Photo of Eric Alexander

We (in the peculiarly singular sense) last posted on the day after Thanksgiving, a day sometimes referred to as Black Friday because of the number of retailers that offer purportedly discounted prices to lure eager holiday shoppers.  We have discussed before how the moniker seems more appropriate for other historic events.  It was probably apparent from that post that shopping, particularly at brick-and-mortar stores, is not our favorite thing to do.  We do know, however, that others can be drawn to certain, packed locations by the lure of a good deal.  So too—seamless transition, huh?—can plaintiffs flock to jurisdictions where their lawyers expect a good deal from judges and juries.  Assuming subject matter and personal jurisdiction exists, an assumption we think may be less likely to be foregone in the future, the plaintiff generally gets to pick where the defendant will have to show up to see what kind of deal it can get.

Once jurisdiction exists, there are two vehicles for a defendant to move a case.  The first often has less utility—a motion to transfer to another court within the same state (or to a different federal court when the case is in federal court, which plaintiffs generally try to avoid in the first place).  Consolidation of cases involving the same product through the application of aggregation procedures limits the availability of motions to transfer, but transferring from one court in a state in which the big drug or device manufacturer does not want to be to another court in the same state may not improve the deal much.

The second vehicle is to claim that the forum, typically meaning anywhere in the state where sued, is an inconvenient one for the defendant and the case.  There is some basic appeal for the plaintiff’s response to a forum non conveniens motion lodged by a defendant sued in its own state—how can it be inconvenient for you to be sued in your own state?  Because many drug and device manufacturers are based in, or have subsidiaries that are based in, New Jersey, and because one of the mass tort judges in New Jersey was generally thought to be somewhat inclined to one side of the v., Atlantic County, New Jersey, became a favorite destination for litigation tourists.

With the old sheriff/cashier/croupier moving on, the winds of change may be blowing through the town with a new sheriff.  (Yes, we did try to mix our metaphors there.)  Falcon v. Pfizer, Inc., No. ATL-L-4318-12, 2014 WL 6882591 (N.J. Super. Ct. Dec. 1, 2014), closes the store/casino to out-of-state plaintiffs, sending a message that litigation tourists may not be welcome any more.  The forum non facts of Falcon are fairly familiar for such cases, with Iowa plaintiffs suing in New Jersey over a drug prescribed in Iowa that allegedly produced birth defects in a child born and treated in Iowa.  Other than the plaintiff’s counsel’s office, the only connection of the case to New Jersey was two of the defendants are based there.  Of course, not every defendant is really connected to the case and the plaintiff only alleged injuries from taking a generic product made by one of the two subsidiaries it sued.  The parent company, which also developed the branded version of the drug—which the “Mother Plaintiff” did not take—is based in New York.  The parties made the expected arguments about the private interest and public interest factors that govern a forum non decision under New Jersey law.

While there is a fairly high bar for dismissal—that is, where the “defendant demonstrates that the plaintiff’s chosen forum is demonstrably inappropriate”—the court has discretion on whether it keeps a case.  Defendants aided their cause by agreeing to accept service in Iowa and waive any statute of limitations defense occasioned by re-filing, allowing them to argue that the case really should be in Iowa.  Because generic document and company witnesses had been completed—something that may distinguish this case from others—the focus was on access to case-specific discovery from third-parties, which the court held was easier if the case were pending in Iowa where the plaintiffs’ treating physicians and their records are.  If the case stayed in New Jersey, “Defendants will be required to either hire local Iowa counsel for the purpose of issuing or obtaining subpoenas, or have New Jersey Subpoenas issued and submit those subpoenas to an Iowa Court who will have to hear any discovery disputes without any familiarity with the case,” neither of which would happen if the case were in Iowa.  (In fairness, we certainly do expect the Defendants would hire Iowa counsel for an Iowa case.)

By contrast, if the case is in Iowa, plaintiffs will be able to get the same discovery from the New Jersey subsidiary defendants and would face the same hurdles of discovery from the New York parent defendant.  The court also rejected the suggestion that the inability of a New Jersey court to compel live trial testimony from Iowa doctors is mooted by the availability of videotaped depositions, noting that a trial in Iowa would provide the parties with the ability to secure live testimony from these doctors at trial.  In all, the private interest factors “clearly weigh in favor of an Iowa forum” for the wannabe tourists.

The public interest factors were a closer call, as the question of whether the defendant’s state or the plaintiff’s state has a stronger interest in deciding the case often is.  Given that only one of the New Jersey defendants sold the drug the Mother Plaintiff took, it was generic, and the court had previously held that (most or all) claims against generic manufacturers are preempted, the real question was what interest a New Jersey court would have in determining whether the New York parent should be liable.  The implication is that the answer is “not much,” especially because the court is “satisfied that Iowa law should control Plaintiffs’ claims.”  The Iowa Supreme Court has rejected Conte liability already, as have some New York courts, so this may be an exercise in determining which court gets to grant summary judgment.  “Iowa’s interest in protecting in-state residents is clear.”  Presumably, so is Iowa’s interest in determining when its residents do not deserve compensation.  “[T]here is a significant benefit to having localized controversies decided at home [and] nearly all of the facts arise in Iowa.”  The only remaining impediment to dismissal was whether it would create an undue delay to “an ultimate decision on the merits,” but “an even greater delay will result from the procedural difficulties in compelling discovery from non-party Iowa witnesses.”

This is not exactly like hanging a “closed for out-of-state business” (or “no vacancy”) sign out, but the reasoning here should apply to a bunch of cases brought in New Jersey over the years.  What it does not address is how the court will address multi-plaintiff cases brought with one New Jersey resident—whose choice of her home forum would be give considerable weight—and a number of forum shoppers.  Some courts have seen through this and severed before jettisoning the visitors.  Some have not.  In any event, Falcon gets to fly back home.

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In our last post, we invited readers to participate in our word search contest.  The single-digit number of submissions overwhelmed us.  We have determined that there was a tie between Ed Arnold, a noted gourmand in his own right, and Tom Pirtle, who urged that we accept smokeless tobacco as a food.  Congratulations, gentlemen.  Feel free to add this to your respective resumes under “Honors.”