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.”