Interesting choice of laws case results in dismissal of claim

On August 11, the Court of Appeals for the 7th Circuit announced its decision in a case called Robinson v McNeil Consumer (available here), which involves an interesting combination of issues related to choice of laws and the defense of contributory negligence. In this case, the plaintiff used Motrin while living in Virginia. As a result, she suffered a severe reaction which caused her serious injuries. After she moved to Illinois, she filed a lawsuit in Illinois state court but the case was then removed to federal court. Before trial, the district court ruled that Virginia law governed the substantive issues in the case. Because Virginia law rejects strict liability as a basis for a product-liability suit, the plaintiff had to prove negligence. Also, because Virginia is one of only a handful of states that still recognize contributory negligence as a complete defense, in order to recover the plaintiff had to be complete free of fault. After a six-day trial, the jury found that the defendant had been negligent and found that the plaintiff's damages were $3.5 million. But the jury also found that the plaintiff had been contributorily negligent. Therefore, because contributory negligence is a complete defense to negligence under Virginia law, the district court entered judgment for the defendant. On appeal, the court of appeals affirmed holding that Virginia law applied because the plaintiff used the drug in Virginia and because she had symptoms of her disease before she left Virginia. The court explained that "[i]f you suffer permanent brain damage in a motorcycle accident in Virginia and later move to Illinois, your suffering and treatment will continue and your condition may deteriorate. But to make the continuation or exacerbation of an injury a basis for applying Illinois tort law to your case would open vistas of forum shopping." Having decided the issue, the court then speculated that even if Illinois law had been applied, the plaintiff would not have succeeded on her claim because there was sufficient evidence that the plaintiff's contributory negligence exceeded the defendant's negligence which would have defeated her claim under Illinois law. Thanks to Prof. Tim O'Neill for the tip.