Defense Digest

Push With All Your Weight, But Do Not Wait: the Defense Of Forum Non Conveniens

On August 2, 2006, the Superior Court of Pennsylvania granted the plaintiffs'/appellants' appeal and reversed the order of the Court of Common Pleas of Philadelphia County which granted a forum non conveniens dismissal to the plaintiff parents in a product liability suit against the defendant drug manufacturers. The plaintiff parents alleged that the drug manufacturers caused the thimersol exposure and subsequent medical problems of their minor child. Wright v. Aventis Pasteur, 2006 PA Super. (2006). The court acknowledged the Texas residency of the plaintiffs and that the blood product injections to the mother and vaccines to the minor were administered in Texas but, nevertheless, held that the trial court abused its discretion in determining that "weighty reasons" existed to permit dismissal of the Texas residents’ complaint based on forum non conveniens.

As set forth in Pa. C.S.A. §5322(e), a Pennsylvania court may dismiss a case when the court finds that in the interest of substantial justice, the matter should be heard in another state:

42 Pa. C.S.A. §5322(e).

The Superior Court reiterated the general rule that "[i]n deciding whether to dismiss a suit based on forum non conveniens, the [trial] court must consider two important factors: (1) a plaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff." Further, in accord with general case law, a two-step analysis of private and public interest factors must be used to test whether "weighty reasons" exist. The private factors include the access to sources of proof, availability of procedural processes to compel the unwilling to appear and testify, and the cost of willing witnesses to testify. The public factors include court congestion, the burden of jury duty on local people when they have no relation to the case, and the appropriateness to having a court apply its own law.

In analyzing the private factors, the Superior Court reviewed the pleadings and the detailed allegations of negligence that three of the seven co-defendants performed activities in Pennsylvania, such as marketing and manufacturing vaccines, conducting clinical trials and maintaining global safety surveillance on its products, and that a fourth defendant had its corporate headquarters in Pennsylvania. Further, it noted that four witnesses were within the subpoena power of the Philadelphia Court of Common Pleas. The court also considered the defense position that the bulk of the medical treatment underlying the allegations of negligence took place in Texas and that none of it took place in Pennsylvania. However, the court reasoned that after two years of litigation, the motion to dismiss was not filed until the last day for filing of pre-trial motions. Discovery was virtually complete and trial was only three months away. None of the defendants had corporate headquarters in Texas; thus, Texas would not be more convenient for the 21 corporate witnesses who worked or lived in the Philadelphia region, including several former or retired employees who were within the subpoena power of the Philadelphia Court but outside the subpoena power of a Texas court. Thus, the plaintiffs/appellants would have been unable to compel testimony of these witnesses had the case been transferred to Texas. Finally, the court opined that Philadelphia was, indeed, convenient based on corporate activity in the local area.

Turning its analysis to the public factors, the court focused on the defendants' activities with regard to their blood products and vaccines in Pennsylvania and allegations that several defendants manufactured their products or made marketing decisions in Pennsylvania. Thus, the court below would have "little support" to conclude the matter not to be of interest to the people of Pennsylvania.

Reversing the dismissal, the Superior Court carefully distinguished its ruling from that line of cases which upheld dismissal, and on which the trial court relied, by reiterating that in the instant case the discovery process was substantially completed. The court distinguished Jessop v. ACF Industries, LLC, 2004 PA Super 367 (Pa. Super. 2004), on the basis of discovery issues and on the issue of location of key manufacturing or marketing decisions and, further, distinguished Engstrom v. Bayer Corp., 2004 PA Super 223 (Pa. Super. 2004), on the discovery issue and the overwhelming differences in the number of witnesses and production facilities in Pennsylvania. Thus, the Wright Court formulated its approach by focusing on the procedural stage at which the motion to dismiss had been granted, as well as the distinguishing private and public factors cited above.

Wright v. Aventis Pasteur instructs us not to be late to the courthouse and not to wait until the last day to file a pre-trial motion to dismiss. More importantly, it instructs us not to allow such extensive and complete discovery to take place prior to filing a motion to dismiss because it may reveal the extent of your defendant’s activities or corporate witnesses within the plaintiff’s choice of forum and, thus, defeat a forum non conveniens challenge.

* Harriet is with the firm's King of Prussia, Pennsylvania office. She can be reached at (610) 354-8468 or hbanderson@MDWCG.COM.