Boaz v. Boyle & Co.

Decision Date21 November 1995
Docket NumberNo. B076776,B076776
Citation46 Cal.Rptr.2d 888,40 Cal.App.4th 700
CourtCalifornia Court of Appeals Court of Appeals
Parties, 95 Cal. Daily Op. Serv. 8923, 95 Daily Journal D.A.R. 15,482 Michael BOAZ, a minor, etc., et al., Plaintiffs and Appellants, v. BOYLE & COMPANY, INC., et al., Defendants and Respondents. *

Robins, Kaplan, Miller and Ciresi, Simke, Chodos, Silberfeld & Anteau, Inc., Roman M. Silberfeld, Shann D. Winesett and Gretchen C. Pansing, Los Angeles, for plaintiffs and appellants.

Burris, Drulias & Gartenberg, Donald S. Burris, Torgny R. Nilsson, Los Angeles Anderson Kill Olick & Oshinsky, Jeffrey L. Glatzer and Eric D. Statman, New York City, for defendant and respondent Emons Industries, Inc.

Crosby, Heafey, Roach & May, James M. Wood, James C. Martin and Joseph P. Mascovich, Oakland, for defendant and respondent Eli Lilly and Company.

Dickson, Carlson & Campillo and William A. Hanssen for defendants and respondents E.R. Squibb & Sons, Inc., Merrell Dow Pharmaceuticals, Inc. and Carnrick Laboratories, Inc.

Sedgwick, Detert, Moran & Arnold, Michael F. Healy and Kathryn H. Edwards for defendant and respondent The Upjohn Company.

Hawkins, Schnabel, Lindahl & Beck and Laurence H. Schnabel for defendant and respondent Abbott Laboratories.

Adams, Duque & Hazeltine, Bannan, Green, Smith & Frank and Ronald F. Frank for defendant and respondent Dart Industries, Inc.

Gibson, Dunn & Crutcher, G. Edward Fitzgerald and Peter J. Arturo for defendant and respondent McNeilab, Inc.

Hillsinger & Costanzo, Michael V. Madigan and Edward A. DeBuys for defendant and respondent Merck, Sharp & Dohme, A Division of Merck & Co., Inc.

Prindle, Decker & Amaro, Mary Kirk Hillyard and Thomas A. Steig for defendant and respondent Premo Pharmaceutical Laboratories, Inc.

Leibman, Reiner, Nachison & Walsh and Craig Nelson for defendant and respondent Lannett Company.

Selman, Breitman & Burgess and John S. Nowlton for defendants and respondents Burroughs Wellcome Co. and Kremers-Urban Company.

EPSTEIN, Associate Justice.

The grandmothers of the plaintiff-appellants in this case ingested the drug diethylstilbestrol (DES) while pregnant with appellants' mothers. It is claimed that, as a result of the ingestion, appellants' mothers suffered disabilities that manifested themselves at various points after birth and that their children (appellants) suffered similar injuries when they were born. All but one of the appellants is a resident of the state of New York or New Jersey. The DES ingestion occurred in the state of New York. All of them pursued actions against defendant-respondents in that state. Each of the respondents manufactured DES during the period of the grandmothers' ingestion, and all but one does business in California. Only one appellant is domiciled in this state. New York State declined to recognize the preconception tort proffered by appellants. Having failed to succeed in New York, appellants sought relief in California.

The trial court dismissed the actions of the nonresident appellants under the doctrine forum non conveniens. (The action of the California appellant, Lara Ameen, was not dismissed.) We shall affirm the orders of dismissal. We do so because the only basis for bringing the actions in this state is the prospect that the law in California is more hospitable to their claims than the law of New York. We follow the decision in Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 6 Cal.Rptr.2d 38, in holding that this circumstance is not sufficient to compel a California court to entertain the nonresident appellants' suit.

One of the defendant-respondents, Emons Industries, Inc., does not do business in California. It sold DES during the period appellants' grandmothers ingested it, but its activities never subjected it to the general jurisdiction of this state. There is a basis to conclude that it is subject to special jurisdiction because of sales it made to physicians here during the relevant period. But we agree with the trial court that there is no justification in the record for an assertion of jurisdiction on that account by any of the appellants because there is no showing or claim that Emons's activities in this state contributed to the injuries suffered by any of the appellants before us on this appeal.

We conclude, therefore, that the trial court did not err, and we affirm its orders.


DES is a synthetic estrogen compound, developed and marketed for the purpose of preventing miscarriage. It caused cancerous growths in many of the women who ingested it, and caused cancer and other disease to their children as a result of the in utero exposure. The tragic history of this drug, and the trail of injuries it has caused, is outlined in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 594, 163 Cal.Rptr. 132, 607 P.2d 924, Bichler v. Eli Lilly & Co. (1982) 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182, In re DES Cases (E.D.N.Y.1992) 789 F.Supp. 552, and other places. We take it as established for purposes of the forum non conveniens and jurisdictional motions before the trial court, and here, that appellants' grandmothers ingested the drug while pregnant with appellants' mothers, and that their doing so ultimately manifested itself in injuries to appellants. We also assume that each of the respondents manufactured and sold DES during the 30-year period (1941-1971) that it was on the market.

The respondents were sued in New York, where each of them does business and is subject to the general jurisdiction of the state courts. Motions were brought challenging the viability of their causes of action, depending as they did on preconception torts. That is a theory generally rejected in New York. (Albala v. City of New York (1981) 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786.) All but one of the appellants were born in New York or New Jersey and are residents of one of those states. The exception, Lara Ameen, was born in California and is now a resident of this state. The New York trial court ruled for respondents, the intermediate court reversed, and the New York Court of Appeals--the highest court of that state--finally settled the issue. Framing the question as "whether the liability of manufacturers of [DES] should extend to a so-called 'third generation' plaintiff, the granddaughter of a woman who ingested the drug," the court answered in the negative and affirmed the trial court's grant of summary judgment in favor of the manufacturers. (Enright v. Eli Lilly & Co. (1991) 77 N.Y.2d 377, 568 N.Y.S.2d 550, 551, 570 N.E.2d 198, 199; cert. den., 502 U.S. 868, 112 S.Ct. 197, 116 L.Ed.2d 157.)

The appellants then filed actions against the same respondents in California. Respondent Eli Lilly & Co. moved to dismiss on forum non conveniens grounds. Each of the appellants other than Ms. Ameen, and all of the respondents, agreed to be bound (at the trial court level) by the ruling in the case of appellant Boaz. The trial court ruled that New York is a suitable, alternative forum, and that the balance of private and public factors did not favor retaining the action for trial in California. The case of each appellant--other than Ms. Ameen--was dismissed on forum non conveniens grounds. Insofar as the record shows, Ms. Ameen's case is proceeding against each of the respondents other than Emons. Emons moved separately to quash service and dismiss for lack of jurisdiction as to all of the appellants, including Ms. Ameen. Its motion was granted. The parties have agreed that applicability of the forum non conveniens doctrine shall be based on the factual and procedural history in the New York Enright decision.

A timely notice of appeal was filed on behalf of each of the appellants. The orders are appealable. (Code Civ.Proc., § 904.1, subd. (a)(3); all further statutory citations are to that code.) We granted a motion to consolidate the appeals, 1 and we now affirm.

I Forum Non Conveniens

"Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true." (Brandeis, J., in Canada Malting Co., Ltd. v. Paterson Steamships, Ltd. (1932) 285 U.S. 413, 422, 52 S.Ct. 413, 415, 76 L.Ed. 837.) A principal reason for not exercising jurisdiction, recognized by state and federal courts, is that the forum is not convenient. This doctrine, Latinized in the rubric "forum non conveniens," has a long history. (See Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 248, fn. 13, 102 S.Ct. 252, 262, fn. 13, 70 L.Ed.2d 419.) It was crystallized by our national court in Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (see Piper, supra, at p. 248, 102 S.Ct. at p. 262), and by the California court in Price v. Atchison, T. & S.F.Ry. Co. (1954) 42 Cal.2d 577, 580, 268 P.2d 457.

The principle "is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." (Gulf Oil, supra, 330 U.S. at p. 507, 67 S.Ct. at p. 842.) The rule is codified in section 410.30: "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just."

The rule is "an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) The defendant, as moving party, bears the burden of proof on the issue, and "[t]he granting or denial of such a motion is within the trial court's discretion, and substantial deference is accorded its determination in this regard." (Id. at p. 751, 1...

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