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M.M. v. Pfizer, Inc.

Supreme Court of West Virginia

November 1, 2017

M.M., A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND Jeanette M., Plaintiff Below, Petitioner
v.
PFIZER, INC.; ROERIG, A DIVISION OF PFIZER, INC.; AND GREENSTONE, LLC, Defendants Below, Respondents

          Submitted: October 17, 2017

         Appeal 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 Petitioner

          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 Respondents

          JUSTICE KETCHUM, deeming himself disqualified, did not participate in the decision of this case., JUDGE REEDER, sitting by special assignment.

         SYLLABUS BY THE COURT

         1. "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).

         2. "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 (1963).

         3. "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 550 (1986).

         4. "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 (1983).

          5. "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).

          OPINION

          DAVIS JUSTICE

         The petitioner herein and plaintiff below, M.M.[1] ("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.

         I. FACTUAL AND ...


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