Hefferan v. Ethicon Endo-Surgery Inc.

• Citation: 828 F.3d 488
• Decision Date: 08 July 2016
• Docket Number: No. 15–3619,15–3619
• Parties: Brandon Hefferan; Sabine Hefferan, Plaintiffs–Appellants, v. Ethicon Endo–Surgery Inc.; Johnson & Johnson, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

828 F.3d 488

Brandon Hefferan; Sabine Hefferan, Plaintiffs–Appellants
v.
Ethicon Endo–Surgery Inc.; Johnson & Johnson, Defendants–Appellees.

No. 15–3619

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2016
Decided and Filed: July 8, 2016

828 F.3d 492

ARGUED: Sara Ann Strickland, Morelli Ratner Law Firm PLLC, New York, New York, for Appellants. David F. Abernethy, Drinker, Biddle & Reath LLP, Philadelphia, Pennsylvania, for Appellees. ON BRIEF: Adam E. Deutsch, Morelli Ratner Law Firm PLLC, New York, New York, for Appellants. David F. Abernethy, Drinker, Biddle & Reath LLP, Philadelphia, Pennsylvania, Susanne M. Cetrulo, Cetrulo Mowery & Hicks, PSC, Edgewood, Kentucky, for Appellees.

Before: BOGGS, and ROGERS, Circuit Judges; and BERG, District Judge.^*

OPINION

BOGGS, Circuit Judge.

Brandon and Sabine Hefferan, an American husband and German wife, have lived together in Germany since 2002. They seek damages for complications that arose when a surgical stapler manufactured by American corporation Ethicon Endo-Surgery allegedly malfunctioned during a surgery that Brandon Hefferan underwent in Germany. The district court granted Ethicon's motion to dismiss on the ground of forum non conveniens in favor of litigating in Germany. That decision was not an abuse of the court's discretion. We therefore affirm.

I

Since 2002, Brandon and Sabine Hefferan have lived as a married couple in Germany. In 2012, complications arose during a surgery that Brandon Hefferan underwent there. As a result, he has allegedly endured twenty follow-up surgeries and sustained severe permanent injuries. The Hefferans point the finger at a surgical stapler used during his initial procedure, which they claim malfunctioned. The stapler was manufactured in Mexico by Ethicon Endo–Surgery, which is incorporated and headquartered in Ohio.

In 2014, the Hefferans filed suit in the District of New Jersey against Ethicon and its sole shareholder Johnson & Johnson, which is incorporated and headquartered in New Jersey (collectively “Ethicon”). Ethicon moved to dismiss based on forum non conveniens. Instead of ruling on the motion, the New Jersey court transferred the case to the Southern District of Ohio. The Hefferans filed an amended complaint in the Ohio federal court stating claims for negligence, loss of consortium, and violations of Ohio product-liability law. Ethicon again moved to dismiss on forum non conveniens grounds in favor of proceeding in Germany. The district court granted the motion and the Hefferans appealed.

II

“Under the common law doctrine of forum non conveniens, a district court may decline to exercise its jurisdiction, even though the court has jurisdiction and venue.” Rustal Trading US, Inc. v. Makki , 17 Fed.Appx. 331, 335 (6th Cir.2001) (quotation marks omitted). Forum non conveniens dismissal involves a three-step analysis. 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. Id. at 335–36 ; Zions First Nat'l Bank v. Moto Diesel Mexicana, S.A. de C.V. , 629 F.3d 520, 523–24 (6th Cir.2010).

828 F.3d 493

We review a district court's forum non conveniens determination for abuse of discretion. Piper Aircraft Co. v. Reyno , 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). To overturn, we must have “a definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Corp. , 865 F.2d 789, 790 (6th Cir.1989). In forum non conveniens cases, the district court's decision deserves substantial deference when the court has considered all relevant public- and private-interest factors, and has balanced those factors reasonably. Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide , 545 F.3d 357, 364 (6th Cir.2008).

The Hefferans appeal the grant of Ethicon's forum non conveniens motion on three grounds. They contend that: (1) their choice of forum was not accorded proper deference; (2) Germany is inadequate as an alternative forum; and (3) the court erroneously weighed the public- and private-interest factors. For reasons that follow, we uphold the district court's order.

A

Since each forum non conveniens case “turns on its facts,” the Supreme Court has “repeatedly rejected the use of per se rules in applying the doctrine.” Am. Dredging Co. v. Miller , 510 U.S. 443, 455, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (quotation marks omitted). Nonetheless, we have found useful a few basic observations about a plaintiff's choice of forum. When a domestic plaintiff initiates a suit in his home forum, that choice is normally entitled great deference because it is presumptively convenient for the plaintiff. Zions , 629 F.3d at 523–24. In contrast, a foreign plaintiff's forum choice is usually accorded less deference because the assumption of convenience is “much less reasonable.” Piper Aircraft , 454 U.S. at 256, 102 S.Ct. 252.

“In general, the standard of deference for a U.S. plaintiff's choice of a home forum permits dismissal only when the defendant ‘establishes such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, which may be shown to be slight or nonexistent.’ ” Duha v. Agrium, Inc. , 448 F.3d 867, 873–74 (6th Cir.2006) (quoting Koster v. (Am.) Lumbermens Mut. Cas. Co. , 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) ) (alterations omitted). Although descriptively accurate and useful in many cases, that is not an unyielding rule that district courts must apply with equal force in every situation. Indeed, the Duha court distinguished a case where the “somewhat attenuated” connection of an American plaintiff to the United States justified less deference to his forum choice. Id. at 875.

The deference normally accorded an American plaintiff's forum choice is based on the premise that holds in some, but not all, cases that the decision to bring suit in one's home forum is a matter of convenience. Piper Aircraft , 454 U.S. at 255–56, 102 S.Ct. 252 (“When the home forum has been chosen, it is reasonable to assume that this choice is convenient.”); Koster , 330 U.S. at 524, 67 S.Ct. 828 (defendants must establish “oppressiveness and vexation ... out of all proportion to plaintiff's convenience”). Yet “[c]itizenship and residence are” but “proxies for convenience.” Piper Aircraft , 454 U.S. at 256 n. 24, 102 S.Ct. 252 (stating reasoning of Pain v. United Techs. Corp. , 637 F.2d 775, 797 (D.C.Cir.1980) ). Although useful, they are indirect (and sometimes imperfect) estimates of convenience. Underlying the convenience presumption is a concern that defendants will uproot plaintiffs as a form of litigation strategy. See

828 F.3d 494

id. at 255 n. 23, 102 S.Ct. 252 The degree of deference owed a plaintiff's forum choice will inevitably vary with circumstances, even among plaintiffs who claim the United States as home. As one circuit has put it, the greater the plaintiff's connection to the United States “and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens .” Iragorri v. United Techs. Corp. , 274 F.3d 65, 72 (2d Cir.2001) (en banc); see also Kisano Trade & Invest Ltd. v. Lemster , 737 F.3d 869, 876 (3d Cir.2013).

This sliding convenience scale explains the disparity in deference that we have accorded the forum choices of differently situated American plaintiffs. In Kryvicky v. Scandinavian Airlines System, for example, an American who had been abroad for at least eight years was living in Spain where her husband died in a plane crash. 807 F.2d 514 (6th Cir.1986). After reestablishing United States residency, she brought a wrongful-death action against an American company and a foreign company. Although the court gave Kryvicky's choice of home forum greater deference than if she were foreign, it upheld the district court's forum non conveniens dismissal. Id. at 517. In a later case, Duha v. Agrium, we noted that Kryvicky's “actual ties to the home forum were much weaker” than those of an American plaintiff on a two-year work assignment abroad who maintained United States residency. 448 F.3d at 875.

The district court acted within its discretion when it concluded that the Hefferans' forum choice is entitled to less deference than those of American plaintiffs living in the United States. A person's true home, the centuries-old concept of domicile, requires physical presence and intent to remain: that is, “residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.” Mitchell v. United States , 88 U.S. 21 Wall. 350, 352, 22 L.Ed. 584 (1874) (citation omitted); see also Restatement (Second) of Conflicts § 15(2) (1971) (domicile of choice requires “physical presence” and “an attitude of mind”); Black's Law Dictionary 592 (10th ed. 2014). Once established, domicile continues until it is superseded. See Restatement (Second) of Conflicts § 19. The Hefferans advise that...