In re Factor Viii or Ix Concentrate Blood

• Decision Date: 04 May 2007
• Docket Number: No. 06-1427.,06-1427.
• Citation: 484 F.3d 951
• Parties: In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION. Domenico Gullone, et al., Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.3d 951

In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION.

Domenico Gullone, et al., Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.

No. 06-1427.

United States Court of Appeals, Seventh Circuit.

Argued September 13, 2006.

Decided May 4, 2007.

Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, San Francisco, CA, Nicholas Diamond (argued), Lieff, Cabraser, Heimann & Bernstein, New York, NY, for Plaintiffs-Appellants.

Eugene A. Schoon (argued), Sara J. Gourley, Sidley Austin, Chicago, IL, Geoffrey R.W. Smith, Washington, DC, Richard L. Berkman, Dechert, Philadelphia,

PA, Kevin J. Stack, Knapp, Peterson & Clarke, Glendale, CA, for Defendants-Appellees.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

In the early 1980s, the HIV/AIDS epidemic burst onto the scene. Its seriousness could not be overstated: AIDS ravaged the immune systems of its victims and seemed to be inevitably fatal. Although initially the disease seemed to target gay men, it soon became apparent that it could strike anyone who was exposed to it. According to a history of AIDS prepared by the National Institutes of Health, "By the summer of 1982, scientists had convincing evidence that AIDS must be caused by a blood-borne and sexually transmitted virus." See "In Their Own Words: NIH Researchers Recall the Early Years of AIDS," http://aidshistory.nih. gov/tip — of — the — iceberg/index.html (visited April 5, 2007). One group that proved to be especially vulnerable was hemophiliacs, who need frequent transfusions of blood factors that cause clotting. Before 1985, when it became possible to test donated blood to ensure that it was free of the AIDS virus, close to half of all hemophiliacs became infected with the virus. See Gina Kolata, Hemophilia and AIDS: Silent Suffering, N.Y. TIMES, May 16, 1988.

The appeals now before us are the fourth in a series that has arisen from litigation brought by hemophilic individuals who were infected with HIV or Hepatitis C virus (HCV) by contaminated blood products known as Factor VIII and Factor IX ("Factor Concentrates"). See also In re Factor VIII or IX Concentrate Blood Prods. Litig., 159 F.3d 1016 (7th Cir.1998) (enforcing a settlement); In Matter of Rhone-Poulenc Rorer Pharms., Inc., 138 F.3d 695 (7th Cir.1998) (denying a petition for a writ of mandamus relating to the designation of expert witnesses for trial); In Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir.1995) (reversing a partial class certification). Turning to many federal courts around the United States, the plaintiffs sued a number of major drug companies ("the Drug Companies"). These suits, which were consolidated by the Judicial Panel on Multidistrict Litigation in the Northern District of Illinois under the docket number MDL-986, claimed that the defendant companies had intentionally recruited urban homosexuals, prisoners, and intravenous drug users to serve as blood donors, even though they knew that these donors were at high risk of carrying blood-borne diseases including the viruses that cause AIDS and Hepatitis C. The Drug Companies allegedly also failed to disclose the known risks of their products; failed to use available screening tests; failed to use available treatments for killing the viruses in the plasma; and continued to export non-heat-treated Factor Concentrates overseas after adopting safer methods for products sold in the United States.

The cases brought by many of the plaintiffs are still pending before the district court. Gullone v. Bayer Corp., however, was brought by a group from the United Kingdom, Italy, Germany, Israel, Argentina, and the State of Nebraska. Finding that the United Kingdom would be a more appropriate forum in which to handle the claims of the U.K. plaintiffs, the district court granted a motion by the Drug Companies to dismiss those claims on the ground of forum non conveniens; it certified that ruling as final and ready for appeal under FED.R.CIV.P. 54(b). Although we find it a close call, largely because the district court placed surprisingly little weight on the interest of California (the original forum) in this litigation and it may have over-estimated the administrative difficulties in keeping the case in the United States, we conclude in the end that the court acted within its discretion when it dismissed the case. We therefore affirm.

I

As we noted earlier, litigation about Factor Concentrate has been going on for some time; this case, along with its companions in the MDL, belongs to the "second generation" group. The district court described the earlier, "first generation" cases, in its opinion in order to provide the background for its ruling in the Gullone litigation. We include the highlights of that discussion here.

The preferred treatment for hemophilia, a hereditary disease in which the protein that causes blood clotting is missing, is intravenous injection of the necessary protein. The protein used in these treatments is derived from the plasma of donated blood. Using a process called "fractionating," the manufacturer can derive Factor Concentrates from the plasma; the Factor Concentrates are then sold for use by hemophiliacs. The principal four defendants throughout these proceedings have been Baxter Healthcare Corporation, Bayer Corporation, Alpha Therapeutic Corporation, and Armour Pharmaceutical Company; together, they produce practically all of the Factor Concentrates used in the United States. If the donated blood from which the Factor Concentrate is derived is contaminated with HIV or HCV, then the resulting concentrate may also be contaminated, unless it is subjected to a heat treatment or other method of viral inactivation. It is undisputed that some contaminated Factor Concentrates were sold, and that this was the way in which many hemophiliacs contracted AIDS or Hepatitis C.

The first generation lawsuits were brought against the Drug Companies by hemophiliacs who had contracted AIDS, their family members, and their personal representatives. The basic legal theory underlying these suits was negligence. See In re Rhone-Poulenc Rorer, Inc., 51 F.3d at 1300. Most of those claims were resolved in 1997 through a settlement. See In re Factor VIII or IX Concentrate Blood Prods. Litig., 159 F.3d at 1020 (approving the settlement). The "second generation" claims arose from allegations of knowing misconduct directed specifically toward victims outside the United States. The Gullone case was filed in the Northern District of California on June 3, 2003; many other suits on behalf of other foreign victims, from many other countries, followed in the courts of California, Florida, Illinois, and Texas. All of these cases were collected in the same multi-district litigation proceeding, MDL-986, that existed for the first-generation cases.

At this point, the only forum non conveniens ruling before us is the district court's decision to sever the claims of the U.K. plaintiffs and to dismiss those claims so that they may be pursued in the courts of the United Kingdom. The fact that the United Kingdom may—or may not—be an adequate alternative forum obviously says nothing about the adequacy of any other proposed country. Indeed, because we review the district court's forum non conveniens determination for abuse of discretion, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), and the relevant inquiry depends heavily on the particular facts of the case, our discussion is not meant to suggest anything about other such motions that may be brought in these cases.

II

The Supreme Court recently revisited the topic of forum non conveniens in Sinochem International Co. v. Malaysia International Shipping Corp., ___ U.S. ___ 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), which dealt with the question whether a district court may dismiss on grounds of forum non conveniens without first assuring that it has jurisdiction over the suit. In the course of deciding that it is permissible to take up the issue about the forum first, the Court reviewed the basic contours of forum non conveniens:

A federal court has discretion to dismiss a case on the ground of forum non conveniens when an alternative forum has jurisdiction to hear [the] case, and ... trial in the chosen forum would establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiff's convenience, or ... the chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems. Dismissal for forum non conveniens reflects a court's assessment of a range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality. We have characterized forum non conveniens as, essentially, a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.

Sinochem, 127 S.Ct. at 1190.

The Court continues to recognize Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), as the leading case recognizing and delineating the common-law doctrine of forum non conveniens. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); American Dredging Co. v. Miller, 510 U.S. 443, 447-49, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). In American Dredging, the Court described the scope of the doctrine and repeated the passage from Gulf Oil that describes what ought to inform a district court's decision:

An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing,...