1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0100p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

MARYE WAHL, 

Plaintiff-Appellant, 

v. 

GENERAL ELECTRIC COMPANY; GE HEALTHCARE;

GE HEALTHCARE AS; GE HEALTHCARE INC., 

Defendants-Appellees. 

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No. 13-6622 

Appeal from the United States District Court 

for the Middle District of Tennessee at Nashville. 

No. 3:13-cv-00329—Aleta Arthur Trauger, District Judge. 

Argued: August 1, 2014 

Decided and Filed: May 22, 2015 

Before: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*

_________________ 

COUNSEL 

ARGUED: Kenneth J. Brennan, TORHOERMAN LAW, LLC, Collinsville, Illinois, for 

Appellant. Dwight E. Tarwater, PAINE, TARWATER, BICKERS, LLP, Knoxville, Tennessee, 

for Appellee. ON BRIEF: Kenneth J. Brennan, TORHOERMAN LAW, LLC, Collinsville, 

Illinois, for Appellant. Dwight E. Tarwater, Taylor A. Williams, PAINE, TARWATER, 

BICKERS, LLP, Knoxville, Tennessee, for Appellee. 

 *

The Honorable Denise Page Hood, District Judge for the United States District Court for the Eastern 

District of Michigan, sitting by designation. 

>
No. 13-6622 Wahl v. General Electric Co., et al. Page 2

_________________ 

OPINION

_________________ 

BOGGS, Circuit Judge. Plaintiff-Appellant Marye Wahl appeals the district court’s grant 

of summary judgment to Defendant-Appellee General Electric (GE) in her personal-injury action 

arising out of the development of a rare and serious disease following the administration of one 

of GE’s drugs. The district court granted the defendant’s motion for summary judgment based 

on Tennessee’s statute of repose. For the reasons below, we affirm the district court’s grant of 

summary judgment. 

I 

Defendant-Appellee General Electric manufactures Omniscan, a gadolinium-based 

contrast agent approved by the FDA. The administration of Omniscan has been associated in 

some patients with the development of nephrogenic systemic fibrosis (NSF). NSF, “a 

progressive fibrotic disease affecting the tissues and organs with no known cure,” In re 

Gadolinium-Based Contrast Agents Products Liab. Litig., MDL No. 1909 2010 WL 1796334, at 

*1 (N.D. Ohio May 4, 2010), op. mod. on reconsideration, 2010 WL 5173568 (N.D. Ohio June 

18, 2010), is a rare and deadly condition that leads to the hardening (fibrosis) of the kidneys and 

is usually seen in patients with severe kidney disease following exposure to gadolinium. 

Omniscan was administered to Wahl for two MRIs she received in Nashville, Tennessee, 

in May and November 2006. In May 2007, about one year after Wahl’s first administration of 

Omniscan, she displayed the first symptoms of NSF. She was officially diagnosed with NSF in 

October 2010. 

Wahl is a resident of and was treated and diagnosed in Tennessee. However, the Judicial 

Panel on Multidistrict Litigation consolidated all pre-trial litigation of Omniscan-related cases in 

the United States District Court for the Northern District of Ohio. In re: Gadolinium Contrast 

Dyes Prods. Liab. Litig., 536 F. Supp. 2d 1380, 1382 (J.P.M.L. 2008) (MDL 1909). Although 

plaintiffs usually file complaints destined for an MDL-designated district in their home district 

and allow the judge to transfer their case for pre-trial litigation, this MDL panel issued a “Direct 
No. 13-6622 Wahl v. General Electric Co., et al. Page 3

Filing Order” that permitted plaintiffs to avoid the seemingly inefficient step of filing-andtransfer required in the absence of such an order. Accordingly, in May 2011, Wahl filed a 

complaint in the Northern District of Ohio alleging injury from the administration of Omniscan 

to her. With the agreement of both Wahl and GE, the MDL judge in Ohio transferred the case 

almost two years later, in April 2013, to the United States District Court for the Middle District 

of Tennessee, “the district court of proper venue.” 

Shortly after the transfer to the Middle District of Tennessee, GE moved for summary 

judgment, arguing that, since Wahl received her MRIs in 2006, and since all Omniscan doses 

produced from 2004 to 2006 were marked with expiration dates two years after manufacture, the 

Omniscan administered to her must have expired no later than 2008. GE further argued that the 

Tennessee Products Liability Act’s (TPLA) statute of repose, which requires all suits to be 

instituted within one year of the expiration date appearing on a product’s packaging, barred 

Wahl’s suit because all of her claims expired, at the latest, on November 1, 2009—almost two 

years before she filed her complaint. Wahl argued that, for choice-of-law reasons, the Tennessee 

statute did not apply. The district court granted GE’s motion. In its opinion, it applied 

Tennessee choice-of-law rules, which required the application of Tennessee substantive law, 

including the statute of repose. Wahl timely appealed. 

II 

 We review the district court’s determination regarding choice of law de novo. See Salve 

Regina Coll. v. Russell, 499 U.S. 225, 231 (1991); Charash v. Oberlin Coll., 14 F.3d 291, 296 

(6th Cir. 1994). 

 We also review the district court’s grant of summary judgment de novo. See Rannals v. 

Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001). Summary judgment should be awarded 

only when “there is no genuine issue of material fact and the moving party is entitled to a 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether there exists a genuine 

issue of material fact, the court must view all evidence in the light most favorable to the 

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986). 
No. 13-6622 Wahl v. General Electric Co., et al. Page 4

III 

On appeal, Wahl advances three arguments. First, she argues that Ohio choice-of-law 

principles must guide the determination of substantive law in this case because federal law 

requires the use of the choice-of-law principles of the state of the transferor court. Wahl claims 

that, because she availed herself of the procedural option of filing directly with the MDL court in 

Ohio, once the MDL court subsequently transferred the case to Tennessee the MDL court is the 

transferor court. 

 Second, Wahl argues that, under Ohio choice-of-law principles, the Tennessee statute of 

repose, which effectively extinguished her vested cause of action before she could discover it, 

could not be applied because it violates Ohio public policy, as articulated in the Ohio 

Constitution’s Right to Remedy Clause. 

 Finally, Wahl argues that New Jersey substantive law must be applied under the choiceof-law rules of either Tennessee or Ohio and that the motion for summary judgment would be 

defeated because there is no statute of repose under New Jersey law. The Restatement (Second) 

of Conflict of Laws informs the relevant law both of Ohio and of Tennessee. 

 We affirm the judgment of the district court because the choice-of-law rules of Tennessee 

are the correct rules to govern this case. In addition, under both the Tennessee and Ohio choiceof-law regimes, Tennessee substantive law, including its statute of repose, applies to this case, 

despite the Right to Remedy Clause in the Ohio Constitution. New Jersey law does not apply. 

A 

 According to the typical rule, when a diversity case is transferred from one federal 

district court to another, substantive law governing the jurisdiction of the transferor court 

controls. This ordinary rule appears strict and inflexible. But it does not apply to cases of directfiled, later-transferred MDL suits such as the present case. The United States District Court for 

the Northern District of Ohio was not a transferor court, as defined by the doctrine: At the 

conclusion of pretrial litigation, Wahl and GE jointly requested transfer to the Middle District of 

Tennessee where, but for the MDL, Wahl would have filed in the first place. Accordingly, 

Tennessee choice-of-law rules apply in this case. 
No. 13-6622 Wahl v. General Electric Co., et al. Page 5

1 

 A case typically changes venue because the plaintiff files in the forum of his choice and 

then, “[f]or the convenience of parties and witnesses, [and] in the interest of justice,” the district 

court transfers the action to another district “where it might have been brought or . . . to which all 

parties have consented.” 28 U.S.C. § 1404(a). Typically, when a case heard in diversity is 

transferred from one federal district court to another as a change of venue, the substantive law of 

the forum in which the plaintiff initially filed (the transferor court) continues as the governing 

law following the transfer to the court that receives it (the transferee court). The case law 

concerning transfer and choice of law is grounded in the Erie doctrine. 

 In Erie Railroad Co. v. Tompkins, 304 U.S 64 (1938), the United States Supreme Court 

mandated “that a federal court sitting in diversity apply the substantive law of the forum state, 

absent a federal statutory or constitutional directive to the contrary.” Russell, 499 U.S. at 226 

(citing Erie, 304 U.S. at 78). The Supreme Court applied the Erie doctrine to the transfer context 

in Van Dusen v. Barrack, 376 U.S. 612 (1964). Van Dusen arose out of the crash of a 

commercial airliner, intended to fly from Boston to Philadelphia, into Boston Harbor. Id. at 613. 

The plaintiffs brought personal-injury and wrongful-death actions in United States District Court 

for the Eastern District of Pennsylvania. Defendants, petitioners in the Supreme Court, “moved 

under [28 U.S.C.] § 1404(a) to transfer these actions to the District of Massachusetts, where it 

was alleged that most of the witnesses resided and where over 100 other actions [were] pending.” 

Id. at 614. The laws governing recovery for wrongful death in Pennsylvania and Massachusetts 

differed significantly. Id. at 627. 

 The Supreme Court observed that “the most convenient forum is frequently the place 

where the cause of action arose[,] that the conflict-of-laws rules of other States may often refer to 

the substantive rules of the more convenient forum,” id. at 628, and that “difficulties . . . would 

arise if a change of venue, granted at the motion of a defendant, were to result in a change of 

law,” id. at 629. The Supreme Court concluded that “[t]here is nothing . . . in the language or 

policy of § 1404(a) to justify its use by defendants to defeat the advantages accruing to plaintiffs 

who have chosen a forum which, although it was inconvenient, was a proper venue.” Id. at 633-

34; see id. at 635 (observing that the legislative history of § 1404(a) “supports the view that § 
No. 13-6622 Wahl v. General Electric Co., et al. Page 6

1404(a) was not designed to narrow the plaintiff’s venue privilege or to defeat the state-law 

advantages that might accrue from the exercise of this venue privilege but rather the provision 

was simply to counteract the inconveniences that flowed from the venue statutes by permitting 

transfer to a convenient federal court”). 

 Finally, the Supreme Court observed, this interpretation “fully accords with and is 

supported by the policy underlying Erie”: 

for the same transaction[,] the accident of a suit by a non-resident litigant in a 

federal court instead of in a State court a block away, should not lead to a 

substantially different result. Applying this analysis to § 1404(a), we should 

ensure that the accident of federal diversity jurisdiction does not enable a party to 

utilize a transfer to achieve a result in federal court which could not have been 

achieved in the courts of the State where the action was filed. 

Id. at 637–38 (internal quotation marks omitted); cf. Hanna v. Plumer, 380 U.S. 460, 468 (1965) 

(observing that Erie has two aims: the “discouragement of forum-shopping and avoidance of 

inequitable administration of the laws”). 

 The Supreme Court applied Van Dusen in Ferens v. John Deere Co., 494 U.S. 516, 530 

(1990). The Ferens plaintiff, though from Pennsylvania, originally filed his suit in Mississippi to 

circumvent Pennsylvania’s statute of limitations. Having successfully filed, he then sought, and 

received, a transfer back to Pennsylvania where, the Supreme Court ruled, in accordance with its 

decision in Van Dusen, Mississippi substantive law was to apply. Although, as the Supreme 

Court acknowledged, it might “seem too generous because it allows the [plaintiff] to have both 

[his] choice of law and [his] choice of forum,” the Court decided that the benefits of applying a 

strict per se rule outweighed the fact that such a rule might not be appropriate in all cases. Id. at 

531. 

2 

 The policy that underlies Erie, Van Dusen, and even Ferens demands uniform federal and 

state outcomes: that the accident of a suit in federal instead of state court should not alter the 

result. This policy applies to the present case. Applying the Erie policy analysis to § 1404(a), 

we ensure that the accident of federal diversity jurisdiction does not enable a party to utilize a 
No. 13-6622 Wahl v. General Electric Co., et al. Page 7

transfer to achieve a result in federal court that could not have been achieved in the courts of the 

state where the action was filed. 

 In both Van Dusen and Ferens, unlike in the present case, the plaintiff filed in district 

court as an ordinary (single-district) suit, seeking to apply the substantive law and the choice-oflaw principles of the forum in which the court sat. Further, each plaintiff’s choice of initial 

forum was appropriate as to both jurisdiction and venue. 

 Direct-filed MDL suits that are then transferred to a more convenient forum for trial are 

an exception to the ordinary rule modeled in Van Dusen and Ferens. This must be so, or else 

every district court receiving a direct-filed MDL suit would be bound to apply the choice of law 

principles of the MDL forum. In effect, the accident of bureaucratic convenience would elevate 

the law of the MDL forum. 

 No court of appeals and few district courts have ruled directly on the issue of choice of 

law following transfer of a direct-filed MDL case. Most of the courts that have confronted this 

issue have decided that it did not make sense to apply the Van Dusen transferor-transferee rule 

mechanically. The first case not to apply Van Dusen’s rule to a direct-filed MDL case was In re 

Yasmin. The district court in that case held that the only sensible option was to treat out-of-state, 

direct-filed suits as if they had been transferred from a court “sitting in the state where the case 

originated.” No. 3:09-md-02100-DRH-PMF, 2011 WL 1375011, at *6 (S.D. Ill, Apr. 12, 2011). 

 Since Yasmin, although several district courts have mechanically applied the Van Dusen 

rule, the weight of authority has adopted Yasmin’s rule. See, e.g., Sanchez v. Bos. Scientific 

Corp., No. 2:12-CV-05762, 2014 WL 202787, at *4 (S.D. W. Va., Jan. 17, 2014) (“For cases 

that originate elsewhere and are directly filed into the MDL, I will follow the better-reasoned 

authority that applies the choice-of-law rules of the originating jurisdiction . . . .”); In Re Avandia 

Mktg., No. 07-MD-01871, 2011 WL 4018259, at *1 n.5 (E.D. Pa. Sept. 7, 2011) (citing Yasmin 

for the proposition “that cases that originated outside of the court’s judicial district and that were 

filed directly into the MDL would be treated as if they were transferred from a judicial district 

sitting in the state where the case originated,” but “reserv[ing] for another day the resolution of” 

which “law should govern cases filed directly in the MDL by plaintiffs from states other than” 

the one in which the court sits); but see, e.g., Byers v. Lincoln Elec. Co., 607 F. Supp. 2d 840, 
No. 13-6622 Wahl v. General Electric Co., et al. Page 8

844 (N.D. Ohio 2009) (stating, without further analysis, that because the plaintiff “filed his 

complaint directly in this Court . . . , the choice-of-law principles of Ohio, the forum state, 

govern the Court’s analysis”); In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897, 904 & n.2 

(E.D. La. 2007) (concluding, with lengthy analysis, that Louisiana’s choice-of-law rules applied 

even though it could “create another oddity” because “the traditional ‘transferor’ / ‘transferee’ 

roles will be reversed”). 

 Our precedent also confirms that the court of proper venue should apply its own choiceof-law rules, not those of the MDL court. For example, in Martin v. Stokes, the plaintiff, a 

Virginia resident, was injured in in an automobile accident in Kentucky by a vehicle driven by a 

citizen of California. 623 F.2d 469 (6th Cir. 1980). When it came to the attention of the plaintiff 

that Kentucky, unlike Virginia, had a one-year statute of limitations and that it had already 

expired, the plaintiff immediately filed in federal district court in Virginia so as to take advantage 

of Virginia’s two-year statute of limitations. The defendants moved to quash process and to 

transfer the case to the Western District of Kentucky after the plaintiff attempted to serve process 

in Kentucky. Though the motion to quash was denied, the Virginia district court did transfer the 

case to Kentucky. Following transfer, the defendants moved to dismiss based on Kentucky’s 

one-year statute of limitations. The plaintiff argued in response that Virginia’s substantive law, 

since it was the site of the transferor court, should apply. The district court disagreed, granted 

the motion to dismiss, and the plaintiff appealed. 

 On appeal, we determined, in accordance with Van Dusen, that choice of law does not 

depend on whether the party seeking transfer is plaintiff or defendant. Rather, we concluded that 

“the choice of law should depend upon the motive of transfer, that is, whether the transfer was 

pursuant to 28 U.S.C. § 1404(a) or § 1406(a).” Martin, 623 F.2d at 471 (emphasis added).1

 

 Our reasoning in Martin proceeded in several steps. Van Dusen declared that a transfer

for the convenience of the parties under § 1404(a) (following the plaintiff’s initial choice of an 

appropriate forum) “should be regarded as a federal judicial housekeeping measure, . . . generally 

intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms,” 

 1

28 U.S.C. 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the 

wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or 

division in which it could have been brought.” 
No. 13-6622 Wahl v. General Electric Co., et al. Page 9

Martin, 623 F.2d at 472 (quoting Van Dusen, 376 U.S. at 636–37). But transfers under § 1406(a) 

for improper forum are “based not on the inconvenience of the transferor forum but on the 

impropriety of that forum.” Martin, 623 F.2d at 472. Therefore, if the law of the transferor 

forum were applied following a § 1406(a) transfer, “the plaintiff could benefit from having 

brought the action in an impermissible forum.” Ibid. Reasoning that “[s]uch forum-shopping 

was what the Supreme Court sought to eliminate by its decision in Van Dusen,” we concluded 

that, “following a transfer under § 1406(a), the transferee district court should apply its own state 

law rather than the state law of the transferor district court.” Ibid. 

 Although Martin predated Ferens, many post-Ferens cases from other circuits continue 

to draw the distinction between transfer orders under § 1404(a) and those under § 1406(a). See, 

e.g., Eggleton v. Plasser & Theurer Exp. Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 

582, 588-89 (8th Cir. 2007) (reversing, after forty years, in light of overwhelming authority to 

the contrary, the circuit’s longstanding rule that the law of the transferor court should be 

employed by the transferee court following transfers pursuant to § 1406(a)); Shaeffer v. Village 

of Ossining, 58 F.3d 48, 50 (2d Cir. 1995) (finding that, in lawsuits transferred pursuant to 

§ 1406(a), “the transferee court should apply whatever law it would have applied had the action 

been properly commenced there” (quoting 15 Charles A. Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice and Procedure § 3827 at 267 (2d ed. 1986))); Myelle v. Am. Cyanamid 

Co., 57 F.3d 411, 413 (4th Cir. 1995) (finding that, when receiving a suit transferred under 

§ 1406(a), the receiving court “must apply the law of the state in which it is held rather than the 

law of the transferor district court”). At least in the context of § 1406(a) transfers, the weight of 

authority demonstrates that the mechanical application of the transferor-transferee rule 

articulated in Van Dusen is not warranted in all cases of venue transfer. 

 If plaintiffs could avail themselves of the law of the MDL-court forum, every plaintiff in 

an MDL case would be able to choose the law of a state that is not an appropriate venue. This is 

the evil we sought to avoid in Martin, and the basis of decision that cases transferred under 

§ 1406(a) should apply the law of what Wahl calls the “transferee” court. 
No. 13-6622 Wahl v. General Electric Co., et al. Page 10

3 

 In the present case, the Northern District of Ohio cannot be said to have been a 

“transferor” court as were the courts in Van Dusen or Ferens. In 2008, the JPML directed 

dozens of NSF cases to the United States District Court for the Northern District of Ohio for 

consolidated pretrial litigation. The MDL court then issued Pretrial Order No. 1, which allowed 

later-filing litigants the option of initiating their suit directly with the MDL court, rather than 

filing in their home jurisdictions and then awaiting transfer to the MDL court in the first 

instance. The terms of the pretrial order explicitly stated: 

Defendants will not challenge the venue of any action filed directly in the 

Northern District of Ohio for purposes of pretrial proceedings. Upon the 

completion of all pretrial proceedings . . . this Court, pursuant to 28 U.S.C. § 

1404(a), will transfer that case to a federal district court of proper venue, as 

defined in 28 U.S.C. § 1391, based on the recommendations of the parties to that 

case. 

The pretrial order further stated that the “fact that a case was filed directly in MDL 1909 

pursuant to this order will have no impact on the choice of law to be applied.” (emphasis added). 

Wahl opted to file directly in the Northern District of Ohio. Wahl herself mirrored to the MDL 

court in her complaint the pretrial filing order’s sentiment that suits would later be transferred to 

an appropriate venue following the conclusion of pretrial litigation: “[t]he venue of the current 

case would have been appropriate under 28 U.S.C. § 1391 in the Middle District of Tennessee 

because a substantial part of the events giving rise to this claim occurred in that district as 

Plaintiff Marye Wahl was administered Omniscan in that district, and because Plaintiff has at all 

times relevant resided in that district.” At the conclusion of pretrial litigation, Wahl and the 

defendant submitted a Joint Stipulated Motion for Entry of Summary Judgment, which specified 

that the parties jointly requested transfer to the Middle District of Tennessee. 

 The terms of the order permitting direct filing, the contents of Wahl’s complaint, and the 

subsequent joint request for transfer to the Middle District of Tennessee all reveal that Wahl, 

unlike the litigants in Van Dusen and Ferens, did not subject herself to the jurisdiction of the 

district court where she filed. Instead, she took advantage of the procedural mechanism the 

MDL made available to increase efficiency of filings. 
No. 13-6622 Wahl v. General Electric Co., et al. Page 11

 Wahl’s case more closely resembles a transfer under § 1406(a) than a typical transfer 

under § 1404(a). Like transfers under § 1406(a), Wahl’s suit was transferred out of the Northern 

District of Ohio because that district was not a proper venue in her case; for that reason, the 

direct-filing order contemplates eventual transfer to a proper venue. Wahl now wishes to take 

advantage of the facts that she first filed her case in the Northern District of Ohio and that, when 

pretrial litigation ended, the case was transferred to the Middle District of Tennessee. By virtue 

of this administrative step, she designates the Northern District of Ohio the “transferor” court 

and the Middle District of Tennessee the “transferee” court. Although these labels may reflect 

the chronological unfolding of filings and transfers, Wahl essentially rests her case on little more 

than filing terminology. 

 Finally, Wahl’s rule would complicate MDL-panel litigation immensely. Any benefit in 

efficiency from combining similar litigations for pretrial motions would pale in comparison to 

the complications of applying the substantive law of the venue in which the MDL panel 

happened to convene cases from around the country. 

B 

 Even if Ohio law, including Ohio’s choice-of-law rules, were to apply to this action, it 

still makes no difference to the outcome of the case because under Ohio’s choice-of-law rules, 

Tennessee substantive law must still be applied. 

 In 1984, Ohio adopted a new choice-of-law regime for tort cases, the case-by-case “most 

significant relationship” test articulated in § 146 of the Restatement (Second) of Conflict of 

Laws. Morgan v. Biro Mfg. Co., 474 N.E.2d 286, 288–89 (Ohio 1984) (per curiam). 

 As articulated by the Restatement, the most-significant-relationship test provides that 

[i]n an action for a personal injury, the local law of the state where the injury 

occurred determines the rights and liabilities of the parties, unless, with respect to 

the particular issue, some other state has a more significant relationship under the 

principles stated in § 6 to the occurrence and the parties, in which event the local 

law of the other state will be applied. 

Restatement (Second) of Conflict of Laws § 146 (1971). In addition to the default rule of the 

place of injury, the Supreme Court of Ohio also explicitly adopted the relevant factors set forth 
No. 13-6622 Wahl v. General Electric Co., et al. Page 12

in § 145, which are analyzed in light of the default rule of the place of injury. Morgan, 

474 N.E.2d at 289. As enumerated in that case, these factors include: 

(1) the place of the injury; (2) the place where the conduct causing the injury 

occurred; (3) the domicile, residence, nationality, place of incorporation, and 

place of business of the parties; (4) the place where the relationship between the 

parties, if any, is located; and (5) any factors under Section 6 which the court may 

deem relevant to the litigation. 

Ibid. (footnote omitted). The § 6 factors include: 

(a) the needs of the interstate and international systems, (b) the relevant policies 

of the forum, (c) the relevant policies of other interested states and the relative 

interests of those states in the determination of the particular issue, (d) the 

protection of justified expectations, (e) the basic policies underlying the particular 

field of law, (f) certainty, predictability and uniformity of result, and (g) ease in 

the determination and application of the law to be applied. 

Restatement (Second) of Conflict of Laws § 6(2) (1971). 

The § 6 factors do not counsel the selection of Ohio law in this case. Tennessee has a far 

greater interest in a lawsuit by one of its own injured citizens against a drug manufacturer than 

does New Jersey. Tennessee law should apply, even under Ohio choice-of-law principles. 

This case presents a straightforward application of Ohio’s choice-of-law rules. The 

default rule requires the use of the law of the place of injury. In this case, the place of injury was 

Tennessee and it is therefore presumed that Tennessee’s law will apply. This presumption can 

only be overcome if, in light of the § 145 factors, it turns out that another state has a more 

significant relationship with the case than the state where the injury occurred. Here, the § 145 

factors also point toward the application of Tennessee law: (1) the injury occurred in Tennessee; 

(2) the conduct causing the injury (the MRIs and the administration of Omniscan) occurred in 

Tennessee and other conduct causing the injury (such as manufacturing and business) occurred 

throughout the United States; (3) GE is a corporation of national scope and was present doing 

business in Tennessee and Wahl was a resident of Tennessee at the time of the injury; and (4) the 

relationship between the parties was located at the site of Wahl’s treatment, Tennessee. Other 

than the fact that GE’s medical division operated in and was headquartered in New Jersey, and 

that the Omniscan was manufactured in Ireland, every § 145 factor points toward Tennessee. 
No. 13-6622 Wahl v. General Electric Co., et al. Page 13

 Wahl points to § 90 of the Restatement, the so-called “public policy exception,” which 

requires that “[n]o action will be entertained on a foreign cause of action the enforcement of 

which is contrary to the strong public policy of the forum.” Restatement (Second) of Conflict of 

Laws § 90 (1971). Wahl argues that the Right to Remedy Clause of the Ohio Constitution would 

not countenance the Tennessee statute of repose’s effect of extinguishing Wahl’s vested rights 

before she could discover them. This, she argues, is so strongly against Ohio’s public policy that 

it runs afoul of § 90 of the Restatement. 

 Putting aside any other deficiencies in her argument, § 90 simply does not apply to 

affirmative defenses. The first comment to § 90 states that “[t]he rule of this Section does not 

justify striking down a defense good under the otherwise applicable law on the ground that this 

defense is contrary to the strong public policy of the forum.” Restatement (Second) of Conflict 

of Laws § 90, cmt. a (1971). 

 Since Tennessee was the place of injury and has the most significant relationship with the 

parties to the action, and since § 90 is inapplicable to affirmative defenses, Ohio’s choice of law 

requires the application of Tennessee law and its one-year statute of repose. 

 As to Wahl’s final argument that New Jersey law should apply under either Tennessee or 

Ohio choice-of-law rules, she is in error. Both Ohio and Tennessee have adopted the Second 

Restatement and the analysis under Tennessee’s choice-of-law rules would also demand the 

application of Tennessee law. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992) (adopting 

the “most significant relationship” approach of the Second Restatement). 

IV 

 For the reasons above, we AFFIRM the district court’s grant of summary judgment to the 

defendant.