IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term FILED 

April 10, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

No. 14-1189 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STATE OF WEST VIRGINIA, EX REL. J.C., a minor,
 

BY AND THROUGH HIS MOTHER AND NEXT FRIEND, MICHELLE C., ET AL.
 

Plaintiffs Below, Petitioners
 

v. 

THE HONORABLE JAMES P. MAZZONE, lead presiding judge,
 

ZOLOFT LITIGATION, MASS LITIGATION PANEL, AND PFIZER, INC.,
 

ROERIG, DIVISION OF PFIZER, INC., AND GREENSTONE, LLC,
 

FORMERLY KNOWN AS GREENSTONE, LTD,
 

Defendants Below, Respondents
 

PETITION FOR WRIT OF PROHIBITION
 

WRIT DENIED
 

Submitted: March 11, 2015 

Filed: April 10, 2015 

Benjamin L. Bailey, Esq. Michael J. Farrell, Esq. 

John W. Barrett, Esq. Erik W. Legg, Esq. 

Ryan McCune Donovan Megan Farrell Woodyard, Esq. 

Bailey & Glasser LLP Farrell, White & Legg PLLC 

Charleston, West Virginia Huntintgton, West Virginia 

Counsel for the Respondents 

Bert Ketchum, Esq. 

Green Ketchum Farrell 

Bailey & Tweel 

Huntington, West Virginia 

Counsel for the Petitioners 
 

 

 

 

JUSTICE LOUGHRY delivered the opinion of the Court.
 

JUSTICE KETCHUM, deeming himself disqualified, did not participate in the decision in
 

this case.
 

SENIOR STATUS JUSTICE MCHUGH sitting by special assignment.
 

CHIEF JUSTICE WORKMAN and JUSTICE DAVIS dissent and reserve the right to file
 

dissenting opinions.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Prohibition will lie to prohibit a judge from exceeding his legitimate 

powers.” Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977). 

2. “In determining whether to entertain and issue the writ of prohibition . . . 

this Court will examine five factors: (1) whether the party seeking the writ has no other 

adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner 

will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the 

lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower 

tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural 

or substantive law; and (5) whether the lower tribunal’s order raises new and important 

problems or issues of law of first impression. These factors are general guidelines that serve 

as a useful starting point for determining whether a discretionary writ of prohibition should 

issue. Although all five factors need not be satisfied, it is clear that the third factor, the 

existence of clear error as a matter of law, should be given substantial weight.” Syl. Pt. 4, 

in part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice: 

The petitioners1 seek a writ of prohibition to prevent the Mass Litigation Panel 

from enforcing its order entered on October 21, 2014, dismissing them on the basis of forum 

non conveniens from the underlying personal injury litigation, which involves products 

liability and negligence claims. Following a careful review of the briefs, the arguments of 

counsel, the record submitted, and the applicable law, we deny the requested writ. 

I. Facts and Procedural Background 

This litigation commenced on July 11, 2012, when a complaint alleging 

products liability and negligence claims was filed in the Circuit Court of Wayne County by 

nineteen unrelated mothers, who brought claims on behalf of their respective minor children. 

The mothers alleged that their ingestion of the drug sertraline hydrochloride, also known by 

its brand name Zoloft,2 during their pregnancies caused their children to suffer birth defects. 

Out of this group of nineteen, there is one plaintiff family from each of the following states: 

Connecticut, Maryland, Michigan, New York, Ohio, Oklahoma, Oregon, South Carolina, 

1

The petitioners are twentyof the twenty-five unrelated, non-resident plaintiff families 

named in two complaints, as discussed more fully, infra. Because this litigation involves 

plaintiffs who are minor children, we use initials in the style of this case. See W.Va.R.App.P. 

40(e)(1) (restricting use of personal identifiers in matters involving juveniles). 

2

Zoloft is used in the treatment of several disorders, including Major Depressive 

Disorder, Obsessive-Compulsive Disorder, Panic Disorder, Posttraumatic Stress Disorder, 

and Social Anxiety Disorder. 

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Texas, Tennessee, and West Virginia—and two plaintiff families from each of the following 

states: Florida, Louisiana, North Carolina, and Pennsylvania. The respondents, Pfizer, Inc., 

Roerig, a divison of Pfizer, Inc., and Greenstone, LLC, a subsidiary of Pfizer, Inc., which 

distributes Zoloft (collectively referred to as “the respondents” or “Pfizer”), were named as 

defendants in the complaint. 

On August 7, 2012, the respondents removed eighteen of these nineteen 

plaintiff families3 to the United States District Court for the Southern District of West 

Virginia on the basis of diversity jurisdiction.4 The plaintiff families’ motion to remand was 

granted by the federal court.5 The respondents appealed that ruling to the United States Court 

3

The plaintiff family from New York was not removed to federal court as it is not 

diverse from respondent Pfizer, which is headquartered in New York. On August 12, 2012, 

Pfizer filed a motion in the circuit court seeking to dismiss the claims asserted by this New 

York plaintiff family on the basis of forum non conveniens. The circuit court denied the 

motion. Pfizer sought relief from this ruling through a petition for a writ of prohibition filed 

in this Court. We summarily refused the petition by order without oral argument and without 

any discussion on the merits. 

4

See 28 U.S.C. § 1332(a) (2012) (“The district courts shall have original jurisdiction 

of all civil actions where the matter in controversy exceeds the sum or value of $75,000, 

exclusive of interest and costs, and is between– (1) citizens of different States[.]”). 

5

J.C. ex rel. Cook v. Pfizer, Inc., Nos. 3:12-CV-04103, et al., 2012 WL 4442518 

(S.D.W.Va. Sept. 25, 2012). 

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of Appeals for the Fourth Circuit. On July 12, 2013, the Fourth Circuit refused the appeal 

on the basis that it did “not have the authority” to review the remand order.6 

Thereafter, the respondents filed a motion seeking to refer the litigation to the 

Mass Litigation Panel (“the Panel”).7 By administrative order entered on September 24, 

2013, then-Chief Justice Benjamin denied the motion “without prejudice to renew the motion 

in the event additional state actions [were] filed.”8 On the heels of this denial, a virtually 

identical complaint was filed in the Wayne County Circuit Court on October 28, 2013, by six 

unrelated plaintiff families against Pfizer. These six new plaintiff families are residents of 

Illinois, Indiana, Iowa, New York, South Carolina, and West Virginia. The circuit court 

entered an order the same day consolidating the two civil actions. 

With two civil actions now pending, the twenty-five plaintiff families filed a 

motion seeking to refer the litigation to the Panel. While that motion was pending, the 

respondents filed a second notice of removal in federal court naming all nineteen of the 

6

E.D. ex rel. Darcy v. Pfizer, Inc., 722 F.3d 574, 583 (4th Cir. 2013). 

7

This Court established the Panel to, inter alia, “develop and implement case 

management and trial methodologies to fairly and expeditiously resolve Mass Litigation 

referred to the Panel by the Chief Justice[.]” T.C.R. 26.05(a). Motions to refer litigation to 

the Panel are provided for in West Virginia Trial Court Rule 26.06. 

8

Trial Court Rule 26.04(a) defines “mass litigation” as two or more civil actions 

pending in one or more circuit courts. 

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original plaintiff families. Asserting that the New York familyomitted from the first removal 

had been fraudulentlyjoined, the respondents argued there was complete diversity among the 

remaining eighteen plaintiff families.9 Prior to the entry of the federal court order that would, 

again, grant the plaintiff families’ motion to remand,10 then-Chief Justice Davis transferred 

the two civil actions to the Panel through an administrative order entered on January 14, 

2014.11 

9

Pfizer did not seek to remove the six new plaintiff families named in the second 

complaint. 

10J.C. ex rel. Cook v. Pfizer, Inc., No. 3:13-33048, 2014 WL 495455 (S.D.W.Va. Feb. 

5, 2014) (finding partial removal of consolidated case improper and observing that even if 

all twenty-five plaintiff families had been removed, the existence of two plaintiff families 

from New York destroyed diversity). 

11On July 7, 2014, after the referral to the Panel, a new complaint was filed by the 

same counsel in the Circuit Court of Wayne County naming thirteen unrelated plaintiff 

families, two of whom are West Virginia residents. The parties represent that the allegations 

in the complaint were substantively identical to the two prior complaints filed against Pfizer. 

The respondents filed a motion pursuant to West Virginia Trial Court Rule 26.09 seeking to 

join these new plaintiff families with the existing Zoloft litigation. The plaintiff families 

concurred in the motion. Before the motion to refer was ruled upon, the respondents filed 

a motion in the circuit court seeking to dismiss the eleven non-resident plaintiff families on 

the basis of forum non conveniens. Two of these families voluntarily dismissed their claims, 

leaving nine non-resident plaintiff families subject to the motion to dismiss. On August 21, 

2014, through prior authorization given to the Panel by the Chief Justice in an amended 

administrative order entered March 5, 2014, the Panel granted the respondents’ motion to 

refer. A hearing was held on the respondents’ motion to dismiss for forum non conveniens. 

By order entered October 29, 2014, the Panel granted the motion to dismiss. Thereafter, one 

of the two West Virginia families voluntarily dismissed their claims, leaving one West 

Virginia family in the third complaint. These nine non-resident plaintiff families have not 

challenged their dismissal. 

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Following this referral, the Panel held a status conference on March 4, 2014, 

in what is now known as In re: Zoloft Litigation (“Zoloft litigation”). During this 

conference, the Panel advised the parties that under Rule 3(a) of the West Virginia Rules of 

Civil Procedure, the two complaints were actually twenty-five civil actions. Accordingly, 

the Panel divided the plaintiff families into twenty-five civil actions in an order entered on 

March 11, 2014. Those families sought a writ of prohibition in this Court to prevent the 

enforcement of the Panel’s order. On May 27, 2014, this Court issued its opinion in State 

ex rel. J.C. v. Mazzone, 233 W.Va. 457, 759 S.E.2d 200 (2014) (“Mazzone I”), wherein it 

granted the writ of prohibition. 

In Mazzone I, this Court addressed the issue of whether Rule 3(a) allowed the 

Panel to divide the unrelated plaintiff families into twenty-five separate civil actions, or 

whether the rule was merely an administrative tool for circuit court clerks to charge unrelated 

plaintiffs separate filing fees. In addressing this issue, we held, as follows: 

Rule 3(a) of the West Virginia Rules of Civil Procedure 

provides that “[f]or a complaint naming more than one 

individual plaintiff not related by marriage, a derivative or 

fiduciary relationship, each plaintiff shall be assigned a separate 

civil action number and be docketed as a separate civil action 

and be charged a separate fee by the clerk of a circuit court.” 

Rule 3(a) is an administrative fee and record keeping provision. 

The use of multiple case docket numbers is for the purpose of 

assessing and tracking filing fees, and for tracking documents 

that may apply to individual plaintiffs. Rule 3(a) does not 

provide authorityfor severing a complaint substantivelyinto two 

or more separate civil cases. 

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Id., at 459, 759 S.E.2d at 202, syl. pt. 3. We further stated in Mazzone I that while the parties 

were permissibly joined under Rule 20 of the West Virginia Rules of Civil Procedure, 

nothing prevents the Panel from using procedural mechanisms 

to procedurally divide the plaintiffs and defendants into any 

number of relevant groups, so long as no substantive division 

occurs . . . . Moreover, to the extent that some plaintiffs may be 

subject to dispositive motions based upon such issues as statutes 

of limitation or summary judgment, the Panel also is free to 

devise a scheme that permits the defendants to raise those issues 

and have them addressed separately. In addition to these 

examples, the Panel also may craft solutions to address other 

procedural issues that may arise. 

233 W.Va. at 474, 759 S.E.2d at 217. The Zoloft litigation was remanded to the Panel. 

On June 24, 2014, the Panel entered a Case Management Order12 scheduling 

various hearings, setting a trial date, and establishing deadlines, including a July 9, 2014, 

deadline for Rule 12 motions to dismiss. The petitioners did not raise an objection to the 

Case Management Order, generally, nor to the Rule 12 deadline, specifically. 

In conformity with the deadline set forth in the Case Management Order, the 

respondents filed a motion on July 9, 2014, seeking to dismiss twenty-two non-resident 

12Case management orders are authorized under West Virginia Trial Court Rule 

26.08(d), which is discussed, infra. 

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plaintiff families13 on the basis of forum non conveniens under West Virginia Code § 56-1-1a 

(2012), including the New York plaintiff family who had been the subject of the motion to 

dismiss in the Wayne County Circuit Court. The respondents argued that Mazzone I clarified 

the Panel’s authority to treat the plaintiff families individually, including for purposes of 

dispositive motions. Following a hearing on the motion, the Panel unanimously granted, in 

part, the respondents’ motion to dismiss by order entered October 21, 2014. 

In its dismissal order, the Panel found that the motion was timely filed as it met 

the deadline for such motions in the Case Management Order. Upon consideration of the 

eight factors set forth in the forum non conveniens statute, West Virginia Code § 56-1­

1a(a)(1-8),14 as well as the degree of deference to be accorded to the non-resident plaintiffs’ 

choice of forum under this statute, the Panel dismissed, without prejudice, twenty of the 

twenty-two plaintiff families named in the motion to dismiss, including the New York 

plaintiff family. With regard to the two plaintiff families from Texas and Michigan, the 

Panel stated in its order that the respondents’ counsel conceded that the claims asserted by 

the Texas and Michigan families would be precluded under Michigan and Texas law. 

13The respondents did not name the two West Virginia families or the Ohio family 

with ties to West Virginia in their motion to dismiss. 

14These statutory factors are quoted, in full, infra. 

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Accordingly, the Panel denied the motion to dismiss as to these two families.15 Therefore, 

of the original twenty-five plaintiff families, five remain: two from West Virginia; one from 

Ohio with ties to West Virginia; one from Texas; and one from Michigan. The petitioners 

seek a writ of prohibition in this Court to prevent enforcement of the Panel’s dismissal order. 

II. Standard for Issuance of a Writ of Prohibition 

In the matter before us, the petitioners seek to prohibit the enforcement of an 

order dismissing them from the Zoloft litigation on the basis of forum non conveniens. They 

challenge the timeliness of the respondents’ motion to dismiss. Because that motion was 

filed within the time frame set by the Panel in its Case Management Order, the petitioners’ 

challenge is essentially directed toward that order. West Virginia Trial Court Rule 26.08(d)16 

provides the Panel’s lead presiding judge with the “authority” to enter such orders. 

15In denying the motion to dismiss as to the Texas and Michigan families, the Panel 

stated that 

the presumption that alternate forums exist may be defeated “if 

the remedy provided by the alternative forum is so clearly 

inadequate or unsatisfactory that it is no remedy at all. In such 

cases, the alternate forum ceases to ‘exist’ for purposes of forum 

non conveniens, and dismissal in favor of that forum would 

constitute error.” Syl. Pt. 9 [in part], Mace [v. Mylan Pharm., 

Inc.], 227 W.Va. 666, 668, 714 S.E.2d 223, 225 (2011). 

16West Virginia Trial Court Rule 26.08(d) provides that “[t]he Presiding Judge is 

authorized to adopt a case management order . . . and, after considering the due process rights 

of the parties, to adopt any procedures deemed appropriate to fairly and efficiently manage 

and resolve Mass Litigation.” 

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“Prohibition will lie to prohibit a judge from exceeding his legitimate powers.” Syl. Pt. 2, 

State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).17 In this regard, 

we rely upon those factors set forth in syllabus point four of State ex rel. Hoover v. Berger, 

199 W.Va. 12, 483 S.E.2d 12 (1996): 

[i]n determining whether to entertain and issue the writ of 

prohibition . . . this Court will examine five factors: (1) whether 

the party seeking the writ has no other adequate means, such as 

direct appeal, to obtain the desired relief; (2) whether the 

petitioner will be damaged or prejudiced in a way that is not 

correctable on appeal; (3) whether the lower tribunal’s order is 

clearly erroneous as a matter of law; (4) whether the lower 

tribunal’s order is an oft repeated error or manifests persistent 

disregard for either procedural or substantive law; and (5) 

whether the lower tribunal’s order raises new and important 

problems or issues of law of first impression. These factors are 

general guidelines that serve as a useful starting point for 

determining whether a discretionary writ of prohibition should 

issue. Although all five factors need not be satisfied, it is clear 

that the third factor, the existence of clear error as a matter of 

law, should be given substantial weight. 

17We observe a notable difference between West Virginia Trial Court 26.08(d) and 

its substantive equivalent, Rule 16(b) of the West Virginia Rules of Civil Procedure. Rule 

16(b) states, in part, that “the judge shall . . . enter a scheduling order . . . .” Id. (emphasis 

added). The use of the word “shall” in this rule expresses a mandatory intent. See Syl. Pt. 

2, in part, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969) (“The word ‘shall,’ 

in the absence of language in the statute showing a contrary intent . . . should be afforded a 

mandatory connotation.”). The word “shall” does not appear in Trial Court Rule 26.08(d), 

which merely authorizes the entry of case management orders; therefore, such case 

management orders are arguably permissive or discretionary, rather than mandatory. While 

prohibition does not lie to prevent an abuse of discretion by a trial court, upon reviewing the 

timeliness issue and whether the Panel exceed its legitimate powers in setting a Rule 12 

motion deadline, we find no error, as discussed infra. See Syl. Pt. 2, in part, State ex rel. 

Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will 

not issue to prevent a simple abuse of discretion by a trial court.”). 

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The petitioners also challenge the substance of the Panel’s forum non 

conveniens ruling. In this regard, we have held that “[a] circuit court’s decision to invoke 

the doctrine of forum non conveniens will not be reversed unless it is found that the circuit 

court abused its discretion.” Syl. Pt. 3, Cannelton Indus., Inc. v. Aetna Cas. & Sur. Co. of 

Am., 194 W.Va. 186, 460 S.E.2d 1 (1994).18 Carving out an exception to the general 

proposition that prohibition does not lie to review discretionary rulings,19 we have explained 

that 

[i]n the context of disputes over venue, such as dismissal for 

forum non conveniens . . . a writ of prohibition is an appropriate 

remedy “to resolve the issue of where venue for a civil action 

lies,” because “the issue of venue [has] the potential of placing 

a litigant at an unwarranted disadvantage in a pending action 

and [] relief by appeal would be inadequate.” State ex rel. 

Huffman v. Stephens, 206 W.Va. 501, 503, 526 S.E.2d 23, 25 

(1999); see also State ex rel. Riffle v. Ranson, 195 W.Va. 121, 

124, 464 S.E.2d 763, 766 (1995) (“In recent times in every case 

that has had a substantial legal issue regarding venue, we have 

recognized the importance of resolving the issue in an original 

action.”). 

State ex rel. Mylan, Inc. v. Zakaib, 227 W.Va. 641, 645, 713 S.E.2d 356, 360 (2011). With 

these standards in mind, we proceed to determine whether a writ of prohibition should be 

granted. 

18In Cannelton Industries, this Court discussed the common law doctrine of forum non 

conveniens. In 2007, the Legislature codified this doctrine in West Virginia Code § 56-1-1a. 

19See supra note 17. 

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III. Discussion 

A. Timeliness of Motion to Dismiss 

The petitioners challenge the timeliness of the respondents’ motion to dismiss 

for forum non conveniens. Under West Virginia Code §56-1-1a, a forum non conveniens 

motion is timely if it is filed “either concurrently or prior to the filing of . . . a motion 

pursuant to Rule twelve of the West Virginia Rules of Civil Procedure . . . .” The Panel 

found that the respondents’ motion was timely filed because it met the deadline for Rule 12 

motions set forth in its Case Management Order. See Franklin D. Cleckley, Robin Jean 

Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil 

Procedure, §12(b)(3)[4], at p. 373-75 (4th ed. 2012) (addressing forum non conveniens in 

context of motions to dismiss under Rule 12(b)(3)).20 

20Typically, we would not expect to see a Rule 12 motion deadline in litigation that 

had been pending, in part, for nearly two years at the time the Case Management Order was 

entered. But see In re: Digitek® Litigation, Apr. 2, 2010 Order, Mass Litigation Panel 

(dismissing claims of two plaintiffs from mass litigation on basis of forum non conveniens 

where complaints were filed approximately fifteen and eighteen months earlier). However, 

as can readily be seen from the factual recitation set forth above, prior to the attempted 

referral to the Panel in the fall of 2013, this litigation primarily involved two removals to 

federal court, including an appeal to the Fourth Circuit. Thereafter, the litigation was 

referred to the Panel after which the litigation involved the petitioners’ pursuit of a writ of 

prohibition in Mazzone I. Consequently, once this litigation was remanded to the Panel in 

May of 2014, following Mazzone I, the Panel plainly recognized the unique circumstances 

presented in this litigation, including the fact that the matter had not progressed very far 

despite the lapse of time since the filing of the first complaint. Although we also recognize 

these unique circumstances, we remind the Panel that its discretion and authority is not 

limitless. While “we fully intend to allow the supervising [Panel] judge to continue to 

fashion and implement various trial management plans . . . . this Court may choose to 

exercise its constitutional grant of powers if, and when, issues of constitutional or 

(continued...) 

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In Mazzone I, this Court expressed its “support [of] the Panel’s need to have 

some discretion in processing the numerous issues that necessarily flow from mass litigation 

cases.” 233 W.Va. at 474, 759 S.E.2d at 217. Recognizing the Panel’s “authority to 

implement procedural mechanisms to address the numerous individual and collective unique 

issues that are inherent in mass litigation[,]” we further stated that “[o]ur Rules of Civil 

Procedure provide a host of mechanisms for the Panel to use in efficiently processing mass 

litigation cases.” Id. In fact, we informed the Panel that “to the extent that some plaintiffs 

may be subject to dispositive motions[,]” it was “free to devise a scheme that permits the 

defendants to raise those issues and have them addressed separately[,]” which the Panel did 

in its Case Management Order. Id. Indeed, long before Mazzone I, this Court recognized 

that the 

management of [mass tort] cases cannot be accomplished 

without granting the trial courts assigned to these matters 

significant flexibility and leeway with regard to their handling 

of these cases. A critical component of that required flexibility 

is the opportunity for the trial court to continually reassess and 

evaluate what is required to advance the needs and rights of the 

parties within the constraints of the judicial system. Out of this 

need to deal with “mass litigation” cases in non-traditional and 

often innovative ways, TCR 26.01 was drafted and adopted.21 

20(...continued) 

overarching significance arise that demand immediate relief.” State ex rel. Mobil Corp. v. 

Gaughan, 211 W.Va. 106, 114, 563 S.E.2d 419, 427 (2002). We do not find such issues 

under the facts and circumstances of this litigation. 

21West Virginia Trial Court Rule 26.01 established the Mass Litigation Panel, and 

Trial Court Rules 26.01 through Rule 26.12 pertain to mass litigation. 

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State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 111, 563 S.E.2d 419, 424 (2002) 

(footnote added). 

In the case at bar, the Panel clearly evaluated the status of the Zoloft litigation 

during the scheduling/status conference that was held soon after the remand in Mazzone I. 

The information garnered during that conference led to the Panel’s entry of the Case 

Management Order six days later, which included a deadline for Rule 12 motions that 

resultantly extended the deadline for motions for forum non conveniens.22 W.Va.R.Civ.P. 

12. Indeed, the Panel has great discretion under our mass litigation rules23 to implement case 

management plans and orders–even where they may conflict with another rule or statute.24 

Accordingly, we find that the Panel had the authority to enter a case management order that 

established a deadline for Rule 12 motions. As such, the respondents’ motion, filed in 

conformance with the Case Management Order, was timely. 

Moreover, even if we were to assume, arguendo, that it was error, there is still 

no basis to issue the requested writ. In Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 

(1981), the trial court effectively extended the time period for a motion for a new trial filed 

22W.Va. Code § 56-1-1a(b).
 

23See supra notes 16, 20, and 21.
 

24West Virginia Trial Court Rule 26.12 provides, in part, that “[i]f these Rules conflict
 

with other rules or statutes, these rules shall apply[.]” 

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pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. The defendants 

challenged that ruling on the basis that another West Virginia Rule of Civil Procedure–Rule 

6–specifically precludes a trial court from extending the time for taking action under Rule 

59. In addressing this issue, this Court held: 

Where a trial court makes an erroneous ruling extending 

a time period under the Rules of Civil Procedure, and one of the 

parties relies on the ruling, such party will not be foreclosed 

from further pursuit of his claim because of this error. This is 

particularly true where the opposing party acquiesces or fails to 

object to the erroneous ruling at the time it was made. 

Bowman, 168 W.Va. 111, 282 S.E.2d 613, syl. pt. 1;25 see also Roberts v. Consolidation Coal 

Co., 208 W.Va. 218, 227, 539 S.E.2d 478, 487 (2000) (citing Bowman with approval). 

During oral argument, the petitioners conceded that they did not object to the inclusion of a 

25In Bowman, the Court relied upon Thompson v. Immigration and Naturalization 

Service, 375 U.S. 384 (1964), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 

U.S. 215 (1962). Both Thompson and Harris involved a challenge to the timeliness of an 

appeal where the trial court extended the time period under the rules of civil procedure for 

filing an appeal. In a recent five to four majority opinion, the United States Supreme Court 

overruled both Thompson and Harris “to the extent they purport to authorize an exception 

to a jurisdictional rule.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Clarifying the 

difference between time limit rules that are “jurisdictional,” versus those that are “claimsprocessing,” the Court noted its “longstanding treatment of statutory time limits for taking 

an appeal as jurisdictional[.]” Id. at 210. Because forum non conveniens presupposes a 

court’s jurisdiction, rather than conferring it, our holding in Bowman remains good law for 

our current purposes. See Mylan, 227 W.Va. at 643 n.1, 713 S.E.2d at 358 n.1 (“[I]t is 

generally recognized that a motion to dismiss on the basis of forum non conveniens 

presupposes that the court in which the action is filed . . . has jurisdiction . . . in which to hear 

the claims.”). 

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Rule 12 deadline in the Case Management Order.26 See W.Va.R.Civ.P. 12. In the absence 

of any objection, the respondents relied upon the Rule 12 deadline in the Case Management 

Order and filed their motion to dismiss pursuant to the order. Accordingly, even if the Panel 

erred in setting a Rule 12 deadline in its Case Management Order, under Bowman, the 

respondents’ motion to dismiss would still be timely filed. 168 W.Va. 111, 282 S.E.2d 613, 

syl. pt.1. 

B. Dismissal for forum non conveniens 

The petitioners assert that the Panel erred in dismissing twenty of the nonresident plaintiff families on the basis of forum non conveniens. They argue that the Panel’s 

ruling disregards the “letter and spirit” of Mazzone I, including directions that the Panel not 

substantively divide the petitioners. The petitioners further argue that the Panel erred in its 

consideration of the statutory factors governing forum non conveniens under West Virginia 

Code § 56-1-1a by failing to give any deference to their choice of forum and by crediting 

respondents’ unsupported factual allegations in its evaluation of certain of these factors, all 

to the petitioners’ prejudice. 

26We observe that the petitioners had two weeks during which they could have 

objected to the Panel’s Case Management Order. 

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Conversely, the respondents assert that following the general remand in 

Mazzone I, the Panel appropriately exercised its discretion in managing the pretrial aspects 

of the litigation, including its resolution of the respondents’ motions as to certain plaintiff 

families’ claims based on the facts particular to those families and within the framework set 

by this Court and under West Virginia law. The respondents also argue that the Panel 

correctly evaluated each of the eight statutorily mandated factors in making its forum non 

conveniens ruling. 

Our focus in Mazzone I was the Panel’s interpretation and application of Rule 

3(a) of the West Virginia Rules of Civil Procedure for the purpose of converting the two civil 

actions referred to the Panel into twenty-five separate civil actions. Our discussion of 

permissive joinder in Mazzone I was directly related to our analysis of the intent and purpose 

of Rule 3(a), an administrative fee-collecting rule. We also recognized that “to the extent 

that some plaintiffs may be subject to dispositive motions[,]”27 the Panel was “free to devise 

a scheme that permits the defendants to raise those issues and have them addressed 

separately.” Mazzone I, 233 W.Va. at 474, 759 S.E.2d at 217 (emphasis added). Clearly, 

a motion to dismiss is a dispositive motion.28 And, while we cautioned the Panel against a 

27The Court gave as examples motions based on statutes of limitation or summary 

judgment. Mazzone I, 233 W.Va. at 474, 759 S.E.2d at 217. 

28 See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 775, 

461 S.E.2d 516, 521 (1995) (referring to defendants’ motion to dismiss as “dispositive 

(continued...) 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

division of the parties as it had done under its misinterpretation of Rule 3(a), “[f]orum non 

conveniens is not a substantive right of the parties, but a procedural rule of the forum.” State 

ex rel. North River Ins. Co. v. Chafin, 233 W.Va. 289, 294, 758 S.E.2d 109, 114 (2014) 

(citing Am. Dredging Co. v. Miller, 510 U.S. 443, 454 n.4) (emphasis added). 

In the context of our Rule 3(a) analysis, we also found that “[t]he claims 

alleged in the complaints are logically related and arise from the same transactions or 

occurrences, i.e., the production, distribution, and promotion of Zoloft[,]” thereby satisfying 

permissive joinder under Rule 20(a) of the West Virginia Rules of Civil Procedure.29 

Mazzone I, 233 W.Va. at 464, 759 S.E.2d at 207. Permissive joinder of parties under Rule 

20 “is to be liberally construed.” Anderson v. McDonald, 170 W.Va. 56, 60, 289 S.E.2d 729, 

734 (1982). Thus, we concluded in Mazzone I that if we had “sought to achieve the Panel’s 

28(...continued) 

pretrial motion[]”); Zaleski v. West Virginia Mut. Ins. Co., 224 W.Va. 544, 551, 687 S.E.2d 

123, 130 (2009) (“[A]t no time did this Court make a dispositive ruling ‘granting’ the 

Mutual’s motion to dismiss.”) (emphasis added); Randall v. Fairmont City Police Dep’t, 186 

W.Va. 336, 339, 412 S.E.2d 737, 740 (1991) (“The dispositive procedural issue, however, 

is the propriety of the dismissal of the action . . . .”) (emphasis added). 

29West Virginia Rule of Civil Procedure 20(a) provides, in part, that 

[a]ll persons may join in one action as plaintiffs if they 

assert any right to relief jointly, severally, or in the alternative in 

respect of or arising out of the same transaction, occurrence, or 

series of transactions or occurrences and if any question of law 

or fact common to all these persons will arise in the action. 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

interpretation of Rule 3(a), we necessarily would have had to abolish Rule 20(a).” 233 

W.Va. at 469, 759 S.E.2d at 212. 

Similarly, we believe that the petitioners’ interpretation of Mazzone I as 

precluding the Panel’s forum non conveniens ruling would essentially render West Virginia 

Code § 56-1-1a a nullity in pharmaceutically-related litigation. In other words, any drug will 

necessarily be “produc[ed], distribut[ed], and promot[ed]” by the drug’s manufacturer. 233 

W.Va. at 464, 759 S.E.2d at 207. Persons alleging similar complaints arising from the 

ingestion of a drug will undoubtedly have common questions of fact concerning “the design 

of [the drug], the [manufacturer’s] knowledge of the drug’s safety, and [its] representations 

about its safety.” Id. at 465, 759 S.E.2d at 208. Consequently, the ability to meet the liberal 

standard for Rule 20(a) does not correspondingly guarantee the existence of a convenient 

forum, as is apparent under the facts and circumstances of the Zoloft litigation.30 

30Other than citing the spirit and letter of Mazzone I, the petitioners have not provided 

any legal authority demonstrating the erroneous application of forum non conveniens 

principles in this matter beyond their challenge to the timeliness of Pfizer’s motion to dismiss 

and to the Panel’s analysis of the statutory factors under West Virginia Code § 56-1-1a. We 

note that the nine non-resident plaintiff families named in the third Zoloft complaint have not 

challenged their dismissal on the basis of forum non conveniens, which Pfizer’s counsel 

pointed out during oral argument. In the absence of any responsive argument or explanation 

to the point raised, we are left with an implicit concession that permissively joined plaintiffs 

can be dismissed on that basis. 

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We recognize that permissive joinder under Rule 20(a) is designed to expedite 

litigation and relieve the burden on the courts and the litigants by allowing a single suit to 

determine the rights and liabilities of the parties. This purpose is necessarily attenuated when 

considered in the context of multiple parties from multiple states who have no connection to 

West Virginia and whose causes of action did not arise in West Virginia. While there can 

be factors that favor joinder, we cannot ignore the countervailing concerns associated with 

litigating claims in a convenient forum. 

The Panel acquired sufficient information from the parties to recognize the 

difficulties and complexities that would most assuredly arise through litigating the claims of 

twenty-two non-resident plaintiff families from sixteen different states whose causes of 

action arose in those other states. As we have previously held, 

[t]he doctrine [of forum non conveniens] accords a preference 

to the plaintiff’s choice of forum, but the defendant may 

overcome this preference by demonstrating that the forum has 

only a slight nexus to the subject matter of the suit and that 

another available forum exists which would enable the case to 

be tried substantially more inexpensively and expeditiously. 

Syl. Pt. 3, in part, Norfolk and Western Ry. Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 

(1990).31 Accordingly, after considering all of the above in conjunction with the broad 

discretion given to the Panel “to continually reassess and evaluate what is required to 

31See supra note 18.
 

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advance the needs and rights of the parties within the constraints of the judicial system[,]”32 

we conclude that under the unique circumstances of this particular litigation, the Panel 

properly entertained the respondents’ motion to dismiss for forum non conveniens.33 

Finally, we turn to the substance of the Panel’s forum non conveniens ruling. 

West Virginia Code § 56-1-1a provides, in relevant part, as follows: 

(a) In any civil action if a court of this state, upon a timely 

written motion of a party, finds that in the interest of justice and 

for the convenience of the parties a claim or action would be 

more properly heard in a forum outside this State, the court 

shall decline to exercise jurisdiction under the doctrine of forum 

non conveniens and shall stay or dismiss the claim or action, or 

dismiss any plaintiff: Provided, That the plaintiff’s choice of a 

forum is entitled to great deference, but this preference may be 

diminished when the plaintiff is a nonresident and the cause of 

action did not arise in this State. In determining whether to 

grant a motion to stay or dismiss an action, or dismiss any 

plaintiff under the doctrine of forum non conveniens, the court 

shall consider: 

(1) Whether an alternate forum exists in which the claim or 

action may be tried; 

(2) Whether maintenance of the claim or action in the courts of 

this State would work a substantial injustice to the moving party; 

32Mobil Corp., 211 W.Va. at 111, 563 S.E.2d at 424. 

33We do not undertake in this opinion to announce any new point of law. Permissive 

joinder and forum non conveniens will necessarily be assessed under the peculiar facts and 

circumstances of each case. 

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(3) Whether the alternate forum, as a result of the submission of 

the parties or otherwise, can exercise jurisdiction over all the 

defendants properly joined to the plaintiff’s claim; 

(4) The state in which the plaintiff(s) reside; 

(5) The state in which the cause of action accrued; 

(6) Whether the balance of the private interests of the parties 

and the public interest of the State predominate in favor of the 

claim or action being brought in an alternate forum, which shall 

include consideration of the extent to which an injury or death 

resulted from acts or omissions that occurred in this State. 

Factors relevant to the private interests of the parties include, 

but are not limited to, the relative ease of access to sources of 

proof; availability of compulsory process for attendance of 

unwilling witnesses; the cost of obtaining attendance of willing 

witnesses; possibility of a view of the premises, if a view would 

be appropriate to the action; and all other practical problems that 

make trial of a case easy, expeditious and inexpensive. Factors 

relevant to the public interest of the State include, but are not 

limited to, the administrative difficulties flowing from court 

congestion; the interest in having localized controversies 

decided within the State; the avoidance of unnecessaryproblems 

in conflict of laws, or in the application of foreign law; and the 

unfairness of burdening citizens in an unrelated forum with jury 

duty; 

(7) Whether not granting the stay or dismissal would result in 

unreasonable duplication or proliferation of litigation; and 

(8) Whether the alternate forum provides a remedy. 

Id. (emphasis added). 

In undertaking a forum non conveniens analysis, we have held that circuit 

courts “must consider the eight factors enumerated in West Virginia Code § 56-1-1a . . . as 

21
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a means of determining whether, in the interest of justice and for the convenience of the 

parties, a claim or action should be . . . dismissed on the basis of forum non conveniens.” 

Syl. Pt. 5, in part, Mylan, 227 W.Va. at 642-43 357-58, 713 S.E.2d at 357-58. We further 

held in Mylan that “[i]n all decisions on motions made pursuant to West Virginia Code § 56­

1-1a . . . courts must state findings of fact and conclusions of law as to each of the eight 

factors listed for consideration under subsection (a) of that statute.” Id., 227 W.Va. at 643, 

713 S.E.2d at 358, syl. pt. 6, in part. We have also recognized that “[t]he weight assigned 

to each factor varies because each case turns on its own unique facts.” North River, 233 

W.Va. at 295, 758 S.E.2d at 115. We find that the Panel has entered a thorough order 

addressing these statutory factors as required by Mylan. 

Through their challenge to the substance of the Panel’s forum non conveniens 

ruling, the petitioners make several unavailing arguments. While theygenerallymaintain that 

the Panel gave no deference to their choice of forum and misapplied these eight statutory 

factors, they focus on the second statutory factor (whether the maintenance of their claims 

in West Virginia would work a substantial injustice on the respondents), the sixth factor 

(balancing the public interest of the state and the private interests of the parties), and the 

seventh factor (unreasonable duplication and proliferation of litigation). We will, likewise, 

focus our discussion on these particular statutory factors. Before doing so, however, we will 

first address the petitioners’ choice of forum. 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As non-residents whose causes of action did not arise in West Virginia, the 

petitioners concede that the deference accorded their choice of forum may be diminished. 

They argue, however, that the Panel gave no deference to their choice of forum and did not 

consider the effect of the West Virginia plaintiffs’ choice of forum, which is entitled to great 

deference.34 In disagreement, the respondents assert that the Panel correctly observed that 

the deference afforded to a plaintiff’s choice of forum “may be diminished when the plaintiff 

is a nonresident and the cause of action did not arise in this State.” W.Va. Code § 56-1-1a(a). 

The Panel found it indisputable that all of the petitioners reside–and their causes of action 

arose–in states other than West Virginia. Consequently, the Panel concluded that their 

“choice of forum is entitled to less deference.”35 We find no error in the Panel’s conclusions 

in this regard. 

Turning to the second statutory factor, the petitioners assert that the Panel 

relied upon the respondents’ unsupported factual allegations in reaching its conclusion that 

the petitioners have no connection to West Virginia and that trying their claims in West 

34Although the petitioners argue their choice of forum is entitled to deference because 

their claims are joined to the claims of the West Virginia families, the Panel noted that Rule 

20(a) provides that “judgment may be given for one or more of the plaintiffs[.]” 

35Even if the Panel had not given any deference to the petitioners’ choice of forum, 

it might not necessarily have been error. See Mylan, 227 W.Va. at 648, 713 S.E.2d at 363 

(“Nothing in the statute requires a court to diminish, or abolish altogether, the deference it 

normally affords a plaintiff’s choice of forum. Rather, it permits courts to do so, when the 

precedent factors have been met.”). 

23
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Virginia would result in “substantial injustice.” See W.Va. Code § 56-1-1a(a)(2). They posit 

that their dismissal at this point in the litigation will result in extreme prejudice to them, and 

that the connection between their claims and West Virginia is the fact that they have been 

litigating their claims in West Virginia; that more plaintiffs are from West Virginia than from 

any other state;36 and that the respondents conduct a substantial amount of business in West 

Virginia through marketing and selling Zoloft. As for the Panel’s conclusion that interstate 

discovery would be “complicated and expensive,” the petitioners contend this conclusion is 

inaccurate and is based on the respondents’ “flimsy allegations.”37 

Conversely, the respondents assert that the Panel based its factual findings on 

the record and did not err in acknowledging that the process of obtaining interstate discovery 

through letters rogatory is more complicated and expensive than obtaining intrastate 

discovery through ordinary subpoenas. The respondents observe that because the subject 

36This statement is misleading to the extent it implies that the majority of the plaintiffs 

are West Virginia residents when, in fact, the overwhelming majority of plaintiffs are from 

states other than West Virginia. Of the twenty-five plaintiff families in the Zoloft litigation 

at the time of the remand in Mazzone I, two were residents of West Virginia, a third had ties 

to West Virginia, and the remaining twenty-two resided in sixteen different states. 

37The petitioners also cite the reasoning of the Wayne CountyCircuit Court in its order 

denying Pfizer’s motion to dismiss the New York plaintiff family on the basis of forum non 

conveniens, including its conclusion that treating physicians rarely appear in mass tort cases 

and that the consolidation of the plaintiff families avoids unnecessary costs and delays. The 

circuit court’s ruling is not binding upon this Court. Further, it does not warrant a finding 

that the Panel either misinterpreted West Virginia Code § 56-1-1a or abused its discretion by 

its application of that statute, particularly since this litigation was in a different posture at the 

time of the Panel’s forum non conveniens ruling. 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

plaintiff families are from sixteen states, their respective treating physicians, prescribing 

physicians, dispensing pharmacists, and other third-party witnesses are located in those, and 

potentially other, states. Citing the Panel’s lack of subpoena power to compel the attendance 

of these witnesses at depositions or trial, or to compel the production of documents in the 

possession of these non-party witnesses, the respondents assert that the parties will bear the 

burden and expense of filing separate individual lawsuits in the home state of each non-party 

witness to secure subpoena power from the courts in those states. The respondents further 

note that even where witnesses are willing, the costs associated with obtaining their 

attendance at deposition and trial “would not be insubstantial and would involve significant 

travel expense.” 

Echoing the respondents’ arguments concerning the second statutory factor, 

the Panel found that “West Virginia’s lack of connection to this litigation coupled with the 

difficultyof compelling or voluntarilysecuring witnesses for deposition and trial would work 

a substantial injustice to both Plaintiffs and Defendants[.]” As the Panel correctly observed, 

all of the evidence, witnesses, and locations relevant to the petitioners’ claims will be located 

in their respective home states. Confirming the respondents’ arguments, the Panel cited its 

lack of subpoena power to compel the attendance of non-party witnesses at deposition or trial 

or to compel the production of documents in the possession of non-parties, a fact the 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

petitioners do not dispute.38 The Panel further found that the considerable distance between 

West Virginia and the petitioners’ home states would render interstate discovery and 

procuring the voluntary attendance of non-party witnesses for depositions and trial more 

complicated and expensive. These factors–coupled with West Virginia’s lack of connection 

to the non-resident plaintiffs’ claims–were found bythe Panel to “work a substantial injustice 

to both Plaintiffs and Defendants.” 

The sixth statutory factor balances the public interest of the state against the 

private interest of the parties, including a “consideration of the extent to which an injury or 

death resulted from acts or omissions that occurred in this State.” W.Va. Code § 56-1­

1a(a)(6). The petitioners argue that litigating the claims of the remaining plaintiff families 

in West Virginia, including two West Virginia families, favors keeping all plaintiff families 

joined as it would impose no additional burden on West Virginia judges or juries. In 

complete disagreement, the respondents assert that the petitioners’ argument “rests on the 

unsupportable premise that trying the claims of twenty-five Plaintiff Families will take no 

more time and no more attention from citizens called for jury duty or West Virginia judges, 

than trying the claims of five Plaintiff Families.” 

38By way of illustration, the supplemental appendix record contains a preliminary 

witness list for a few of the plaintiff families. There are fifteen healthcare providers located 

in the states of North Carolina and South Carolina listed for one plaintiff family, and fourteen 

healthcare providers located in the states of California and Oklahoma listed for another 

plaintiff family. 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As indicated above, the factors relevant to private interests of the parties 

include 

the relative ease of access to sources of proof; availability of 

compulsory process for attendance of unwilling witnesses; the 

cost of obtaining attendance of willing witnesses; possibility of 

a view of the premises, if a view would be appropriate to the 

action; and all other practical problems that make trial of a case 

easy, expeditious and inexpensive. 

W.Va. Code § 56-1-1a(a)(6). In weighing these particular considerations, the Panel made 

findings similar to those it made concerning the second factor, after which it concluded that 

each of the “private interests weighs in favor of dismissal” and “favors litigation in the 

subject Plaintiff Families’ home states where a significant amount of such proof is located.” 

The sixth statutory factor also requires the consideration of the public interest 

of this state, including “the administrative difficulties flowing from court congestion; the 

interest in having localized controversies decided within the State; the avoidance of 

unnecessary problems in conflict of laws, or in the application of foreign law; and the 

unfairness of burdening citizens in an unrelated forum with jury duty[.]” W.Va. Code § 56­

1-1a(a)(6). The Panel cited the administrative difficulties flowing from court congestion 

associated with trying the claims of twenty-two non-resident plaintiff families in West 

Virginia against non-resident defendants. Another public interest concern cited by the Panel 

was the unreasonableness of imposing jury duty on West Virginia citizens who would be 

required to devote significant time to complicated issues involving each plaintiff mother’s 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

alleged ingestion of Zoloft and the alleged resultant birth defects to the non-resident minor 

plaintiffs. Recognizing that West Virginia law cannot govern the petitioners’ claims because 

their alleged injuries arose in other states, the Panel would be required to the apply the laws 

of sixteen different states. Thus, the Panel acknowledged the conspicuous advantages to 

conducting trials in the petitioners’ home states where the courts are familiar with their 

respective state’s laws. After balancing the petitioners’ private interests against the state’s 

public interests, the Panel concluded that the public interests of the state predominate in favor 

of the petitioners bringing their claims in their home states.39 

Turning to the duplication or proliferation of litigation–the seventh statutory 

factor40–the petitioners assert that the Panel failed to give adequate weight to the fact that 

they have been litigating their properly joined claims for two years, describing discovery as 

being “far along.”41 The petitioners contend that forcing them to re-file in their home states 

39In this regard, the Panel found that “the subject Plaintiff Families’ respective home 

states have a substantial interest in resolving disputes involving their residents who were 

allegedly injured in those states by the prescription and ingestion of a medication therein.” 

40W.Va. Code § 56-1-1a(a)(7). 

41During oral argument, the respondents’ counsel stated that as of the time they filed 

their motion to dismiss before the Panel, only minimal discovery has been directed to the 

petitioners. The respondents’ counsel also stated that Pfizer had produced the same three 

million pages of documents in every court where Zoloft litigation is pending and that 

seventeen depositions had been taken of current and former Pfizer employees, which were 

cross-noticed in the other courts from the federal multi-district litigation. All counsel agree 

that an extraordinary amount of discovery remains to be done. 

28 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

will mean that they will start at “ground zero,” resulting in the duplication and proliferation 

of litigation. Disagreeing with the petitioners’ “ground zero” prediction, the respondents 

assert that any plaintiff family who re-files in their home state will have access to the 

significant discovery that Pfizer has already produced. Further, the respondents represent 

that the initial discovery directed toward Pfizer, which has been completed thus far in similar 

Zoloft claims pending in the federal multi-district litigation in Pennsylvania, as well as in 

eight other state courts, is readily transferrable to any re-filed proceeding in the respective 

home states of the petitioners. 

Upon its consideration of the seventh statutory factor, the Panel agreed with 

the respondents, describing the discovery conducted thus far as being extensive with regard 

to the respondents but only in its initial stages with regard to the plaintiff families. The Panel 

further agreed that all discovery conducted thus far is “readily transferrable to any re-filed 

proceeding in a subject Plaintiff Family’s home state.” Observing that none of the 

petitioners’ claims have been adjudicated on the merits, the Panel found there would be no 

“unnecessary re-litigation of issues.” Based on the respondents’ representation that the 

parties and courts involved in similar Zoloft litigation42 have been coordinating their efforts 

in terms of discovery and other pretrial matters, the Panel concluded that the dismissal of the 

42This is a reference to the federal multi-district litigation pending in Pennsylvania, 

as well as the Zoloft litigation pending in other state courts. 

29 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

petitioners “will not significantly expand the scope or geographical breadth of the Zoloft 

litigation.”43 

Based upon our consideration of all of the above, we find no error in the 

Panel’s decision to dismiss the twenty non-resident plaintiff families on the basis of forum 

non conveniens under the particular facts, circumstances, and procedural history of this 

litigation. West Virginia has no real interest in trying non-resident plaintiffs’ claims against 

non-resident defendants involving causes of action that accrued in states other than West 

Virginia. Because the petitioners’ claims arose in other states, their cases can “be tried 

substantially more inexpensively and expeditiously” in those other states where the sources 

of proof will be more easily accessible. Syl. Pt. 3, in part, Tsapis, 184 W.Va. 231, 400 

S.E.2d 239. Moreover, the applicable and governing law in those other states is more readily 

applied by the courts of those states. Importantly, the judges and jurors in the petitioners’ 

home states would not be impositioned byhaving to determine disputes involving individuals 

who allegedly sustained injuries while residing in those states. Under the Hoover factors,44 

we find no ground to warrant the issuance of a writ of prohibition. 

43The petitioners do not challenge the Panel’s ruling with respect to the eighth 

statutory factor–whether the alternate forum provides a remedy. As discussed previously, 

the Panel denied the respondents’ motion to dismiss two of the non-resident plaintiff families 

after determining that there was no alternative forum in Texas and Michigan. Because the 

petitioners do not specifically challenge the Panel’s rulings on the remaining statutory 

factors, they will not be addressed. 

44Syl. Pt. 4, Hoover, 199 W.Va. 12, 483 S.E.2d 12. 

30 
 

 

 

 

III. Conclusion 

For the reasons stated above, there is no basis to prevent the Panel from 

enforcing its dismissal order entered on October 21, 2014. Accordingly, the writ of 

prohibition is denied. 

Writ denied. 

31