163 S.W.3d 537 (Mo.App. E.D. 2005), ED 84192, Chandler v. Multidata Systems Intern. Corp., Inc.

Docket Nº:ED 84192.
Citation:163 S.W.3d 537
Party Name:Natacha CHANDLER, et al., Appellants, v. MULTIDATA SYSTEMS INTERNATIONAL CORP., INC., et al., Respondents.
Case Date:May 10, 2005
Court:Court of Appeals of Missouri
 
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163 S.W.3d 537 (Mo.App. E.D. 2005)

Natacha CHANDLER, et al., Appellants,

v.

MULTIDATA SYSTEMS INTERNATIONAL CORP., INC., et al., Respondents.

No. ED 84192.

Court of Appeals of Missouri, Eastern District, Fourth Division.

May 10, 2005

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Edward D. Robertson, Jr., Anthony DeWitt, Jefferson City, MO, Joe Fisher, Mark Sparks, Beaumont, TX, Benton Musslewhite, Houston, TX, for appellant.

Jeffrey K. Suess, Heather J. Hays, St. Louis, MO, Clayton E. Dickey, Matthew S. Jensen, Kansas City, MO, for respondent.

LAWRENCE G. CRAHAN, Judge.

Natacha Chandler, along with a number of persons exposed to excess radiation and survivors of persons who died as a result of excess radiation, almost all of whom are Panamanian residents and citizens (collectively "Plaintiffs"), 1 appeal the judgment of the trial court dismissing their claims against Multidata Systems International Corp., Inc. ("Multidata"), and Theratronics International Limited, MDS (Canada), Inc., MDS Nordion, and MDS, Inc. (collectively "Canadian Defendants") for forum non conveniens. 2 We affirm.

Between August and December 2000, Plaintiffs (or their decedents) received radiation therapy from the Instituto Oncológico Nacional ("ION") (translated as the "National Oncology Institute"), which is located in Panama City, Panama. During this time, they were over-exposed to radiation, resulting in injuries and several deaths. Once the effects of the over-radiation surfaced, the government of Panama requested an investigation into the over-radiation by the International Atomic Energy Association ("IAEA"), which included a panel of several international experts and a number of Panamanian supporting experts. The IAEA published a report explaining its understanding of the events leading to the over-radiation ("IAEA Report").

In October 2001, the injured patients and the survivors of deceased patients, totaling 112 persons, brought an action in St. Louis County, Missouri, against Multidata, a Delaware corporation whose principal place of business is in St. Louis County, and Canadian Defendants, which are all Canadian corporations, 3 for lost chance of recovery or survival, wrongful death, and negligence due to Multidata's and the Canadian Defendants' alleged defective radiation therapy products. In particular, Plaintiffs alleged that Multidata negligently manufactured and sold a computer-operated treatment system known as the Treatment Planning System ("TPS") and that the Canadian Defendants negligently manufactured and sold a Cobalt 60 Theratron 780C Teletherapy Unit ("Theratron Unit"), both of which were used by the radiation oncology team to administer radiation therapy at the ION.

According to the IAEA report, the TPS is designed to calculate dosage times where the radiation oncology team uses up

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to four shielding blocks to protect a patient's healthy tissue and organs while administering radiation to the cancerous tissue. At some point, one of the radiation oncologists decided to add a fifth block during treatment. The oncologist asked the physicists to enter data regarding the fifth block into the TPS to calculate a new dosage in light of the added block. However, because the TPS is not equipped to calculate a dosage where five blocks are used, the physicists re-configured the entry of data to make it appear to the TPS that the five blocks were actually one single block. As a result, the TPS miscalculated the amount of radiation a patient would actually receive during a therapy session and prescribed a greater number of therapy sessions than the patient should have been given. Ultimately, one of the radiation oncologists and all three physicists on the radiation oncology team at the ION lost their licenses to practice for life. In addition, two of the three physicists were criminally convicted in Panama of negligent homicide due to their roles in the over-radiation.

In response to Plaintiffs' petition, Multidata and the Canadian Defendants moved to dismiss the action under the doctrine of forum non conveniens on the basis that Panama is a more convenient forum. After extensive discovery, including depositions of several experts, the court held an evidentiary hearing to determine whether the action should be dismissed. In support of their motions, Multidata and the Canadian Defendants first presented the testimony of Rajendra G. Kurup, PhD. ("Dr.Kurup"), the Director of Medical Physics and an Associate Officer at the University of Kansas. Dr. Kurup testified regarding the standard of care that applies to radiation oncology. Relevant to Plaintiffs' allegations, he stated that the standard of care for radiation oncology includes verification of a patient's treatment plan. He testified that generally physicists should conduct an independent second check to make sure a patient gets the correct treatment. Consequently, Dr. Kurup stated that where a physicist or an oncologist deviates from a treatment plan as described in the IAEA report, an independent second check of the dosage calculation is even more important. According to Dr. Kurup, had the ION physicists performed a manual calculation to check the treatment times, which would take them roughly ten minutes to complete, they would have caught the error.

Dr. Kurup also identified the presence of other indicators that should have alerted the radiation oncology team that the dosage time was erroneous, including the configuration of isotope curves (curves used to graphically illustrate the amount of radiation a patient is receiving) that resulted after entry of the erroneous data and the actual extension of time attributed to each separate dose of radiation from the typical amount of 35-50 seconds to 60-90 seconds after re-calculation with the fifth block. Finally, Dr. Kurup noted that a basic principle in using computers to make calculations is that if incorrect information is entered, the computer cannot generate a correct output.

On the issue of Panamanian law, Multidata and the Canadian Defendants offered the testimony of Dr. Narciso Arellano Moreno ("Dr.Arellano"). Dr. Arellano testified that he is a litigation attorney in Panama City, Panama, who has been practicing law since 1976. Dr. Arellano served as dean of the law school he attended in Panama for twelve years and is currently a substitute judge for the Court of Appeals in the district of Panama. During his testimony, Dr. Arellano cited and explained the sections of Panama's Judicial Code and Civil Code that permit Plaintiffs to bring a cause of action against Multidata

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and the Canadian Defendants for "extra-contractual" damage, or damage that a person suffers due to negligence. Should Plaintiffs prevail, Dr. Arellano stated that under Panamanian law they would be entitled to recover both "material" damages, such as medical expenses and lost wages, and "moral" damages, such as pain and suffering.

Dr. Arellano further testified regarding the due process protections and discovery tools available to litigants in Panama, such as a party's ability to add third parties and to obtain expert testimony and documentary evidence. As to the competency and fairness of judges, Dr. Arellano testified that he believed all the judges in Panama were competent and had to meet various qualifications outlined in the statutes. He also testified that any corruption present in the system could be remedied using Panama's complaint process. Panama recently enacted "Law 23" to improve the efficiency of the court system, and, according to Dr. Arellano, Law 23 has generated positive results.

With respect to jurisdiction over foreign defendants, Dr. Arellano explained, based on Panama's Judicial Code and his experience trying cases against foreign corporations, that Panama may take jurisdiction over the defendants based on the location of Plaintiffs' injuries in Panama City even though Multidata and the Canadian Defendants are foreign corporations not registered in Panama. With respect to the legal principle of lites pendencia, which precludes a plaintiff from filing a lawsuit against a person while another suit is pending against the same person based on the same incident, Dr. Arellano testified that this principle only applies where the suit is filed within the nation of Panama and does not apply to suits pending in foreign countries.

Finally, Dr. Arellano explained the application of the Bustamante Code, a treaty governing civil litigation among Central and South American countries. Dr. Arellano stated that the Bustamante Code, which limits a court's jurisdiction over a cause of action to the location of the defendant's domicile or a venue to which all parties have consented, can only be enforced with respect to countries that ratify and adhere to it, and that to the extent the Bustamante Code conflicts with Panamanian law, Panamanian law will prevail. According to Dr. Arellano, the United States has not ratified the Bustamante Code.

When Dr. Arellano completed his testimony, Multidata and the Canadian Defendants then presented the videotaped deposition testimony of Dr. Jorge Jose Fabrega Ponce ("Dr.Fabrega"), Plaintiffs' Panamanian law expert. In addition to receiving his law degree in Panama, Dr. Fabrega received a Bachelor of Arts from the University of Southern California, a Master's Degree in political science from the University of Pennsylvania, and has studied comparative law at the University of Strasbourg in France. Dr. Fabrega has practiced law since 1953 and has served as an active justice in Panama's Civil Court of Appeals and Civil Chamber of the Supreme Court, administrative litigation. In addition, Dr. Fabrega has assisted in drafting the Judicial Code of...

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