Chambers v. Merrell-Dow Pharmaceuticals, Inc.

• Decision Date: 10 February 1988
• Docket Number: No. 87-276,MERRELL-DOW,87-276
• Citation: 35 Ohio St.3d 123,519 N.E.2d 370
• Parties: , 76 A.L.R.4th 1 CHAMBERS et al., Appellants, v.PHARMACEUTICALS, INC., Appellee.
• Court: Ohio Supreme Court

Page 123

35 Ohio St.3d 123

519 N.E.2d 370, 76 A.L.R.4th 1

CHAMBERS et al., Appellants, v. MERRELL-DOW PHARMACEUTICALS, INC., Appellee.

No. 87-276.

Supreme Court of Ohio.

Feb. 10, 1988.

Syllabus by the Court

1. The common-law doctrine of forum non conveniens is committed to the sound discretion of a court of general jurisdiction, and may be employed pursuant to the inherent powers of such court to achieve the ends of justice and convenience of the parties and witnesses. (Mattone v. Argentina [1931], 123 Ohio St. 393, 175 N.E. 603; Hughes v. Scaffide [1978], 53 Ohio St.2d 85, 7 O.O.3d 175, 372 N.E.2d 598; and State, ex rel. Consolidated Rail Corp., v. Gorman [1982], 70 Ohio St.2d 274, 24 O.O.3d 362, 436 N.E.2d 1357, distinguished.)

2. The doctrine of forum non conveniens is consistent, and does not conflict, with the intent or purpose of Civ.R. 3, relating to venue.

This case involves fifteen substantially identical actions filed separately in the Hamilton County Court of Common Pleas between September 20, 1984 and July 5, 1985. Each of the plaintiffs-appellants is a citizen of Great Britain; seven reside in England, seven are Scottish residents, and one is a resident of South Wales. Fourteen of the appellants are minor children and their parents, suing in their own right and as next friends of their children. Appellant Philip Smith Dodsworth, age twenty, filed suit in his own behalf. Each of the children experienced multiple birth defects, allegedly as the result of ingestion by their mothers of the drug Debendox during pregnancy.

Sole defendant-appellee, Merrell-Dow Pharmaceuticals, Inc., is a Delaware corporation, with its principal place of business in Hamilton County, Ohio. In the late 1950s, Merrell-Dow designed, developed, tested and marketed the drug Bendectin in the United States, to be used for the relief of nausea and vomiting during pregnancy. The British counterpart of this drug, Debendox, was marketed and distributed in the late 1950s and early 1960s by a wholly owned British subsidiary of Merrell-Dow, Richardson-Merrell, Ltd. (k.n.a. Merrell-Dow Pharmaceuticals, Ltd.). Debendox was approved by the Department of Health and Social Security in the United Kingdom, and was manufactured and assembled in the United Kingdom by the Boots Pure Drug Company Ltd. and Thomas, Kerfoot & Company Ltd.

Each of the actions herein seeks compensatory and punitive damages against Merrell-Dow under theories of negligence, breach of warranty, fraudulent misrepresentation and strict products liability. The first four actions were consolidated for trial on December 13, 1984, and the remaining eleven actions were consolidated on July 24, 1985. Merrell-Dow filed motions to dismiss each action on the basis of forum non conveniens. The trial court, finding the doctrine of forum non conveniens viable in Ohio, dismissed each group of actions on November 27, 1985 and January 10, 1986, respectively. The dismissals were conditioned upon: (1) defendant's consent to be sued and accept process in the United Kingdom in any action filed by plaintiffs on their claims, (2) defendant's agreement to make any necessary documents or witnesses available in any such actions, and (3) defendant's agreement to waive any applicable statute of limitations in any such suit. ¹ Merrell-Dow accepted these conditions to dismissal on November 19, 1985 and January 13, 1986.

The court of appeals affirmed, finding no abuse of discretion in the trial court's conditional dismissal of the actions in favor of the more appropriate British forum.

The cause is now before this court upon the allowance of a motion to certify the record.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, Jerome L. Skinner, Law Office of George A. Kokus, George A. Kokus, Felicia Smith, Allen T. Eaton & Associates and Allen T. Eaton, for appellants Chambers et al.

Santen, Shaffer & Hughes and William B. Singer, for appellant Dodsworth.

Dinsmore & Shohl, Frank C Woodside III, K.C. Green, Riker, Danzig, Scherer, Hyland & Perretti, Peter N. Perretti, Jr., Douglas Eakeley and Susan Scott, for appellee.

Grieser, Schafer, Blumenstiel & Slane Co., L.P.A., C. Richard Grieser and Mark A. Adams, urging reversal for amici curiae, Richard Grieser et al.

HOLMES, Justice.

The sole issue raised upon appeal is whether the trial court erred in dismissing these actions utilizing the common-law doctrine of forum non conveniens. Because we view the cautious application of this doctrine, which allows a court having proper jurisdiction to dismiss an action when to do so would further the ends of justice and promote the convenience of the parties, as an inherent power of the trial court, resting within its sound discretion, and because we find the lower court did not abuse its discretion herein, we affirm the dismissals below.

I

The doctrine of forum non conveniens has, since its origination in Scotland in the early nineteenth century, ² become firmly entrenched in the common law of virtually every Anglo-American jurisdiction. ³ "The principle of forum non conveniens 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 Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055. The doctrine assumes that proper jurisdiction and proper venue lie in the court which plaintiff has chosen, id. at 504, 67 S.Ct. at 840; cf. Ohio Civ.R. 3(D), and additionally presupposes the availability of another forum in which the defendant may be sued. ⁴ "[T]he doctrine furnishes criteria for choice between them." Gilbert, supra, at 507, 67 S.Ct. at 842.

The criteria set forth in Gilbert and other United States Supreme Court decisions are to be applied flexibly, with each case turning on its own facts. Williams v. Green Bay & Western Ry. Co. (1946), 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311. These factors may be divided into the private interests of the litigants and factors of public interest involving the courts and citizens of the forum. Important private interests include: "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, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained." Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843. The Gilbert court noted that "the plaintiffs' choice of forum should rarely be disturbed," id., particularly when the plaintiff has chosen his home forum. Koster v. Lumbermens Mut. Cas. Co. (1947), 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067. However, in Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 256, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, the court held: "Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference."

Public interest factors to be considered include the administrative difficulties and delay to other litigants caused by congested court calendars, the imposition of jury duty upon the citizens of a community which has very little relation to the litigation, a local interest in having localized controversies decided at home, and the appropriateness of litigating a case in a forum familiar with the applicable law. Gilbert, supra, 330 U.S. at 508-509, 67 S.Ct. at 843. Additionally, the court in Reyno, supra, 454 U.S. at 249-255, 102 S.Ct. at 262-266, noted that the possibility of an unfavorable change in law upon dismissal should not, standing alone, bar such dismissal, provided the remedy in the alternate forum is not so clearly inadequate as to amount to no remedy at all. Essentially, "the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." Koster, supra, 330 U.S. at 527, 67 S.Ct. at 833.

Once a court has determined that the alternate forum is the more convenient, the common-law doctrine requires the court to dismiss the action. Gilbert, supra, 330 U.S. at 512, 67 S.Ct. at 844. The dismissal may be conditioned upon the refiling of the action in the alternate forum with defendant consenting to its jurisdiction. Other conditions may include, inter alia, defendant's consent to waive any statute of limitations defense, consent to comply with the discovery rules of the original forum, and consent to satisfy any judgment rendered against it in the alternate forum. See, e.g., Dowling v. Richardson-Merrell, Inc. (C.A. 6, 1984), 727 F.2d 608; In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India (S.D.N.Y.1986), 634 F.Supp. 842, modified on appeal (C.A. 2, 1987), 809 F.2d 195.

The final aspect of the common-law doctrine is the applicable standard of review upon appeal from a forum non conveniens dismissal. "The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S., at 511-512 ; Koster, 330 U.S., at 531 . * * * " Reyno, supra, 454 U.S. at 257, 102 S.Ct. at 266.

We now turn to the arguments presented by appellants and amici curiae urging us to reject the adoption of forum non conveniens as the law of Ohio. We find none of their arguments persuasive. In Broderick v. Rosner (1935), 294 U.S. 629, 643, 55 S.Ct. 589, 592, 79 L.Ed. 1100, the court expressly held that a state court "may in appropriate cases apply the doctrine of forum non conveniens." See, also, Missouri, ex rel. Southern Ry. Co., v. Mayfield (1950), 340 U.S. 1, 71 S.Ct. 1, 95...