Today’s case in a nutshell is the dismissal on forum non conveniens grounds of a claim brought in the United States by a woman from a Spain. We didn’t need to read beyond that blurb before we started hearing . . .
Farewell and adieu to you, fair Spanish ladies,
Farewell and adieu to you, ladies of Spain;
For we’ve received orders
For to sail to back to Boston
And so never more shall we see you again.
Just in case you don’t immediately hear that tune in Robert Shaw’s raspy tenor, here’s a link to enjoy. Quint Americanized his version by referencing Boston, but it’s actually a Napoleonic era English sea ballad. You can find more of the lyrics quoted in Moby Dick and the song pops up there and again in movies and television (often in homage or reference to Jaws), including in 2003’s Master & Commander, where we can only be thankful that it wasn’t sung by Russell Crowe.
Courage v. DePuy Orthopaedics, Inc., 2019 WL 1923311 (N.D. Ohio Apr. 30, 2019) is one of twelve essentially identical decisions sending Spanish litigation tourists back to Spain and in the process sets out a nice forum non conveniens analysis. Plaintiff is a resident of Spain. She underwent two hip replacement surgeries in Spain. She underwent revision hip surgery in Spain. All of her medical care related to her hip implants took place in Spain. The device used in her hip replacements was designed and manufactured by DePuy International Limited, a United Kingdom company. Id. at *2. But, when plaintiff brought her failure to warn lawsuit, she filed it in the United States. Id.
On a forum non conveniens challenge, the court undertakes a three step analysis: (1) how much deference to afford plaintiff’s choice of forum; (2) whether an adequate alternative forum exists; and (3) whether plaintiff’s chosen forum is unnecessarily burdensome. Id. at *3. On the last two issues, defendant bears the burden of proof.
Plaintiff’s choice is afforded less deference when plaintiff is resident of a foreign country. In this instance, plaintiff was unable to demonstrate that she chose the U.S. for a legitimate reason, such as obtaining jurisdiction over defendant, rather than just a “tactical advantage.” Id. We know American courts are attractive, but that’s not enough.
In addition, the Spanish legal system was available to plaintiff. Spain recognizes numerous causes of action for personal injuries based in negligence as well as product liability law. Id. at *4. It does not matter that the alternative forum may not provide the same “range of remedies” as the original forum, it simply must provide “some potential avenue for redress.” Id. at *3. Spain does. The second part of the alternative forum analysis is whether the defendant is amenable to process in that forum. Here, DePuy International agreed to accept service of process of Spain and agreed to waive statute of limitations/repose under Spanish law. Id. at *4.
Finally, the court has to assess the burden of proceeding in the chosen forum based on a balance of private and public interest factors. Starting with the private interest factors – “all evidence related to causation and damages is located in Spain.” Id. The physicians are in Spain. The documents are in Spain. And, unlike in many foreign plaintiff cases, the product was also not designed or manufactured in the United States. The only thing in the United States is the DePuy Hip Implant MDL and typically higher damage awards. But given these facts,
[a] trial in the United States will unfairly prejudice the Defendants by imposing barriers on their ability to secure crucial medical evidence, and prevent them from presenting this evidence through the live testimony of the medical professionals involved in Plaintiff’s care and treatment. Unlike Spanish courts, the United States lacks subpoena power to compel the production of Spanish witnesses for trial in this country.
Id. at *5. The court found the “forced reliance on deposition testimony and medical records that must be translated” was too “significant a procedural hindrance” to allow the case to proceed in the U.S. Id.
As to the public interest, Spain has the much greater interest in adjudicating the claims of alleged injury to one of its residents and in enforcing its regulatory and safety requirements for products sold within its borders. Id. Further, under Ohio’s choice of law rules, Spanish law would most likely apply. The U.S. court “would have to engage in the cumbersome task of analyzing Spanish law and applying to multiple principles of U.S. law.” Id. at *6. Therefore, the “tenuous” connection between plaintiff’s claim and the U.S. combined with the availability of redress in Spain, warranted dismissal. Farewell and adieu.
And, if that sea shanty wasn’t to your liking, how about a Roy Scheider, Robert Shaw, Richard Dreyfuss trio . . . Show me the way to go home . . .