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Wolfe v. McNeil-PPC

July 30, 2010

KILEY WOLFE PLAINTIFF,
v.
MCNEIL-PPC, INC.; MCNEIL CONSUMER & SPECIALTY PHARMACEUTICALS, A DIVISON OF MCNEIL-PPC, INC.; MCNEIL CONSUMER HEALTHCARE, A DIVISON : OF MCNEIL PPC, INC.; JOHNSON & JOHNSON, INC.; AND JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH AND DEVELOPMENT, LLC; DEFENDANTS.



The opinion of the court was delivered by: Jan E. Dubois, J.

DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This is a products liability action in which plaintiff, Kiley Wolfe, alleges that the Children's Motrin manufactured and marketed by defendants caused her to develop Stevens-Johnson Syndrome and Vanishing Bile Duct Syndrome. The Court's Third Amended Scheduling Order of March 30, 2009, directed the parties to file and serve memoranda of law addressing their respective positions on the choice of law issues in the case. After reviewing those memoranda and the relevant material submitted by the parties, the Court concludes that Pennsylvania law is applicable to Counts One through Six of the Complaint and that Maine law will be applied to Count Seven and the affirmative defense of comparative negligence.

II. BACKGROUND

Kiley Wolfe contracted a virus while living with her parents in Bath, Maine during the Spring and Summer of 1996, when she was nine years old. (Compl. ¶¶ 2, 21, 22.) Sometime around May 27, 1996, Wolfe's parents took her to see a pediatrician in Maine. The pediatrician prescribed Children's Motrin to help relieve Wolfe's symptoms, which included headache, stomach pains, and a fever. (Compl. ¶21, 22). Children's Motrin is an over-the-counter non-steroidal anti-inflammatory analgesic drug, generically referred to as ibuprofen, manufactured and marketed by defendants. (Compl. ¶ 12.)

Despite taking the Children's Motrin, Wolfe's symptoms did not improve. Instead, a rash formed on her face and she was again taken to see her Maine pediatrician, who continued to prescribe Children's Motrin (Compl. ¶ 24, 25). Thereafter, hundreds of tiny blisters appeared on Wolfe's face, ears and throat. (Compl. ¶ 27.) Sometime after June 1, 1996, Wolfe was taken to Boston Children's Hospital by her mother, where she was diagnosed with Stevens-Johnson Syndrome, which led to the development of Acute Vanishing Bile Duct Syndrome. (Compl. ¶¶ 28, 29, 30). Since this diagnosis, Wolfe has been treated at locations in Ohio, Florida, and Louisiana, the state where she currently resides.

Each of the defendants is alleged to be involved in the design, testing, manufacturing, marketing and selling of Children's Motrin. McNeil-PPC is New Jersey Corporation with its principal place of business in New Jersey; McNeil Consumer Healthcare*fn1 is an unincorporated division of McNeil-PPC with a headquarters in Fort Washington, Pennsylvania; Johnson & Johnson, Inc. is the parent company of Johnson & Johnson Pharmaceutical Research and Development and the parent company of McNeil-PPC and McNeil Consumer Healthcare. The Johnson & Johnson companies are both New Jersey corporations with principal places of business in New Jersey.

Plaintiff's Complaint contains seven counts: (1) negligence, (2) strict liability under Restatement (Second) of Torts § 402A, (3) strict liability under Restatement (Second) of Torts § 402B, (4) breach of express warranty, (5) breach of implied warranty of merchantability, (6) violation of consumer protection law, and (7) punitive damages. Plaintiff avers that the conduct for which it seeks to hold defendants liable took place at McNeil Consumer Healthcare's headquarters in Fort Washington, Pennsylvania.

III. DISCUSSION

Plaintiff and defendants agree that the first five counts of the Complaint do not present any true conflicts of law. Thus, applying Pennsylvania choice of law rules, Pennsylvania law will be applied to those counts of the Complaint. See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226-27 (3d Cir. 2007) (noting that a deep choice of law analysis is only necessary under Pennsylvania choice of law rules if there is a true conflict) (citing Cipolla v. Shaposka, 267 A.2d 854, 856 (1970)).

With respect to Count Six, the consumer protection law claim, the parties agree that, although there is a true conflict between the consumer protection laws of Maine and Pennsylvania, Pennsylvania law should be applied. Accordingly, the Court need not conduct a choice-of-law analysis regarding Count Six. See Health Robotics, LLC v. Bennett, No. 09-627, 2009 WL 5033966, at *2 n.2 (E.D. Pa. Dec. 22, 2009). Pennsylvania law will be applied to Count Six.

The clash in this case concerns Count Seven-the punitive damages claim-and defendant's affirmative defense of comparative negligence. The parties dispute whether there is a true conflict between the laws of Pennsylvania and Maine and, if so, which jurisdiction has the greater interest in ...


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