevada plaintiff injured in Nevada as a result of conduct occurring solely in Nevada. There was no wrongful conduct in California as there is here.

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.”).

Finally, Hernandez v. Burger, 102 Cal. App. 3d 795 (Cal. App. 1980) also involved a question of damages rather than liability. In fact, in that case, liability was admitted. Id. at 797. Moreover, like the other cases cited by Defendants, that case also involved wrongful conduct occurring solely outside of California (a car wreck in Mexico). That fact formed the basis of the court’s decision to apply Mexican damages law: “the accident occurred in Mexico, and California has no legitimate interest in the possible deterrent effect of its unlimited recovery rule on conduct in Mexico.” Id. at 799.

Unlike the cases cited by Defendants, the primary issue in this case is which state’s substantive product liability law to apply. Moreover, unlike the cases Defendants rely on, the instant case involves wrongs committed in California by a California corporation. Under these facts, California clearly has a substantial interest in applying its product liability law to this case against a California corporation based on the design, manufacture and distribution in California of a defective drug.

 

C. California’s interests would be more impaired than Michigan’s interests by the application of another state’s laws 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 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. The last aspect relates solely to the issue of damages.

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.”). In other words, “the objective of proper choice of law in conflict cases [is] to determine the law that most appropriately applies to the issue involved.” Reich, supra, 67 Cal. 2d at 555.

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.

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’s substantial interest in the deterrence of wrongful conduct occurring within its borders would be substantially impaired were Michigan rather than California law to apply to this dispute. 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.”). Defendants’ motion seeking the application of Michigan law should be denied.

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, Michigan would seem to have the predominant interest. However, as set forth above, Michigan’s laws deny any recovery to plaintiffs against pharmaceutical companies when the defective drug was approved by the FDA. Thus, the issue is whether Michigan 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.”). Michigan simply cannot have any legitimate interest in denying recovery to its residents against a foreign defendant for conduct occurring out of state.

  1. c. Because there is no true conflict, California’s law 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, Michigan has no legitimate interest in denying recovery to a Michigan resident against an out-of-state corporation. For this reason, there is no “conflict” between the two state’s laws, and California law should apply.

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.; 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.”). The Court should therefore apply California law to this case.

d. Resolving a hypothetical conflict.

As set forth above, there is no conflict between the product liability laws of California and Michigan because Michigan has no legitimate interest in denying its resident plaintiffs a recovery against a non-resident defendant. Where there is no conflict, a court applies the law of the forum.

Defendants, however, argue that Michigan has an interest in denying its residents recovery because its pharmaceutical shield law is designed to promote the availability and affordability of prescription drugs to its residents. Putting aside the dubious connection between these goals and an outright ban on pharmaceutical product liability claims, Plaintiff will assume for the sake of argument that Michigan has a legitimate interest in the application of its laws. Assuming such an interest, and a conflict between Michigan and California law, a court undertaking a choice of law analysis “carefully evaluates and compares the nature and strength of the interest of each jurisdiction 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’ and then ultimately applies ‘the law of the state whose interest would be the more impaired if its law were not applied.’” Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 108 (2006).

In applying this impairment analysis, a California court should examine the history, purpose and acceptance of the various states’ laws. Washington Mutual Bank v. Superior Court, 24 Cal. 4th 906, 920 (2001) (“In making this comparative impairment analysis, the trial court must determine ‘the relative commitment of the respective states to the laws involved’ and consider ‘the history and current status of the states’ laws’ and ‘the function and purpose of those laws.’”); Offshore Rental Co., Inc. v. Continental Oil Co., 22 Cal. 3d 157, 166 (1978) (“the comparative impairment approach to the resolution of true conflicts attempts to determine the relative commitment of the respective states to the laws involved. The approach incorporates several factors for consideration: the history and current status of the states’ laws; the function and purpose of those laws.”). For example, the Court should note the fact that California was the first state to recognize strict product liability, doing so in 1963 in the case of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62-63 (1963) (“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . . [The] liability is not one governed by the law of contract warranties but by the law of strict liability in tort.”); Jiminez v. Superior Court, 29 Cal. 4th 473, 477 (2002) (“Two decades later, in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, this court embraced Justice Traynor’s view, and California became the first state to allow recovery for strict products liability.”). California courts have applied the theory of strict product liability to drugs since at least the late 1960s. See, e.g., Toole v. Richardson-Merrell, Inc., 251 Cal. App. 2d 689, 710 (Cal. App.; 1967) (“where the facts disclose that the drug has not been properly or has been placed upon the market and sold without adequate and proper warning, strict liability for resulting injury may be found.”); Grinnell v. Charles Pfizer & Co., 274 Cal. App. 2d 424 (Cal. App. 1969) (applying strict liability to polio vaccine). Thus, California has recognized the precise claim brought by Plaintiffs herein for more than forty-six years. In so doing, California has been at the forefront of the development of product liability law.

Michigan, by contrast, barred product liability claims against pharmaceutical companies only in 1996, by passing a statute critics claimed was intended solely to aid Michigan corporation Dow Chemical. Mich. Comp. Laws Ann. § 600.2946(5) (1996). Michigan stands alone outside the mainstream of jurisprudence as the only state in the union that bars product liability claims against pharmaceutical companies. Jonathon V. O’Steen & Van O’Steen, The FDA Defense: Vioxx and the Argument Against Federal Preemption of State Claims for Injuries Resulting from Defective Drugs, 48 Ariz. L. Rev. 67, 91 (2006). Michigan’s law also conflicts with the U.S. Supreme Court’s recent decision in Wyeth v. Levine, 129 S. Ct. 1187 (2009) rejecting preemption based on FDA approval. Finally, Michigan’s law is under attack from within its own borders; in March 2009, the Michigan House of Representatives passed a bill repealing the pharmaceutical shield law. Michigan H.B. 4316 (2009). The Michigan Senate has not yet taken up the bill.

In conducting its comparative impairment analysis, the Court should consider the long history of the application of strict liability to drugs in California and the relatively short history of Michigan’s pharmaceutical shield law. It should also consider the fact that Michigan’s law has been repealed by the Michigan House of Representatives and appears insupportable in light of Wyeth v. Levine. Washington Mutual Ban, supra, 24 Cal. 4th at 920 (“In making this comparative impairment analysis, the trial court must . . . consider ‘the history and current status of the states’ laws.’”). It should consider the fact that Michigan is well outside the mainstream in completely exempting drug companies from liability for defective products while California’s laws reflect the jurisprudence of every other state in the union. Offshore Rental, supra, 22 Cal. 3d at 165 (“If one of the competing laws is archaic and isolated in the context of the laws of the federal union, it may not unreasonably have to yield to the more prevalent and progressive law, other factors of choice being roughly equal.”). Finally, the Court should consider the fact that the application of California laws in this case will serve the specific purpose of deterring wrongful conduct by California corporations while the application of Michigan’s shield law would, at most, serve some vague, amorphous goal of promoting new medicines and controlling the costs of prescription drugs, a goal having nothing to do with the application of the state’s law to the specific non-resident defendants herein. In light of the foregoing, to the extent the Court finds a true conflict, it is clear that the interests of California in the application of its laws to conduct carried out within its borders by a California corporation would be more impaired than Michigan’s antiquated, isolated and likely unconstitutional interest in protecting drug companies from liability.

2. The interest in the limitation, or lack thereof, of damages – which state’s damage law to apply.

 

Michigan law places an arbitrary $500,000 cap on noneconomic damages in product liability wrongful death claims. California has no such cap. The issue is which state’s law relating to the limitation, or lack thereof, on damages should apply.

As set forth above, the California Supreme Court in Hurtado stated that this interest, “insofar as defendants are concerned, reflects the state’s interest in protecting resident defendants from excessive financial burdens.” Hurtado, 11 Cal. 3d at 584 (emphasis added). Here, Defendant Alza is a California corporation with its principal place of business in California. It designed, developed, manufactured and marketed the defective fentanyl patch in California. California has an interest in applying its full measure of damages to the conduct of this in-state defendant in order to maximize the deterrent effect of its wrongful death and product liability laws:

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: “the sting of unlimited recovery . . . more effectively [penalizes] the culpable defendant and [deters] it and others similarly situated from such future conduct.” Therefore 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.

Hurtado, supra, 11 Cal. 3d 574.

By contrast, none of the defendants are Michigan corporations and none have their principal place of business in Michigan. For this reason, Michigan has no interest in applying its damage limitations in the instant case. 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.” Michigan simply has no interest in limiting the damages recoverable by a Michigan plaintiff against a California defendant.

In Hurtado, the plaintiffs in the wrongful death action were residents of Mexico, but the accident that resulted in the decedent’s death occurred in California, each of the defendant drivers was a California driver, and all the vehicles were registered in California. The issue was which jurisdiction’s law should determine the amount of damages recoverable by the plaintiffs. Whereas Mexico limited the amount survivors could recover in a wrongful death action, California placed no dollar limit on the damages that could be recovered. In conducting a comparative impairment analysis, the court found that Mexico had no interest in having its law applied, explaining that “[t]he interest of a state in a tort rule limiting damages for wrongful death is to protect defendants from excessive financial burdens or exaggerated claims” and that this interest was “primarily local,” that is, it is intended to protect resident defendants. Hurtado, supra, 11 Cal. 3d at 4th 580-81. Because Mexico had no interest in applying restrictive damage laws to claims against non-resident defendants, the Court held that California law, the law of the forum, applied:

Since it is the plaintiffs and not the defendants who are the Mexican residents in this case, Mexico has no interest in applying its limitation of damages — Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants.

Hurtado, supra, 11 Cal. 3d at 581, 582.

The court in Corrigan v. Bjork Shiley Corp., 182 Cal. App. 3d 166 (Cal. App. 1986) similarly 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.

Defendants respond to these arguments by claiming that California has no interest in providing a greater recovery to a Michigan resident than they could have under Michigan law. Motion at p. 6. But this argument was expressly rejected by the California Supreme Court in Hurtado. In that case, the court stated:

Defendant’s final contention is that California has no interest in extending to out-of-state residents greater rights than are afforded by the state of residence . . . . Defendant urges seemingly as an absolute choice of law principle that plaintiffs in wrongful death actions are not entitled to recover more than they would have recovered under the law of the state of their residence. In effect defendant argues that the state of plaintiffs’ residence has an overriding interest in denying their own residents unlimited recovery.

Limitations of damages express no such state interest. A policy of limiting recovery in wrongful death actions “does not reflect a preference that widows and orphans should be denied full recovery.”

Because Mexico has no interest in applying its limitation of damages in wrongful death actions to nonresident defendants or in denying full recovery to its resident plaintiffs, the trial court both as the forum, and as an interested state, correctly looked to its own law.

Hurtado, 11 Cal. 3ed at 586-87; see also Clothesrigger, Inc. v. GTE Corp., 191 Cal.App.3d 605, 616 (1987) (“[T]he [lower] court simply erred in stating California has no interest in providing nonresident plaintiffs greater protection than their home states provide. California’s more favorable laws may properly apply to benefit nonresident plaintiffs.”).

California has a strong interest in allowing unlimited recovery in order to strengthen the deterrent effect of its laws on the in-state conduct of an in-state defendant. Michigan has no interest in denying full recovery to a Michigan resident against an out-of-state corporation. For this reason, there is no “conflict” between the two state’s laws. See, e.g., Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 166 (1978) (“Only if each of the states involved has a ‘legitimate but conflicting interest in applying its own law’ will we be confronted with a ‘true’ conflicts case.”). Under such circumstances, California law must apply. See, e.g., Hurtado, 11 Cal. 3d at 580 (“When one of two states related to a case has a legitimate interest in the application of its law and policy and the other has none, there is no real problem; clearly the law of the interested state should be applied.”).

 

D. Cases from other states applying Michigan law are distinguishable.

Defendants cite four cases from several other jurisdictions wherein courts applying a choice of law analysis chose to apply Michigan’s pharmaceutical shield law. However, each of these cases is easily distinguishable. First, three of the cases involve a completely different choice of law analysis than the governmental interest analysis applied by California courts. Alli v. Eli Lilly & Co., 854 N.E.2d 372 (Ind. App. 2006) (applying lex loci delicti rule); Henderson v. Merck & Co., 2005 WL 2600220 (E.D. Pa. 2005) (applying most significant relationship test); Norris v. Pfizer, Inc., 839 N.Y.S.2d 434 (N.Y. Sup. 2007) (applying interests analysis). Moreover, none of these decisions post-dated the recent repeal of the Michigan statute by the Michigan House or the recent U.S. Supreme Court decision in Wyeth v. Levine which called into question the continued vitality of the Michigan law.

The final case cited by Defendants is Rowe v. Hoffman-Laroche, Inc. In that case, the issue was whether to apply New Jersey law, which created a rebuttable presumption that any warnings approved by the FDA were adequate, or Michigan law, which barred any warning claims relating to FDA-approved warnings. Unlike California’s product liability law, the purpose of the New Jersey law at issue was not to deter wrongful conduct within its borders:

The predominant object of the law is not to encourage tort recoveries by plaintiffs, whether New Jersey citizens or not, in order to deter this State’s drug manufacturers. On the contrary, the law limits the liability of manufacturers of FDA-approved products by reducing the burden placed on them by product liability litigation. The Legislature carefully balanced the need to protect individuals against the need to protect an industry with a significant relationship to our economy and public health. New Jersey’s interest in applying its law to Rowe’s failure-to-warn issue, when properly discerned, is not antithetical to Michigan’s interest but substantially congruent.

Rowe v. Hoffman-Laroche, Inc., 917 A.2d 767, 774 (N.J. 2007). As a result, the New Jersey court, in a five to two decision, decided to apply Michigan law. Here, of course, California’s product liability law is antithetical to Michigan’s law and is based on the important goal of deterring wrongful conduct within its borders. Rowe is simply inapplicable.

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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