M.M., A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND Jeanette M., Plaintiff Below, Petitioner
PFIZER, INC.; ROERIG, A DIVISION OF PFIZER, INC.; AND GREENSTONE, LLC, Defendants Below, Respondents
Submitted: October 17, 2017
from the Mass. Litigation Panel Circuit Court of Kanawha
County Honorable James P. Mazzone, Judge In re Zoloft
Litigation No. 14-C-7000, Civil Action No. 12-C-149
Benjamin L. Bailey Ryan McCune Donovan J. Zak Ritchie Bailey
& Glasser LLP Charleston, West Virginia Bert Ketchum
Greene Ketchum Huntington, West Virginia Attorneys for the
Michael J. Farrell Erik W. Legg Megan Farrell Woodyard
Farrell, White & Legg PLLC Huntington, West Virginia Mark
S. Cheffo, pro hac vice Quinn Emanuel Urquhart &
Sullivan, LLP New York, New York Attorneys for the
JUSTICE KETCHUM, deeming himself disqualified, did not
participate in the decision of this case., JUDGE REEDER,
sitting by special assignment.
BY THE COURT
"A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syllabus point 3,
Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
"If there is no genuine issue as to any material fact
summary judgment should be granted[.]" Syllabus point 4,
in part, Aetna Casualty & Surety Co. v. Federal
Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
"In general, this State adheres to the conflicts of law
doctrine of lex loci delicti." Syllabus point
1, Paul v. National Life, 177 W.Va. 427, 352 S.E.2d
"Product liability actions may be premised on three
independent theories-strict liability, negligence, and
warranty. Each theory contains different elements which
plaintiffs must prove in order to recover. No rational reason
exists to require plaintiffs in product liability actions to
elect which theory to submit to the jury after the evidence
has been presented when they may elect to bring suit on one
or all of the theories." Syllabus point 6, Ilosky v.
Michelin Tire Corp., 172 W.Va. 435');">172 W.Va. 435, 307 S.E.2d 603
"In order to establish a prima facie case of
negligence in West Virginia, it must be shown that the
defendant has been guilty of some act or omission in
violation of a duty owed to the plaintiff. No action for
negligence will lie without a duty broken." Syllabus
point 1, Parsley v. General Motors Acceptance Corp.,
167 W.Va. 866, 280 S.E.2d 703 (1981).
petitioner herein and plaintiff below, M.M. ("M.M."
or "the Petitioner"), a minor, by and through her
mother and next friend Jeanette M., appeals from an order
entered August 30, 2016, by the Mass. Litigation Panel
("the Panel"). By its order, the Panel granted
summary judgment to the respondents herein and defendants
below, Pfizer, Inc.; Roerig, a division of Pfizer, Inc.; and
Greenstone, LLC (collectively "Pfizer" or "the
Respondents") upon its conclusion that there existed no
genuine issue of material fact and that Pfizer was entitled
to judgment as a matter of law. On appeal to this Court, M.M.
assigns error to the Panel's order and contends that
disputed issues of material fact preclude summary judgment,
the Panel applied the wrong state's law under its choice
of law analysis, and the asserted claims are not preempted by
federal law. Upon our review of the parties' arguments,
the pertinent authorities, and the record designated for
consideration on appeal, we conclude that the Panel
correctlydetermined that the Respondents are entitled to
summary judgment. Accordingly, we affirm the August 30, 2016,
order of the Mass. Litigation Panel.
FACTUAL AND ...