Bewers v. American Home Products Corp.

• Decision Date: 01 March 1984
• Citation: 472 N.Y.S.2d 637,99 A.D.2d 949
• Parties: Gwendoline Brown BEWERS et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants. Sandra Patricia CLIFTON et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants. Sandra J. HOWELLS et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants, and Knoll Pharmaceutical Company, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 637

472 N.Y.S.2d 637

99 A.D.2d 949

Gwendoline Brown BEWERS et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants.

Sandra Patricia CLIFTON et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants.

Sandra J. HOWELLS et al., Plaintiffs-Respondents, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Defendants-Appellants, and Knoll Pharmaceutical Company, et al., Defendants.

Supreme Court, Appellate Division First Department.

March 1, 1984.

W.H. Walker, III, J.J. Carlino, New York City, for plaintiffs-respondents.

M.S. Levin, New York City, for defendants-appellants.

Before KUPFERMAN, J.P., and SANDLER, CARRO, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, 117 Misc.2d 991, 459 N.Y.S.2d 666, entered December 7, 1982, which denied defendants' motion to dismiss the action pursuant to CPLR Rule 327 on grounds of forum non conveniens, is unanimously reversed, on the law, the facts and in the exercise of discretion in the interest of justice, without costs, and defendants' motion to dismiss is granted, on the condition that within 90 days of service of the order entered hereon, defendants-appellants stipulate: (1) to waive objection to suit being brought in the United Kingdom for the relief sought in the complaints herein and to waive objection to the jurisdiction of the courts of the United Kingdom in this matter; (2) to accept the service of process in the United Kingdom; (3) to waive objection to compulsory process requiring the appearances of witnesses and production of documents and to make the same available at their own expense; (4) to consent to full faith and credit for any judgment obtained against them in the United Kingdom and to consent to pay the same; and (5) to waive any defense of limitation of time, whether statutory or otherwise, provided, however, that the suit in the United Kingdom be commenced within 90 days from the date of service of the defendants' stipulation upon counsel for the plaintiffs. In the event of defendants' failure to comply with the foregoing conditions the order of Supreme Court is affirmed without costs.

The plaintiffs, all of whom are residents of the United Kingdom make claim for personal injuries and loss of consortium arising from the ingestion by the female plaintiffs of oral contraceptives known as Ovran and Ovranette. These products, which are available by prescription only, allegedly caused the female plaintiffs to suffer severe and permanently disabling thromboemoblic strokes during March and April of 1977. The complaints which seek to recover compensatory and punitive damages sound in negligence, breach of warranty, strict liability in tort and fraud, as well as the aforementioned loss of consortium.

Defendant American Home Products Inc., ("AHP") is a Delaware Corporation with its principal place of business in New York. Defendant Wyeth Laboratories, Division of American Home Products is not a discrete legal entity but is a part of AHP. The other defendant-appellant, Wyeth Laboratories Inc., is a wholly-owned subsidiary of AHP, and is a New York corporation with its principal place of business in Pennsylvania. AHP holds the appropriate licenses to the pharmaceuticals which plaintiffs allege caused their injuries.

Defendants sought dismissal of plaintiffs' actions on the grounds of forum non conveniens, claiming that the injuries allegedly suffered by plaintiffs all occurred in the United Kingdom, that the drugs complained of were prescribed, purchased and ingested in England. Moreover, argue defendants, the pharmaceuticals were manufactured, tested, labelled, marketed and distributed in the United Kingdom by or on behalf of an English company, John Wyeth and Brother, Ltd., which holds a subsidiary license from AHP. Thus, the defendants contend, New York is an inconvenient forum and the matter should be litigated in the United Kingdom.

Plaintiffs assert that defendants, while in New York decided and undertook to...