Bewers v. American Home Products Corp.
| Decision Date | 12 November 1982 |
| Docket Number | No. 3,No. 2,No. 1,1,2,3 |
| Citation | 459 N.Y.S.2d 666,117 Misc.2d 991 |
| Parties | Gwendoline Brown BEWERS and James Henry Bewers, Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, Wyeth Laboratories, a Division of American Home Products Corporation, and Wyeth Laboratories, Inc., Defendants. ActionSandra Patricia CLIFTON and Graham Christopher Clifton, Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, Wyeth Laboratories, a Division of American Home Products Corporation, Wyeth Laboratories, Inc., Defendants. ActionSandra J. HOWELLS and Michael Howells, Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, Wyeth Laboratories, a Division of American Home Products Corporation, Wyeth Laboratories, Inc., Knoll Pharmaceutical Company, Schering A.G., and Knoll A.G., Defendants. Action |
| Court | New York Supreme Court |
Steven B. Stein, Gerald C. Sterns, Walter H. Walker, III, Law Offices of Gerald C. Sterns, San Francisco, Cal., Lawrence Goldhirsch, Speiser & Krause, P.C., New York City, for plaintiffs.
Lewis Perkiss, New York City, for defendants; Edward W. Madeira, Jr., Murray S. Levin, Allan R. Stein, Pepper, Hamilton & Scheetz, Philadelphia, Pa., of counsel.
These three cases, consolidated by stipulation, come before the court on defendants' motions to dismiss on the ground of forum non conveniens. CPLR 327. Plaintiffs' choice of forum is being vigorously contested, probably not so much because defendants are unaccustomed to international travel, but because, as both sides know, the outcome of this procedural motion may well be dispositive of plaintiffs' claims.
Plaintiffs are three English women and their husbands. The women sue for serious personal injuries claimed to have resulted from ingestion of prescribed oral contraceptives. Their husbands sue for loss of consortium. Defendant American Home Products Corporation ("AHP") is a Delaware corporation with its main office or principal place of business in New York. Wyeth Laboratories Division of American Home Products Corporation is not a discrete legal entity but merely a part of AHP. Defendant Wyeth Laboratories, Inc. ("Wyeth Labs"), a wholly-owned subsidiary of AHP, is a New York corporation which does business in New York and has its principal place of business in Pennsylvania.
In Action No. 1 plaintiff Gwendoline Bewers claims that on the advice of her physician and without knowledge of the high risk of dangerous side effects she bought and used Ovran for approximately three years in accordance with the instructions included with the drug and that on April 17, 1977 she suffered a severe and disabling thromboembolic accident resulting, inter alia, in impairment of left-side bodily function, partial paralysis and impairment of speech. She claims that she can neither move nor speak normally and that she is incapable of gainful employment. Plaintiff Sandra Clifton in Action No. 2 makes similar allegations and claims to have suffered a similar thromboembolic accident on March 21, 1977.
In Action No. 3 plaintiff Sandra Jay Howells claims to have taken Ovranette and Gynovlar on the advice of her physician for approximately ten months and in March 1977 to have suffered a severe thromboembolic accident resulting, inter alia, in impairment of right-side bodily functions, partial paralysis, inability to move properly and incapacity for gainful employment.
Plaintiffs claim that defendants AHP and Wyeth Labs alone or together with the here unrepresented defendants with whom they acted in concert as joint venturers, caused the marketing, sale and distribution of Ovran, Ovranette and Gynovlar, three oral contraceptives, throughout the United Kingdom; that defendants actually knew that use of these drugs as oral contraceptives entailed an unreasonably high risk of dangerous side effects resulting in serious injury, disability or death; that, notwithstanding this knowledge, defendants unreasonably and intentionally and deliberately caused Ovran, Ovranette and Gynovlar to be distributed and marketed throughout the United Kingdom; and that defendants failed to give adequate warnings of the dangers in using these drugs.
Plaintiffs allege that defendants developed, tested, manufactured, advertised, marketed and sold the drugs in question within the United States at least as early as the early nineteen sixties; that at an unspecified time thereafter the Food and Drug Administration required that a label warning of the possible severe side effects of these drugs accompany their sale; and that thereafter defendants discontinued sale of these drugs in the United States and arranged for their distribution and sale within the United Kingdom, where the regulation of drugs is less stringent than in the United States and warning labels to the ultimate consumer are not required.
Plaintiffs sue for compensatory and punitive damages on six causes of action, described here in summary form: negligent manufacture and failure to warn; intentional misrepresentation and fraudulent concealment; breach of express and implied warranties; violation of strict liability in tort by unreasonably putting into the stream of commerce as a contraceptive a defective and dangerous product, made the more dangerous for failure to warn; and loss of consortium.
Defendants claim that since the injuries sued for occurred in England and since the drugs in question were prescribed, bought and ingested in England, these suits should be litigated in England rather than in New York. Defendants claim, moreover, that the drugs in question were tested, manufactured and marketed in England by or on behalf of an English company, John Wyeth and Brother, Ltd. Although defendants offer to submit to the jurisdiction of an English court as a condition of dismissal of these suits, they maintain that they are not the proper defendants to defend these suits and that suit should be brought against John Wyeth and Brother, Ltd. Defendants have not, however, moved for dismissal for failure to state a cause of action.
John Wyeth and Brother, Ltd. ("JWB"), is a wholly-owned subsidiary of defendant AHP. A crucial active ingredient in Ovran, and the ingredient alleged to have caused the injuries complained of in Action Nos. 1 and 2, is norgestrel. JWB pays royalties to AHP for the use of norgestrel. Ovran is the same combination that has been tested and marketed in countries other than Great Britain by other subsidiaries of AHP.
The crucial active ingredient in Ovranette, and the substance alleged to have caused Ms. Howell's stroke, is the synthetic progestogen levonorgestrel. Defendant AHP holds the exclusive license on levonorgestrel and JWB pays royalties to AHP for the use of levonorgestrel.
Largely a product of case law, the doctrine of forum non conveniens allows local courts to dismiss cases in which both subject matter and personal jurisdiction technically exist but which have so minimal a relationship with the forum state that the burden on the forum's judicial resources is not justified. Siegel, New York Practice 28 (1978), The court's inquiry must evaluate both the private interests at stake--the parties' interest in litigating the matter conveniently and justly--and the public interests--the states' interest in conserving judicial resources, the burden of applying foreign law if applicable and the policies relevant to the substantive issues raised in the lawsuit. Gulf Oil v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972); Varkonyi v. Varig, 22 N.Y.2d 333, 292 N.Y.S.2d 670, 239 N.E.2d 542 (1968); Bader & Bader v. Ford, 66 A.D.2d 642, 414 N.Y.S.2d 132 (First Dept.1979), appeal dismissed 48 N.Y.2d 649, 421 N.Y.S.2d 199, 396 N.E.2d 481 (1979).
The Supreme Court has highlighted the many disadvantages to plaintiffs (all present here) and the co-relative advantages to defendants (all present here) if defendants, through forum non conveniens dismissals, are able to get a transfer of a case to a jurisdiction outside of the United States.
First, all but six of the 50 American states ... offer strict liability.... Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice-of-law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions ... Even in the United Kingdom, most civil actions are not tried before a jury ... Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney's fees and do not tax losing parties with their opponents' attorney's fees ... Fifth, discovery is more extensive in American than in foreign courts. Piper v. Reyno, 454 U.S. 235, 252, n. 18, 102 S.Ct. 252, 264, n. 18, 70 L.Ed.2d 419, 433, n. 18.
The absolute precondition of dismissing a case on the ground that the forum in which it has been brought is inconvenient is the existence of an alternative forum where the suit may fairly and effectively be brought. Only if such a forum exists may the court consider whether its own convenience and that of the parties could best be served by having the suit brought in that alternative forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972); Mollendo Equipment Co., Inc. v. Sekisan Trading Co. Ltd., 56 A.D.2d 750, 392 N.Y.S.2d 427 (First Dept.1977).
A transfer of this case to England would result in a forfeiture of plaintiffs' strongest...
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