Opinion
CIVIL ACTION NO. 19-277 CIVIL ACTION NO. 19-981
2019-11-04
Melanie ATKINSON, v. LUITPOLD PHARMACEUTICALS, INC., et al. Flora Turkoski, v. Luitpold Pharmaceuticals, Inc., et al.
Michael G. Daly, Gabriel C. Magee, Tobias Millrood, Pogust Millrood LLC, Conshohocken, PA, Jeannine M. Kenney, Hausfeld LLP, Washington, DC, for Plaintiff. Heather C. Giordanella, Kenneth A. Murphy, David F. Abernethy, Drinker Biddle & Reath LLP, Philadelphia, PA, Michael C. Zogby, Drinker Biddle & Reath LLP, Florham Park, NJ, Randall L. Christian, Bowman & Brooke LLP, Austin, TX, for Defendant.
Michael G. Daly, Gabriel C. Magee, Tobias Millrood, Pogust Millrood LLC, Conshohocken, PA, Jeannine M. Kenney, Hausfeld LLP, Washington, DC, for Plaintiff.
Heather C. Giordanella, Kenneth A. Murphy, David F. Abernethy, Drinker Biddle & Reath LLP, Philadelphia, PA, Michael C. Zogby, Drinker Biddle & Reath LLP, Florham Park, NJ, Randall L. Christian, Bowman & Brooke LLP, Austin, TX, for Defendant.
OPINION
WENDY BEETLESTONE, DISTRICT JUDGE
Plaintiffs Melanie Atkinson and Flora Turkoski bring these actions against Defendants Luitpold Pharmaceuticals Inc., American Regent, Inc., Daiichi Sankyo, Inc., Daiichi Sankyo Co., Ltd., Daiichi Sankyo US Holdings, Inc., and Vifor Pharmaceuticals Management Ltd. (collectively, "Defendants"), for injuries allegedly stemming from Plaintiffs' use of Defendants' iron injection drug, Injectafer. Plaintiffs now move for choice-of-law discovery in this action, seeking to conduct wide-ranging discovery and then to brief the choice-of-law issue, while asserting that Pennsylvania law should govern all substantive issues. Defendants oppose, arguing choice-of-law discovery is unnecessary because the law is clear that the law of the state where the injury occurred applies: Texas for Atkinson and Florida for Turkoski. For the reasons that follow, Plaintiffs' motion shall be denied.
I. BACKGROUND
Plaintiffs allege they have suffered extensive and ongoing injuries as a result of their medically supervised use of an iron injection drug, Injectafer. Plaintiffs allege that Defendants were negligent in the development, design, studying, testing, pharmacovigilance, labeling, promotion, and sale of Injectafer.
Plaintiffs' cases are two of fourteen such Injectafer cases filed thus far, all of which are before this Judge.
Both Plaintiffs are non-Pennsylvania residents. Atkinson is a citizen of Texas who was injured in her home state and subsequently underwent treatment for her injuries there. Turkoski is a citizen of Florida who was injured in her home state and subsequently underwent treatment there.
Defendant American Regent, Inc. is incorporated in New York and operates its principal office there. Daiichi Sankyo, Inc. ("DSI") is incorporated in Delaware and has its principal office in New Jersey. DSI is wholly owned by Daiichi Sankyo U.S. Holdings, Inc., which is located in New Jersey. DSI is also the United States subsidiary of Daiichi Sankyo Co., Ltd., which is located in Japan. Vifor Pharmaceuticals Management Ltd. is headquartered in Switzerland.
Effective January 1, 2019, Luitpold Pharmaceuticals, Inc. merged with American Regent, Inc. Prior to the merger, Luitpold Pharmaceuticals, Inc. was incorporated in New York and maintained its principal office there.
II. PROCEDURAL HISTORY
Plaintiffs' complaints are nearly identical in their causes of action, which sound in negligence, gross negligence, strict liability, fraud, breach of warranty, and breach of consumer protection laws.
In a July 30, 2019 teleconference with the parties, the Court recognized that the choice-of-law issue should be resolved before the rulings on dispositive motions in this complex case. Subsequently, Plaintiffs filed a motion to compel choice-of-law discovery pursuant to Federal Rule of Civil Procedure 37(a), and Defendants filed a response in opposition.
III. LEGAL STANDARD
The scope and conduct of discovery are within the sound discretion of the trial court. In re Cendant Corp. Sec. Litig. , 343 F.3d 658, 668 (3d Cir. 2003) ; see also Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir. 1969). Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery. Rule 37(a)(1) provides that "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery." Fed. R. Civ. Pro. 37(a)(1). "The moving party bears the initial burden to prove that the requested discovery falls within the scope of discovery as defined by Rule 26(b)(1). If the moving party meets this initial burden, the burden then shifts to the opposing party to demonstrate that the requested discovery (i) does not fall within the scope of discovery contemplated by Rule 26(b)(1), or (ii) is not sufficiently relevant to justify the burden of producing the information." Wright v. City of Philadelphia , 2017 WL 1541516, at *1 (E.D. Pa. Apr. 28, 2017) (internal citations omitted).
While the scope of discovery under the Federal Rules is broad, it is not unlimited. See Bayer AG v. Betachem, Inc. , 173 F.3d 188, 191 (3d Cir. 1999). A party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). "The responses sought must comport with the traditional notions of relevancy and must not impose an undue burden on the responding party." Hicks v. Arthur , 159 F.R.D. 468, 470 (E.D. Pa. 1995). "Discovery should be tailored to the issues involved in the particular case." Kresefky v. Panasonic Commc'ns & Sys. Co. , 169 F.R.D. 54, 64 (D.N.J. 1996).
IV. DISCUSSION
Plaintiffs seek wide-ranging discovery—via interrogatories, requests for admission, and requests for production—on the identification of employees, physical locations, and processes for Injectafer drug development, regulatory affairs and labeling, pharmacovigilance, and pharmacoepidemiology. They also seek Rule 30(b)(6) depositions, depositions of corporate representatives from the two foreign Defendants (Vifor Pharmaceuticals Management, Ltd. and Daiicho Sankyo Co.), and document production related to the relationship between the foreign and the US-based Defendants.
Plaintiffs argue this discovery will shed light on Defendants' "Pennsylvania-centric activities that involve the Injectafer product." They contend that Pennsylvania's "flexible approach" to the choice-of-law analysis makes clear that the site of the injury is not determinative, but rather that the policies and interests underlying the case should be analyzed. They argue that discovery will show that Pennsylvania has the greatest interest in this case, as it is the site where the negligence related to the drug's design, development, testing, labeling, pharmacovigilance, sale, marketing, and promotion allegedly occurred. Defendants disagree, arguing the law of the plaintiffs' home states should apply. The parties' arguments are driven in large part by the standard they think will apply in the Court's choice-of-law analysis.
A federal court sitting in diversity must apply the choice-of-law rules of the forum state—here, Pennsylvania. See Klaxon v. Stentor Electric Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ; Hammersmith v. TIG Ins. Co. , 480 F.3d 220, 226 (3d Cir. 2007). Pennsylvania has adopted a "flexible approach to choice of law" that requires "evaluating qualitatively" the relationship each forum has to the controversy. Griffith v. United Air Lines, Inc. , 416 Pa. 1, 203 A.2d 796, 806 (1964).
In Pennsylvania, "the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws." Hammersmith , 480 F.3d at 230. If there is an actual conflict, the second step is to determine whether there is a "true conflict," meaning that "both states' interests would be harmed by the application of the other state's law." Specialty Surfaces Int'l, Inc. v. Cont'l Cas. Co. , 609 F.3d 223, 230 (3d Cir. 2010) ; see also Stange v. Janssen Pharm., Inc. , 179 A.3d 45, 65 (Pa. Super. 2018) ("A true conflict occurs where an analysis of the policies underlying each of the conflicting laws reveals that, in each case, application of the respective state's law would further its corresponding policy."). Finally, if a true conflict exists, courts must determine which jurisdiction has the "most significant relationship to the parties and the occurrence." Stange , 179 A.3d at 66. In evaluating the most significant relationship, Pennsylvania courts look to the factors in the Restatement (Second) of Conflicts: 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 parties; and the place where the relationship, if any, between the parties is centered. See id. at 65 ; see also State Auto Prop. & Cas. Ins. Co. v. Moser , 2018 WL 2093596, at *3 (Pa. Super. 2018). Plaintiffs argue that discovery focused on two of the Restatement factors—the place where the conduct causing the injury occurred and the place where the relationship between the parties is centered—will show that Pennsylvania law should be applied here.
Defendants argue that choice-of-law decisions in pharmaceutical cases in this District militate in favor of the application of the law of the state where the injury occurred. In Knipe v. SmithKline Beecham , 583 F. Supp.2d 602, 608–09 (E.D. Pa. 2008), the parents of a teenager who committed suicide sued the manufacturer of an antidepressant drug. The court conducted a choice-of-law analysis, considering that the plaintiff saw a New Jersey physician, filled her prescription at a New Jersey pharmacy, and ultimately committed suicide in New Jersey. Id. at 615–16. The defendant's headquarters were in Pennsylvania, and the plaintiffs argued that drug testing, labeling, marketing, and distribution decisions were made in Pennsylvania. The court found this argument "unavailing" and as having "been repeatedly rejected by courts within this district." Id. at 616. The court applied New Jersey law because "[t]he jurisdiction in which the drug was prescribed and ingested clearly maintains the strongest interest in applying its applicable law to regulate the sale, prescription and ingestion of pharmaceuticals within its borders." Id. ; see also In re Diet Drugs , 1999 WL 673066, at *15 (E.D. Pa. Aug. 26, 1999) (recognizing that where the plaintiff was prescribed and ingested the drug is crucial in a choice-of-law analysis).
Other cases in this District have had similar outcomes and reasoning. In Henderson v. Merck & Co., Inc. , 2005 WL 2600220, at *8 (E.D. Pa. Oct. 11, 2005), the court conducted a choice-of-law analysis and considered the defendants' residence and headquarters, but found that "because plaintiff is a Michigan resident, because plaintiff purchased, was prescribed, and ingested [the drug] within Michigan's borders, and because plaintiff allegedly suffered injuries in Michigan, the interests of Pennsylvania, New York, and New Jersey in applying their product liability laws to such extraterritorial conduct lose vigor." See also Bearden v. Wyeth , 482 F. Supp.2d 614, 620 (E.D. Pa. 2006) (applying Arkansas law, despite Pennsylvania being the defendant's principal place of business and decision-making headquarters, because Arkansas was the state in which the decedent lived, received medical care associated with his depression, purchased the anti-depressant, experienced any reactions to the drug, and committed suicide).
Plaintiffs rely heavily on Griffith , 203 A.2d at 805–06, arguing that it rejected the lex loci delecti doctrine, which mechanically applies the law of the state where the plaintiff's injury occurred. But Griffith was a case about a plane that crashed in Colorado on a flight from Pennsylvania to Arizona. The court noted that the crash site being in Colorado was "purely fortuitous" and, rather than apply Colorado law automatically, analyzed the case under the flexible framework of the Restatement factors. Id. at 806–07. The court concluded that Pennsylvania law should apply because "Pennsylvania's interest in the amount of recovery [was] great"—the decedent was a Pennsylvania resident and formed his contract with United Airlines in Pennsylvania. Id. at 807.
Unlike a plane crash, the sites of the injuries here are not fortuitous. The Third Circuit has made clear that "[w]here the site of an accident is not fortuitous, the place of injury assumes much greater importance, and in some instances may be determinative." LeJeune v. Bliss-Salem, Inc. , 85 F.3d 1069, 1072 (3d Cir. 1996) (internal quotations omitted). Plaintiffs Atkinson and Turkoski received Injectafer prescriptions in their home states of Texas and Florida, respectively, ingested the drug there, suffered injuries there, and received treatment there. In such circumstances, this Court agrees with the trend of the law in this District and Circuit, which is to apply the law of the state in which the claim arose rather than apply Pennsylvania substantive law.
Plaintiffs also cite to this Court's opinion in Heichel v. Marriott Hotel Services, Inc. , 2019 WL 318256, at *1 (E.D. Pa. Jan. 24, 2019), which relies on Griffith. But Heichel held that the law of Washington, D.C., where the slip and fall occurred, applied, which favors Defendants' argument here.
Accordingly, given that the law of Plaintiffs' home states governs this action, discovery pertaining to the choice-of-law analysis is not necessary and Plaintiffs' motion for choice-of-law discovery is denied. An appropriate order follows.