Dowling v. Richardson-Merrell, Inc.

• Decision Date: 15 February 1984
• Docket Number: RICHARDSON-MERREL,Nos. 82-3617,INC,s. 82-3617
• Citation: 727 F.2d 608
• Parties: Steven Thomas DOWLING, et al., Plaintiffs-Appellants, v., Defendant-Appellee. to 82-3628.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 608

727 F.2d 608

Steven Thomas DOWLING, et al., Plaintiffs-Appellants, v. RICHARDSON-MERRELL, INC., Defendant-Appellee.

Nos. 82-3617 to 82-3628.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 30, 1983.

Decided Feb. 15, 1984.

Stanley M. Chesley, argued, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, George Kokus, argued (Lead Counsel), Cohen & Kokus, Miami, Fla., Lee S. Goldsmith, New York City, for plaintiffs-appellants in all cases.

Arnold R. Ginsberg, Horton, Perse & Ginsberg, Miami, Fla., for plaintiff-appellant in No. 82-3617.

Davis, Polk & Wardwell, New York City, for defendant-appellee in all cases.

Peter N. Perretti, argued, Riker, Danzig, Scherer & Hyland, Morristown, N.J., Kent Before LIVELY, Chief Circuit Judge, KRUPANSKY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge. ^*

W. Seifried, Frank C. Woodside, III, (Lead Counsel), Christine L. McBroom, Dinsmore & Shohl, Cincinnati, Ohio, for defendant-appellee in No. 82-3617.

LIVELY, Chief Circuit Judge.

The district court dismissed twelve actions brought by foreign nationals against an American drug manufacturer on grounds of forum non conveniens. The appeals were consolidated by order of this court and present the single issue of whether the district court clearly abused its discretion in dismissing the actions and in denying a motion for reconsideration.

I.

A.

The complaints were filed originally in the United States District Court for the Southern District of New York. Except for names and dates the complaints are identical. All are based on diversity jurisdiction and each plaintiff is described as "a citizen and/or subject of Great Britain." The defendant, Richardson-Merrell, Inc., was sued as a Delaware corporation with its international division in New York State. After the defendant filed its answers and motions to dismiss on forum non conveniens grounds the plaintiffs filed a motion to transfer the actions to the Southern District of Ohio. Noting that the defendant had moved its principal office to Cincinnati, the district court transferred the twelve cases to the Southern District of Ohio, stipulating that the pending motions to dismiss might be renewed in that court.

Each complaint sought damages on behalf of an infant plaintiff alleged to have suffered serious birth defects as the result of its mother's ingestion of the drug Debendox during pregnancy, and on behalf of the parents. Debendox was alleged to be identical to the drug Bendectin which the defendant manufactured and marketed within the United States. Each complaint charged that the planning, manufacturing, animal testing, primary human studies and monitoring of Bendectin took place in the United States. After introducing Bendectin in the United States in 1957, according to the complaints, "[t]he formulation was marketed in Great Britain beginning in 1968 under the trade name DEBENDOX." The plaintiffs based their claims for damages on the assertion that findings from animal testing indicated that Bendectin caused dose-related increases in the number of deformities observed in offspring of test animals and that these findings were concealed "from the worldwide medical community and the National Health Authorities in Great Britain." In addition to the claims of fraud and misrepresentation the complaints contained counts based on breach of implied and express warranty, strict liability in tort and negligence. Compensatory and punitive damages are sought.

The answers of the defendant denied all claims of wrongful or negligent conduct while admitting that its wholly owned foreign corporation marketed Debendox in Great Britain. The answers pled as an affirmative defense that the district court was not a convenient forum for prosecution of the actions. The answers also contained notices that the defendant intended to rely on applicable law of the United Kingdom, stating that the plaintiffs were citizens or subjects of the United Kingdom, that Debendox was prescribed for the mothers by physicians in the United Kingdom and that the infant plaintiffs were born there.

B.

The defendant renewed its motions to dismiss in the transferee court. An appendix accompanying the renewed motion contained three affidavits. One, by an official of the defendant, merely recited changes in The plaintiffs filed an affidavit by one of their attorneys in opposition to the defendant's motion to dismiss. This affidavit did not contradict any of the factual statements in the defendant's affidavits. It "took issue" with the opinion of the English solicitor, arguing that the plaintiffs could not bring suit against the defendant in the United Kingdom without its consent. The document is actually more a brief in opposition to the motion than an affidavit. Following transfer the plaintiffs filed a motion requesting leave to amend their complaints and both sides filed briefs on this motion.

                its corporate structure and in the location of its headquarters.  Another, by an English solicitor, contained an opinion that the infant plaintiffs could state good causes of action under various theories of English law.  ("Thus, there is available in this country a good and well tried means of redress and remedy in respect of the matters of which complaint is made.")    The third affidavit was that of the Managing Director of Merrell Pharmaceuticals, Ltd. of England.  The affiant made the following statements which remain uncontradicted:  Debendox had at all times been manufactured, sold and distributed in the United Kingdom by companies incorporated under the Companies Acts of England and Wales and governed by English law.  Until 1979 Debendox was manufactured by Boots Pure Drug Company, Ltd., an independent corporation and since that time by a subsidiary of Merrell Pharmaceuticals, Ltd.  The sale, promotion and distribution of Debendox have been carried out by Merrell Pharmaceuticals, Ltd. and its English subsidiaries.  The product licenses for Debendox were issued by the Department of Health and Social Security of the United Kingdom to the English companies.  No license was issued to the American defendant, Richardson-Merrell, Inc.  Debendox has been manufactured and marketed in accordance with existing laws of England.  The English Committee on the Safety of Medicines has not required or requested any change in the formulation of Debendox since its introduction in 1958
                

C.

On August 24, 1982 the district court issued an order granting the defendant's motion to dismiss on forum non conveniens grounds. See In re Richardson-Merrell, Inc., 545 F.Supp. 1130 (S.D.Ohio 1982). Dismissal was subject to the following conditions:

(1) defendant's consent to suit and acceptance of process in the United Kingdom in any civil actions filed by plaintiffs on their claims;

(2) defendant's agreement to make available any documents or witnesses within its control that are necessary for fair adjudication of any action brought in the United Kingdom by the plaintiffs on their claims;

(3) defendant's consent to pay judgment or judgments which may be rendered against it in the United Kingdom in any civil action brought by plaintiffs on their claims; and

(4) defendant's agreement to waive any statute of limitations defense that did not exist prior to the institution of any of these actions.

Id. at 1137. The defendant accepted all four conditions.

Plaintiffs filed a motion for reconsideration in which they stated that they had understood their response to the motion to dismiss would not be due until after the court had ruled on their motion to amend the complaints. They filed a memorandum and affidavits in support of the motion for reconsideration. One affidavit was made by an attorney for the plaintiffs. In this affidavit the attorney offered his opinion, based on the trial of a Bendectin case in Florida, of the "private factors" to be considered in disposing of the forum non conveniens motion. He further stated that one of the principal witnesses on the marketing of Debendox in Britain was now a resident of Connecticut and that in his opinion at least 80 per cent of the trial testimony of Bendectin/Debendox cases would be based upon witnesses and documents located in the United States. He also offered his The second affidavit was that of a Scottish solicitor who had examined the pleadings in the American cases and the affidavit of the English solicitor in support of the defendant's motion to dismiss. The affiant pointed out differences between the laws of England and Scotland. He concluded that there were questions about the jurisdiction of Scottish courts and the only way to avoid this issue "would be if Richardson Merrell prorogated the jurisdiction of the Scottish Courts, that is to say accepted their jurisdiction without question." The affiant stated that pursuit of the claims in Scottish courts would be expensive and duplicative of efforts already made in the United States. He opined that the Scottish plaintiffs could proceed in English courts, but this would add further to their litigation expenses, and might result in loss of their claims under Scottish limitations statutes if the English courts should ultimately refuse to hear their claims.

                opinion that "the 'forum' available in England is more 'form' than substance."    He attached a list of witnesses, with addresses, who testified live or by deposition in the Florida trial
                

The relevance of Scottish law arises from the fact that three of the infant plaintiffs and their parents are Scottish subjects. Though at an earlier place in their memorandum the plaintiffs stated that they "do not deny that another forum exists [ ]," in discussing the Scottish plaintiffs they stated that a "question arises as to whether there is an alternative forum for those three cases."

Subsequently the plaintiffs filed two additional affidavits, one by an English professor of law and the other by an English solicitor admitted to practice in New York. Both referred...