Supreme Court of Appeals Rules Fentanyl Patch Lawsuit Can Proceed

Charleston, WVThe statute of limitations may have prevented a fentanyl patch lawsuit from proceeding in one state, but that won't stop another state from hearing the lawsuit. The lawsuit, which alleges that defective fentanyl patches were responsible for the death of a woman, will be heard in West Virginia. The wrongful death lawsuit is just one of multiple lawsuits that allege defective pain patches, including the Duragesic patch and fentanyl patches, caused serious harm to patients.

The lawsuit was filed by Randy Mace, following the death of his wife, Kathy. According to Legal Newsline (06/23/11), Kathy died in 2005 while using a fentanyl pain patch. Randy Mace did not file the lawsuit against Mylan, maker of the fentanyl patch, until 2008, after the two-year statute of limitations had expired. In North Carolina, where Mace lived, the statute of limitations on wrongful death begins running when the death occurs, regardless of whether the cause of death is known. In West Virginia, the statute of limitations on wrongful death begins once the cause of death is known.

Mace alleges he did not know that Mylan could be responsible for her death until after the two-year statute of limitations was over in North Carolina. According to The West Virginia Record (04/01/11), the lawsuit was originally filed in California in 2007 and it was during the discovery phase of that lawsuit that Mace learned that Mylan made the patches in question. Mylan has headquarters in West Virginia.

Initially, a judge in West Virginia dismissed the lawsuit, finding that it should be heard in North Carolina. Now, the West Virginia Supreme Court of Appeals has ruled that West Virginia must hear Mace's lawsuit, which alleges negligence, breach of warranty and product liability.

Fentanyl patches have been linked to an increased risk of overdose of fentanyl, a powerful opioid used to manage pain not controlled by less powerful pain relievers. Fentanyl overdose can result in respiratory failure and death. Problems with some of the patches reportedly include manufacturing defects that result in the fentanyl gel coming into contact with the patient's skin, causing an accidental overdose.

Because of manufacturing problems, fentanyl patches have been recalled multiple times since they were released on the market. Some patients and their families have filed lawsuits against the makers of the patches, alleging defects in the patches. One such lawsuit was recently affirmed in favor of the plaintiff, awarding the plaintiff $16.6 million.