The imminent retirement of David Letterman sent our mind back to all those grim law school days that foreclosed any smiles until after midnight, when Letterman’s velcro suit, random items heaved off a roof, and stupid pet tricks helped us forget the indignities of Torts class or the opacities of Justice Blackmun. Letterman was not shy about highlighting his Indiana upbringing. Come to think of it, Indiana has produced an astonishing amount of talent. The Jackson 5 hailed from Gary, Indiana. John Mellencamp is from Indiana. (That hardly matters to us, but since Eric Alexander insisted on a Mellencamp shout-out, we obliged.) Two all-time icons of cool – James Dean and Steve McQueen – strolled out of Indiana. Sports is another area where Indianans have excelled. There are more NBA players per capita from Indiana than any other state. Larry Bird and Oscar Robertson played high school basketball in Indiana, and they both belong on the hoops Mt. Rushmore. Robertson’s high school team lost to tiny Milan High in the 1954 Indiana single-class high school state basketball tournament. Milan went on to win the championship. That remarkable run was the basis for Hoosiers, possibly the greatest sports movie ever. With Rudy and Breaking Away, that means that Indiana is the setting for three of the top ten sports movies. If you want to add Knute Rockne, All-American to the list, giving Indiana four of the top ten, we would not argue. Indiana also knows how to host a big-time sports event. The recent NCAA Final Four in Indianapolis was masterfully run. More important, it vindicated our prediction at a recent DRI conference that Duke would prevail. The NFL combine is conducted at Lucas Oil Stadium. If you ever get the chance to do a grounds tour of the Indianapolis Speedway, take it. You can do a lap around the brickyard, following the treadmarks of Johnny Rutherford, Mario Andretti, and AJ Foyt. Our tour guide was positively bursting with pride over the Speedway’s heritage. He pointed out that the first left turn on the French LeMans race course is named Indianapolis. The first left turn (they are all left turns) on the Indy Speedway is named … turn one.
One of our law school buddies was from New York. He tried and tried to get a job with one of the big Wall Street firms for the summer after his first year, but could not get a foot (white-shoed or not) in the door. He ended up working in Indianapolis that summer, and promptly fell in love with it. Your correspondent had the same reaction the first week in law school upon encountering a certain someone eight rows down in Property class. She was from Indiana. All of which is to say that we love pretty much everything about Indiana. When the Indiana Governor showed up on the Sunday morning talk shows a couple of weeks ago trying to defend a controversial statute, he kept saying that people from Indiana are relentlessly friendly. You can debate whether that friendliness had anything to do with the merits or demerits of that statute, but that friendliness is a fact. The next Hoosier we meet who is unfriendly, unkind, or unfunny will be the first. Moreover, putting our lawyer hat on (finally!), we have always found Indiana laws, judges, jurors, lawyers, and, last but certainly not least, clients, to be smart and sensible.
Why would any defendant not want to be in Indiana?
Well, litigation takes on a life of its own. All sorts of variables are in play as to where one would want a litigation to take place. Sometimes we argue about whether a court can exercise personal jurisdiction over our client. With the recent Bauman decision, that argument has renewed vigor. Sometimes we argue forum non conveniens – a term that means exactly what it sounds like, that a particular court is not sufficiently convenient for the parties. We’ve been on different sides of the forum non conveniens issue, sometimes arguing that the trial should be where our client is located, and sometimes arguing that the trial should be where the alleged injury took place. The latter is probably slightly more common, but we cheerfully admit to our flexibility. For that reason, we are usually careful in making pronouncements on forum non conveniens decisions, because we never know which side of the issue we will be on in any particular case. In the recent case of Depuy Orthopaedics v. Brown, 2015 Ind. LEXIS 319 (Indiana Supreme Court April 24, 2015), the defendants argued that their home jurisdiction of Indiana was less convenient than courts where the plaintiffs lived, in Virginia and Mississippi. The trial court disagreed with the defendants, but the Court of Appeals reversed and ordered the cases to be sent south. The Indiana Supreme Court then got the last word, and its word favored the plaintiffs and affirmed the trial court’s original decision keeping the case in Indiana.
Why? Initially, we wonder why the parties were fighting so hard over this issue. Why did the defendants want to be in Virginia and Mississippi? Why did the plaintiffs want to be in Indiana? We do not know. The court does not tell us. We could guess, but odds are that we’d be wrong and that we’d end up receiving an indignant email supplying us with a reason for embarrassment. We’re aware of certain aspects of substantive law that might lead a smart lawyer to prefer one of these jurisdictions over another, but that theoretically should not matter because one forum can apply another’s substantive law. The court in this case said as much. So next to that first why let’s write a big Dunno. The second why – why did the Indiana Supreme Court affirm the trial court’s decision to keep the case in Indiana – is much easier to answer. It all came down to the standard of review. So much of the law, especially when the issues are otherwise close, comes down to presumptions, burdens of proof, and standards of review. Get those procedural issues on your side, and you are more than halfway to victory. The word “discretion” shows up more than once in Indiana Trial Rule 4.4(C), which lays out when a court can order a litigation to be held elsewhere. The trial court can exercise its discretion and may consider whether there is personal jurisdiction, which fora are more convenient for parties and witnesses, conflicts of law, and “[a]ny other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.” Note that “may consider.” The trial court has lots of discretion what to consider and how to consider it. According to the Indiana Supreme Court, “we will only reverse ‘if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court had misinterpreted the law.'” Putting aside the annoying misplacement of that “only” (it should be closer to what it is modifying; that is, after, not before, the “reverse”), what the Indiana Supreme Court is saying is that a trial court can do just about anything it wants regarding forum non conveniens issues unless it has utterly mangled the law. Was the trial court crazy? No? Then it can keep the case or send it along as it sees fit.
That is only a slight overstatement. The Indiana Supreme Court surveyed the relevant factors, some more intelligible or relevant than others. The entity that designed, manufactured, and marketed the medical devices at issue was in Indiana. Check. Indiana has a “manifest interest” in hearing disputes involving its citizens. That sounds like blather to us. So does the plaintiffs’ choice of forum. The Indiana Supreme Court said that some deference was owed to that choice. But there was also precedent that a foreign plaintiff should get no such deference. Whatever. Then the Indiana Supreme Court mentioned some factors that are more interesting. At least 17 depositions had already been conducted in Indiana. How did that happen before a forum non conveniens motion had been decided? That is another Dunno. But what about the remaining depositions? What if there are many more of them, and if they are all in Virginia or Mississippi? The court tells us that “no evidence was presented that any witnesses located in Virginia or Mississippi will be unwilling or unable to come to Indiana to give testimony.” We do not know how many witnesses there are in Virginia or Mississippi, but one wonders how many of them, especially doctors, would come to Indy (never mind all that wonderfulness we described above). If there is a practice pointer to be found anywhere in this opinion, it might be how important it is to gather evidence of witness availability and relative convenience. That might be considerably easier said than done. The final factor considered by the Indiana Supreme Court was conflict of laws. But “[a]lthough there are differences between [sic] the laws of Indiana, Virginia and Mississippi with respect to product liability, Indiana courts are capable of interpreting and applying those differences.”
In the end, the Indiana Supreme Court agreed that the defendants had submitted plenty of evidence supporting venue in Virginia or Mississippi. But the defendants had supplied no evidence that the trial court was crazy. For that reason, the trial court’s original decision keeping the case in Indiana had to stand.
If you take a walk around downtown Indianapolis, which really is a refreshingly walkable city, you will encounter nice parks and a canal. You might encounter the home of President Benjamin Harrison, who actually accomplished a lot in his single term, which was bookended by Grover Cleveland’s two terms. You will also encounter more monuments than any American city outside Washington, D.C. We’re not exactly calling the DePuy v. Brown decision a legal monument, except perhaps to the power of, and potential frustration caused by, the abuse of discretion standard of review.