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Schmelzle v. ALZA Corp.: US District Court : CIVIL PROCEDURE - conflict of laws: Wyoming Statute of Limitations applies; judgment on pleadings for defendants

Robert L. Schmelzle, as Trustee
for the next of kin of Kelly Sue
v. Civil No. 06‐4846
ALZA Corporation, Janssen
Pharmaceutica Products, LP, a/k/a
Janssen Orth‐McNeil and Janssen
Pharmaceutica, Inc.
Gale D. Pearson and Stephen J. Randall, Pearson, Randall & Schumacher,
P.A. and J. Scott Bertram and Benjamin A. Bertram, Bertram & Graf, LLC and
Gregory C. Graf, LLC for and on behalf of Plaintiff.
Tracy J. Van Steenburgh, Dana M. Lenahan and Jan R. McLean Bernier,
Halleland Lewis Nilan & Johnson, P.A. and Rita A. Maimbourg and S. Peter
Voudouris, Tucker Ellis & West LLP for and on behalf of Defendants.
Plaintiff filed this wrongful death action in the District of Minnesota on
December 11, 2006. Plaintiff has alleged that decedent died in Gillette, Wyoming
on December 12, 2003, as a result of her use of Duragesic, a fentanyl‐containing,
transdermal patch available only by prescription for the treatment of chronic
pain. Plaintiff further alleges that the death of the decedent was caused by the
wrongful acts or omissions of the manufacturer and its subsidiaries of the
prescription drug Duragesic.
It is Defendants position that this case has no connection to Minnesota.
Plaintiff and the decedent resided in Wyoming during the relevant time period,
and the decedent received all of her medical treatment in Wyoming. There are
only three paragraphs in the Complaint that relate to Minnesota: ALZA is a
Delaware corporation that has a facility in Minnesota where it designs and
manufactures transdermal drug delivery patch systems ( 3), and that Janssen, a
limited partnership organized and existing under the laws of the State of New
Jersey, marketed and distributed Duragesic in Minnesota ( 4 and 5).
At issue in this motion is which limitations period applies to Plaintiffs
causes of action. Wyomings wrongful death statute has a two year limitations
period that begins to run upon the death of the decedent. Wyo. Stat. 1‐38‐
102(d). Minnesotas wrongful death statute has a three year limitations period.
Minn. Stat. 573.02(1). Defendants argue that this issue must be determined by
applying Minnesotas choice of law principles.
A. Choice of Law Standard
In diversity cases, the forum states choice of law rules apply. Ferrell v.
West Bend Mut. Ins. Co., 393 F.3d 786, 796 (8th Cir. 2005). To decide whether a
choice of law analysis is necessary, the Court first determines whether the rule of
law at issue is procedural or substantive. Northwest Airlines, Inc. v. Astraea
Aviation Servs., Inc., 111 F.3d 1386 at 1393 (8th Cir. 1997). The parties agree that
the rule of law at issue is substantive, therefore the Court should proceed to
Minnesotas choice of law analysis.
The first issue to be addressed is whether there is an actual conflict
between the legal rules of the two states. Nodak Mut. Ins. Co. v. American
Family Ins. Co., 590 N.W.2d 670, 672 (Minn. Ct. App. 1999). An actual conflict
exists if choosing the rule of one state or the other is outcome determinative.
Id. Clearly, there is a conflict between the applicable Wyoming and Minnesota
statute of limitations. If Wyoming law applies, this action is time‐barred, if
Minnesota law applies, it is not time‐barred.
Because there is an actual conflict, this Court must apply a five factor test
to determine which law should govern. Milkovich v. Saari, 295 Minn. 155, 203
N.W.2d 408 (1973). The factors are: 1) predictability of results; 2) maintenance of
interstate order; 3) simplification of the judicial task; 4) advancement of the
forum states interests; and 5) application of the better rule of law. Id., 295 Minn.
at 161, 203 N.W.2d at 412. The factors are not to be mechanically applied, but are
meant to prompt the courts to carefully and critically consider each new fact
situation and explain in a straightforward manner their choice of law. Jepson v.
General Casualty Company of Wisconsin, 513 N.W.2d 467, 470 (Minn. 1994).
1. Predictability of Results
Predictability of results as it relates to the tort aspect of a case is not of
great importance in situations such as the one presented here because of the
unplanned nature of automobile accidents. Jepson, 513 N.W.2d at 470.
Although this case does not involve a car accident, arguably a wrongful death
action due to a prescription drug is similarly unplanned. Thus, this factor is not
of importance.
2. Maintenance of Interstate Order
This factor concerns the assurance of the free and unpenalized interstate
movement of people and goods necessary to the success of the federal system.
Nodak, 590 N.W.2d at 673. This requires deference to a sister states legal rules
when that sister state has a substantial concern with the problem, even when the
forum state also has an identifiable interest. Id.
Defendants assert that of particular importance to this factor is the
prevention of forum shopping. Jepson, 513 N.W.2d at 471. Plaintiff is a resident
of Wyoming and the decedent resided there at all times relevant to the claims
asserted. A Wyoming pharmacy dispensed the Duragesic patch to the decedent
and all heirs and next of kin reside in Wyoming. Plaintiff has not alleged in the
Complaint that Duragesic was designed or manufactured in Minnesota. Under
these circumstances, Wyoming has a more substantial connection to this case.
Defendants argue that by not filing this action in Wyoming, Plaintiff was trying
to avoid the applicable Wyoming limitations period. Thus, application of
Wyoming law would prevent forum shopping.
Plaintiff responds that the Defendants have minimal contacts with the state
of Wyoming. By contrast, Defendants have had annual sales of Duragesic of
,000,000 in Minnesota between 2002 and 2006. No comparable sales figures
were provided for Wyoming. Plaintiff further notes that ALZA does research
and develops transdermal patches in Fridley, Minnesota. Plaintiff argues that as
scientific knowledge concerning transdermal fentanyl systems does not exist in a
vacuum, the knowledge of safety risks associated with fentanyl is common to
researchers at the Fridley facility as well as to those responsible for the design,
marketing and sale of the patch at issue, Duragesic. Given Defendants
connection to Minnesota, Plaintiff argues that forum shopping is not implicated
in this case. Finally, Plaintiff notes that as of August 15, 2007, there have been
721 reports of adverse events associated with Duragesic in Minnesota,
compared to 56 in Wyoming.
This Court has previously held that maintenance of interstate order weighs
in favor of the state that has the most significant contacts with the facts relevant
to the litigation. In re Baycol Prods. Litig., 218 F.R.D. 197, 207 (D. Minn. 2003)
(this factor weighs in favor of applying the law of the state in which the plaintiff
resides, and where the drug was prescribed.). As applied to this case, Plaintiff is
a lifelong resident of Wyoming, and facts surrounding the circumstances of the
decedent using Duragesic took place in Wyoming. Furthermore, there is no
allegation that Duragesic was designed or manufactured in Minnesota.
Accordingly, the Court finds that this factor weighs in favor of the application of
Wyoming law.
3. Simplification of the Judicial Task
This factor is insignificant, as courts can just as easily apply the law of
another state as easily as their own. Jepson, 513 N.W.2d at 472.
4. Advancement of Forum States Interests
This factor is designed to ensure that Minnesota courts will not have to
apply a state law that is inconsistent with Minnesotas concept of fairness and
equity. Schumacher v. Schumacher, 676 N.W.2d 685, 691 (Minn. Ct. App.
2004)(quoting Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 455
(Minn. Ct. App. 2001)). This factor also favors the law that will most effectively
advance a significant interest of the forum state. Jepson, 513 N.W.2d at 472.
Minnesota favors compensating tort victims. Id. By compensating tort
victims, we reduce the chance that injured persons will be forced to seek public
assistance as a result of their injuries. Danielson v. Nat.l Supply Co., 670
N.W.2d 1, 9 (Minn. Ct. App. 2003). Compensating tort victims also ensures that
medical providers will be paid, and it also promotes responsibility of sellers and
producers. Id. The Court must also consider the public policies of both states
The Court agrees that Minnesota has little interest in this matter given its
lack of connection with the core facts underlying Plaintiffs causes of action.
Minnesotas interest in compensating tort victims is lessened where the injury
occurred in another state, the injured party is not a Minnesota resident and did
not receive medical care here. See generally RESTATEMENT (SECOND) OF
CONFLICT OF LAWS 145, comment c; accord Nesladek v. Ford Motor Co., 876
F. Supp. 1061, 1069 (D. Minn. 1994) affd 46 F.3d 734, 736 (8th Cir. 1995). See also
In re: Baycol Prod. Litig., 218 F.R.D. at 207 (fourth factor weighs in favor of
application of the state law in which the plaintiff lived and in which the injury
occurred.) By contrast, Wyoming has a strong interest in the application of its
own wrongful death statute and its limitation period in order to prevent the
prosecution of stale claims. See Corkill v. Knowles, 955 P.2d 438, 442 (Wyo.
5. Application of the Better Rule of Law
The better rule of law is intended to be the rule that made good socioeconomic
sense for the time when the court speaks. Jepson, at 473. This factor is
generally addressed only if the application of the four previous factors are not
determinative. Shumacher, 676 N.W.2d at 692.
As applied to the facts of this case, the relevant factors of the choice of law
analysis favor the application of Wyoming law in this case.
B. Fraudulent Concealment
Plaintiff argues that even if the Court finds that Wyoming law should
apply, the doctrine of fraudulent concealment requires that the two year
limitation period not begin to run until Plaintiff uncovered the existence of said
fraudulent conduct. In support, Plaintiff cites to two decisions of the Wyoming
Supreme Court, neither of which specifically adopt the doctrine that fraudulent
concealment may toll the limitations period contained in Wyomings wrongful
death statute. See, Corkill 955 P.2d 438 (holding only that discovery rule will not
toll limitation period in wrongful death statute); Robinson v. Pacificorp, 10 P.3d
1133, 1136 (Wyo. 2000) (declining to address issue of whether wrongful death
limitation period may be tolled by claim of fraudulent concealment). Plaintiff
nonetheless argues that Wyoming would toll the limitation period contained in
the Wyoming wrongful death statute, and that Plaintiff has further plead a claim
of fraudulent concealment with sufficient particularity.
Defendants respond that Wyoming law does not support application of the
doctrine of fraudulent concealment to toll the wrongful death limitations period.
In fact, the main case cited by Plaintiff, the Corkhill decision, implies that
fraudulent concealment would not toll the limitations period. In Corkhill, the
1Wyoming has, on the other hand, applied the doctrine of fraudulent concealment to the
limitations periods applicable to other types of cases, such as under the Wyoming Government
Claims Act, see Archuleta v. City of Rawlins, 942 P.2d 404 (Wyo. 1997), products liability
involving injury only, see Olson v. A.H. Robins Co., 696 P.2d 1294 (Wyo. 1985) and assault and
battery. See Turner v. Turner, 582 P.2d 600 (Wyo. 1978).
court held that as the limitations period in the wrongful death statute was a
condition precedent, rather than a statute of limitations, the time period
authorized by a condition precedent, absent a savings clause, cannot be extended
by the exceptions usually allowed for general statutes of limitation. Id. 955 P.2d
at 443. The court thus refused to apply the discovery rule, or the minor tolling
provisions, to the applicable wrongful death statute. The court did, however,
reference a West Virginia decision which recognized that public policy would toll
the limitation period if the defendant concealed material facts surrounding. Id
(citing Miller v. Romero, 186 W. Va. 523, 413 S.E.2d 178 (W. Va.,1991)).
Nonetheless, the court did not go so far as to hold that fraudulent concealment
will toll the limitations period in the wrongful death statute.1
This Court thus finds that it is not clear whether Wyoming would apply
the doctrine of fraudulent concealment to toll the limitations period of the
applicable wrongful death statute. Assuming arguendo that the doctrine applies,
the Court finds that Plaintiff has failed to plead it with sufficient particularity.
See Robinson, 10 P.3d at 1136.
Plaintiff argues that he has plead fraudulent concealment, but refers the
Court only to the allegations supporting his substantive theories of recovery. In
Olson, however, the court refused to toll the applicable statute of limitations on
the plaintiffs product liability claims based on equitable estoppel/fraudulent
concealment because the plaintiff failed to show that the defendant made
representations or omissions which either induced the postponement of a suit or
fraudulently concealed the facts necessary to a cause of action. Id. 696 P.2d at
During the ensuing approximate ten‐year period [from the time of injury
and the filing of suit] there was no contact between appellant and appellee
A.H. Robins Company. Therefore, there were no negotiations, no offers to
settle, no statements of fact or opinion, no representations upon which
appellant relied, and no course of dealings between the parties that could
give rise to an estoppel. There is no showing that appellant inquired of
appellee concerning the Dalkon Shield, or attempted to develop factual
information, or that information was concealed from appellant. It is not
enough that others may have undertaken this course of action. That does
not help appellant; for, had she inquired of either the doctors or appellee,
additional information might have resulted. There being no showing that
information was concealed from appellant or that facts were
misrepresented to her and relied upon to her detriment, she cannot prevail
upon equitable estoppel.
Similarly, in this case the Plaintiff alleged that Defendants willfully
concealed safety/risk information, but Plaintiff has not alleged that he specifically
sought information from Defendants, and that Defendant made representations
to him upon which he relied to his detriment by filing suit after the applicable
limitations period had run. Accordingly, the Court finds that Plaintiff has not
sufficiently plead fraudulent concealment which tolls the applicable limitations
IT IS HEREBY ORDERED that Defendants Motion for Judgment on the
Pleadings [Doc. No. 63] is GRANTED. This matter is dismissed.
Date: June 21, 2008
s / Michael J. Davis
Michael J. Davis
United States District Court


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