We’ve used the phrase “one-two punch” before in the blog to describe a pair of legal decisions concerning the same product.  Usually, our clients have been on the winning side, but that’s not always true, particularly in cases coming out of Philadelphia, Pennsylvania.  In November, the Pennsylvania appellate courts, in gynecomastia litigation, dealt defendants two

Today’s post is another guest post from Kevin Hara, of Reed Smith, who is on his way to becoming a semi-regular blog contributor.  This post is about forum non conveniens, which is more discretionary, and less enforceable than personal jurisdiction as a limitation on plaintiff-side (or even defense-side) forum shopping, but which, as

We generally file motions to dismiss for forum non conveniens under one of two circumstances. Most often we are resisting blatant forum shopping—plaintiffs who try to import their claims into a forum that they view as favorable, but with which neither they nor their claims bear any arguable relationship. Plaintiffs’ lawyers often do this as part and parcel of inventory litigation, where they combine multiple claimants into mass complaints and file them in places like California or Illinois. Maybe there are one or two Californians or Illinois residents among the masses, but everyone else is just tagging along. You would think that judges would react poorly to this imposition on their courtrooms and state taxpayers, but it does not always work that way. Some grant our motions and send the carpetbaggers home, but others see no harm in presiding over dozens or hundreds of claims involving similar products, even though the claims themselves (usually personal injury claims) all require individual adjudication. Post-Bauman, challenges to personal jurisdiction have packed more punch in thinning out such “mass” complaints.

The other circumstance under which we generally file forum non conveniens motions is when the forum shopping is not so blatant, but there is an alternate forum that is both more appropriate for the plaintiff’s claims and more advantageous for our clients. An example is a foreign plaintiff suing a U.S. company in the company’s home forum. In that case, the plaintiff can certainly gain jurisdiction over the defendant in the defendant’s home forum, but is that the best forum in which to conduct the case? The answer was “no” in a recent order from the Northern District of California, Kleiner v. Spinal Kinetics, Inc., No 5:15-cv-02179, 2016 WL 1565544 (N.D. Cal. Apr. 19, 2016). In Kleiner, the German plaintiffs alleged injuries that they attributed to spinal implants that were designed and manufactured in California. However, the devices were sold by the defendant’s German subsidiary; the devices were implanted in Germany; the plaintiffs suffered their alleged injuries in Germany; and they were treated for their alleged injuries in Germany by German doctors. Id. at *1. They sued in California, and it is no mystery why: Their attorneys perceived it as a more favorable forum, including through the potential recovery of punitive damages. German law, by contrast, does not permit punitive damages.

The defendant moved to dismiss the case on the basis or forum non conveniens. It might seem odd that a defendant would assert that its home state is an inconvenient forum, but it depends on the facts of the case, and there are a number of prominent authorities supporting such a motion. The case we always cite in California is Stangvik v. Shiley, 54 Cal. 3d 744 (1991), where Swedish and Norwegian plaintiffs sued a California-based medical device manufacturer in California, and the California Supreme Court sent them back to Scandinavia. At the federal level, the case you will want to review is Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), where the U.S. Supreme Court held that Scottish plaintiffs could not proceed with their lawsuit against a plane manufacturer in Pennsylvania, even though the plane was manufactured there.


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We love our home state of California, but we have long bemoaned the widespread practice of what we call litigation tourism. That is where unrelated plaintiffs, sometimes thousands of them, from all corners of the U.S. join together in mass complaints filed in California state court. For whatever reason, California courts have seemed open to

We will never forget our first removal under the Class Action Fairness Act.  It was circa 2006, shortly after President Bush signed CAFA into law, when we received word of a complaint against our client filed in California state court with more than 100 plaintiffs claiming injuries from the same prescription drug.  Aha!  A removable mass action, we thought.  And before we knew it, we had the case in federal court under CAFA jurisdiction, poised to be transferred into a distant MDL.  After all, the plaintiffs were almost all litigation tourists with no connection whatsoever to the Golden State.

Careful readers have already discerned the end to this story.  Mass actions removed under CAFA may not be transferred to an MDL under the MDL statute (28 U.S.C. § 1407) unless a majority of the plaintiffs request the transfer.  See 28 U.S.C. § 1332(d)(11)(C)(i).  No such a request was forthcoming in our case.  In the words of our favorite post-modern philosopher, Homer J. Simpson, “D’oh!”  We and our more-than-100 adversaries remained in California, a beautiful place to be for many reasons, but not the proper forum for these non-California plaintiffs and their lawyers.

Since those early days, we have come across two ways to transfer a CAFA mass action to an MDL, notwithstanding CAFA’s prohibition on section 1407 transfers.  The first is to state an alternate basis for removal jurisdiction, such as federal question jurisdiction or diversity jurisdiction based on fraudulent joinder or misjoinder.  The JPML has permitted transfer of CAFA mass actions to multidistrict litigation, so long as CAFA is not the only basis for removal jurisdiction.  The most-cited example comes from the Darvocet MDL.  See In re Darvocet, Darvon and Propoxyphene Prods. Liab. Litig., 939 F. Supp. 2d 1376 (J.P.M.L 2013) (“Section 1332(d)(11)(C)(i) does not prohibit Section 1407 transfer of an action removed pursuant to CAFA’s mass action provision so long as another ground for removal is asserted.”).

The second method is to seek transfer not under section 1407, but instead under 28 U.S.C § 1404, the general venue transfer statute.  This strategy also comes out of the Darvocet litigation, Romo v. McKesson Corp., No. ED 12-2036, 2015 WL 3622620 (C.D. Cal. June 9, 2015), and all we can say is that we wish we had thought of it ourselves.  We have written before
on Romo in connection with the Ninth Circuit’s opinion holding that hundreds of claims related to one prescription drug constituted a CAFA mass action, even though counsel tried strategically to evade federal jurisdiction by dividing the plaintiffs into multiple civil actions of slightly under 100 plaintiffs each.
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As she famously clicked her ruby slippers together, Dorothy Gail proclaimed, “There’s no place like home.” Such was the conclusion of the United States District Court for the Southern District of Ohio in Hefferan v. Ethicon, 2015 WL 2169689 (S.D. Ohio May 8, 2015).   Hefferan is a relatively rare example of complete dismissal of a case pursuant to the doctrine of forum non conveniens, a doctrine that has largely been supplanted by the transfer statute, 28 U.S.C. § 1404(a), in cases in which another United States court provides an appropriate forum.  In Hefferan, voicing repeated disapproval of the Plaintiffs’ blatant forum shopping, the Court found that the courts of Germany, and not any of the District Courts of the United States, provided the appropriate forum for the resolution of the Plaintiffs’ claims.

Plaintiff, a United States citizen domiciled in Germany, alleged that he was injured by an Ethicon Endo-Surgery (“EES”) surgical stapler used in a hemorrhoidectomy performed on him in Simmerath, Germany.  Hefferan, 2015 WL 2169689 at *1.  Plaintiff’s spouse is a German citizen who also resides in Germany.   All treatment of Plaintiff’s surgical complications occurred in Germany.  Id.  Of thirteen witnesses with discoverable information identified in Plaintiff’s initial disclosures, all but one live in Germany.  In addition, Plaintiff identified “two categories of unnamed persons with discoverable information” — doctors and medical providers at two German hospitals.  Id.

Defendant EES is an Ohio corporation with its principal place of business in Ohio, and co-defendant Johnson & Johnson is a New Jersey corporation with its principal place of business in New Jersey.  Id.  The “overall direction of EES’s business, and work related to the design and marketing of the stapler and to regulatory compliance and quality control, took place principally at EES’s facility” in Ohio.”  Id.  Defendants identified two witnesses with discoverable information, both Ohio residents.  Id.


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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.


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Last weekend, we saw the surprisingly effective “Danny Collins,” a new movie starring Al Pacino as an aging rock star wondering how the focus of his life would have changed if he’d known contemporaneously about an admiring letter from John Lennon that was not given to him until decades later.

The focus of today’s post might have changed if, instead of celebrating a correct appellate decision, we were blogging about the underlying order.  Those of us who practice in the mass tort arena are all too familiar with the forum-shopping propensities of plaintiffs’ lawyers and the inevitably-resulting dockets filled with plaintiffs who bear no relation to the states in which their cases are pending.  In State of West Virginia ex rel. J.C. v. Mazzone, 2015 W.Va. LEXIS 259 (W. Va.  Apr. 10, 2015), the West Virginia Supreme Court entertained a Motion for Writ of Prohibition seeking to prevent West Virginia’s Mass Litigation Panel from enforcing its October 2014 order dismissing petitioners –  20 Zoloft plaintiffs from numerous other states – on forum non conveniens grounds.  (The named plaintiffs were infants who had allegedly sustained birth defects; hence, the Court referred to them by their initials). Had we blogged about the Panel’s order, we would have pointed out that the Panel did not need to consider the convenience of the forum.  Under SCOTUS’s April 2014 decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which we discussed here,  the fact that Pfizer was registered to do business in West Virginia did not confer general jurisdiction over it on West Virginia’s courts.  But forum non was the route the Panel chose and was the subject of the Court’s consideration.

The Court explained that “disputes over venue, such as a dismissal for forum non conveniens,” are exceptions to the “general proposition that prohibition does not lie to review discretionary rulings. . . .”  J.C., 2015 W.Va. LEXIS 259 at *14.  In considering a Motion for Writ of Prohibition, a court is to consider five factors, but “the third, the existence of clear error as a matter of law, should be given substantial weight.  Id. at *13.


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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.


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