Interestingly, it’s a case that is almost a year old that has us thinking about litigation tourism post Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). We know that plaintiffs’ forum shopping gamesmanship isn’t over. It’s just gotten a lot more difficult now that the Supreme Court has said non-resident plaintiffs
We’ve talked a fair amount about forum shopping on this blog. Forum shopping is largely in the control of plaintiffs’ counsel because they, within reason, get to choose where to file their clients’ lawsuits. And since they do need some reason, there are several frequently used methods by plaintiffs’ counsel when they’ve narrowed in on the court they’ve decided would be most favorable for their clients – typically state court. If a plaintiff wants to stay in state court where he/she resides, he/she sues a non-diverse party. In drug and device cases, that’s usually a pharmacy, a sales representative, a doctor. Sometimes the joinder of such a defendant is fraudulent and the case becomes removal, sometimes not. Another option is to sue a defendant in state court where the defendant resides, a court from which the defendant cannot remove the case. While venue in that scenario may be proper, where the only connection to the jurisdiction is the presence of the defendant, defendants have met with mixed success in arguing forum non conveniens. Just think, if plaintiff lives in Nebraska, ingested the drug in Nebraska, suffered her injury in Nebraska, but files suit in New Jersey – where is most of the discovery that is needed located? Especially discovery from third-parties who will require subpoenas. What state’s law is likely to apply to the bulk of the claims? Doesn’t make a lot of sense to be in New Jersey except for plaintiff’s preference to be in state court.
But what about when plaintiff’s choice of forum doesn’t turn out like he/she hoped? Should they get a do-over? A mulligan? A second chance? We don’t think so and neither did the court in Zarilli v. Johnson & Johnson, Docket No. ATL-L-1480-16, slip op. (N.J. Super. Law Div. Feb. 3, 2017). This case is one of several pending in New Jersey involving allegations of injury from the use of talc powder. The cases have been coordinated before a single judge for pre-trial proceedings. Plaintiff originally filed her suit in July 2016, and amended her complaint in September 2016. Defendants answered the complaint in October. Id. at 2.
We’ve mentioned before how our Trusts & Estates professor described the German legal system as “the mind of God revealed to man.” Professor Langbein was especially impressed with the German system of training judges, as well as the absence of party-hired experts (saxophones is what he called them, since they will play any tune). We were reminded of all this when we read Hefferan v. Ethicon Endo-Surgery Inc., 2016 U.S. App. LEXIS 12558; 2016 FED App. 0158P (6th Cir. July 8, 2016), a case in which the Sixth Circuit upheld the district court’s forum non conveniens dismissal on the grounds that the case should have been filed in Germany. We discussed the lower court decision here, and the appellate decision is mostly consistent. Of course it could be only “mostly,” because Judge Boggs authored the Sixth Circuit decision, and Boggs, like Posner, is so strong-willed and strong-minded that he will inevitably put his own spin on things. (Boggs was, for a time, a consistent short-lister when Supreme Court vacancies arose under Republican presidents. We once heard a Boggs clerk describe his boss as the “Brazil of Circuit judges,” since Brazil was for such a long time mentioned as the next superpower.)
To remind you of the facts of Heffernan: an American living in Germany for several years underwent surgery in Germany and allegedly suffered injuries in Germany. He claimed that a surgical stapler, manufactured by a company in America, had malfunctioned. He sued in a U.S. federal court (initially in New Jersey, later transferred to Ohio), along with his German citizen wife, who sued for loss of consortium. The district court granted the defendant’s motion to dismiss on the ground of forum non conveniens in favor of litigating in Germany.
The standard of review was abuse of discretion, so the plaintiffs were already running up hill. Here is a helpful outline of issues from Judge Boggs: “After the court determines the degree of deference owed the plaintiff’s forum choice, the defendant carries the burden of establishing an adequate alternative forum and showing that the plaintiff’s chosen forum is unnecessarily burdensome based on public and private interests.” It turns out that no deference was owed the plaintiffs’ forum choice because they chose a forum other than their home (they had no physical presence in the U.S. and it was clear they intended to remain in Germany) and there was no apparent convenience associated with litigating on this side of the Atlantic. Thus, the court concluded, the plaintiffs “have not shown that their decision to file suit in the United States was motivated by a legitimate reason such as convenience or the ability to obtain jurisdiction over the defendants rather than tactical advantage.”