Hefferan v. Ethicon Endo-Surgery, Inc.

• Decision Date: 08 May 2015
• Docket Number: Case No. 1:14-cv-911
• Citation: Hefferan v. Ethicon Endo-Surgery, Inc., Case No. 1:14-cv-911 (S.D. Ohio May 08, 2015)
• Parties: BRANDON HEFFERAN, et al., Plaintiffs, v. ETHICON ENDO-SURGERY, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

BRANDON HEFFERAN, et al., Plaintiffs, v. ETHICON ENDO-SURGERY, INC., et al., Defendants.

Case No. 1:14-cv-911

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

May 8, 2015

Judge Timothy S. Black

ORDER GRANTING DEFENDANTS' RENEWED MOTION TO DISMISS BASED ON THE DOCTRINE OF FORUM NON CONVENIENS(Doc. 36)

This civil action is before the Court on Defendants' renewed motion to dismiss based on the doctrine of forum non conveniens(Doc. 36) and the parties' responsive memoranda (Docs. 39, 41).¹

I.FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Brandon and Sabine Hefferan bring claims against DefendantsEthicon Endo-Surgery, Inc. and Johnson & Johnson for negligence, violations of the Ohio Product Liability Act(Ohio Rev. Code § 2307.71 et seq.),² and loss of consortium.(Doc. 35).Plaintiffs allege that Brandon Hefferan was injured by an Ethicon surgical staplerused in a hemorrhoidectomy performed in July 2012 in Simmerath, Germany.(Id.at ¶¶ 1, 2).Plaintiffs seek compensatory damages, punitive damages, attorney's fees, costs and disbursements of this action, prejudgment and post-judgment interest, and any other relief the Court deems appropriate.(Id.at ¶ 13).

PlaintiffBrandon Hefferan is a U.S. citizen domiciled in Michigan and residing in Germany.(Doc. 35 at ¶ 5).PlaintiffSabine Hefferan, Brandon Hefferan's spouse, is a German citizen who resides in Germany.(Id.at ¶¶ 6, 62).DefendantEthicon Endo-Surgery("EES") is an Ohio corporation with its principal place of business in Blue Ash, Ohio.(Id.at ¶ 6).Defendant Johnson & Johnson ("J&J") is a New Jersey corporation with its principal place of business in New Brunswick, New Jersey.(Id.at ¶ 8).

Defendant EES distributed the PPH 03 surgical stapler allegedly used in PlaintiffBrandon Hefferan's surgery.(Doc. 36-7 at ¶ 3).The overall direction of EES' business, and work relating to the design and marketing of the stapler and to regulatory compliance and quality control, took place principally at EES's facility in Blue Ash, Ohio.(Id.at ¶ 4).The staplers are manufactured in Juarez, Mexico.(Id.at ¶ 5).J&J is the indirect corporate parent of EES, but had no role in the design, manufacture, or sale of the stapler at issue.(Id.at ¶ 6).

Medical records show that all remedial treatment intended to address complications arising from PlaintiffBrandon Hefferan's original surgery occurred in Germany.(Doc. 36-3;Doc. 36-4).Plaintiffs' initial disclosures identify thirteen witnesses with discoverable information, and all but one live in Germany.(Doc. 36-4).Plaintiffs also identified two categories of unnamed persons with discoverable information: doctors andmedical providers at two German hospitals.(Id.)Defendants identified two individuals with discoverable information, both in the Southern District of Ohio.(Doc. 36-6).

Plaintiffs filed this civil action in New Jersey (Doc. 1), and Defendants filed a motion to dismiss based on the doctrine of forum non conveniens(Doc. 20).The New Jersey District Court declined to decide whether this civil action should be dismissed, instead concluding that the action had no connection to that District and transferred the case to this District.(SeeNovember 25, 2014 Minute Entry).Following transfer to this Court, Plaintiffs filed an amended complaint (Doc. 35) and Defendants renewed their motion to dismiss based on the doctrine of forum non conveniens(Doc. 36).

II.STANDARD OF REVIEW

Under the doctrine of forum non conveniens, "when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would 'establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience,' or when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems,'the court may, in the exercise of its sound discretion, dismiss the case."Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241(1981)(quotingKoster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, (1947)).Even if jurisdiction and venue are properly established, a court still has the discretion to dismiss an action on the grounds of forum non conveniens.Am. Dredging Co. v. Miller, 510 U.S. 443, 448(1994).

The Sixth Circuit has held that a "dismissal on forum non conveniens grounds is appropriate where the defendants established, first, that the claim can be heard in an available and adequate alternative forum and, second, that the balance of private and public factors . . . reveals that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court."Faurecia Exhaust Sys., Inc. v. Walker, 464 F.Supp.2d 700, 709(N.D. Ohio2006)(citingDuha v. Agrium, Inc., 448 F.3d 867(6th Cir.2006)).Ultimately, '"[t]he forum non conveniens determination is committed to the sound discretion of the trial court.[']"Barak v. Zeff, 289 F. App'x 907, 910(6th Cir.2008)(quotingPiper, 454 U.S. at 257).The doctrine of forum non conveniens"is a flexible one, requiring the court to weigh multiple factors relating to fairness and convenience based on the particular facts of the case."Rustal Trading US, Inc. v. Makki, 17 F. App'x 331, 335(6th Cir.2001).However, the ultimate inquiry in any forum non conveniens analysis is whether trial in a foreign forum "will best serve the convenience of the parties and the ends of justice."Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527(1947).

The Defendants"bea[r] the burden of proof on all elements of the forum non conveniens analysis."Norcold, Inc. v. Greg Lund Products Ltd., 109 F. Supp. 2d 819, 828(S.D. Ohio2000).

III.ANALYSIS

A.Adequate Alternative Forum

To dismiss a case for forum non conveniens, a defendant must first demonstrate that an adequate alternative forum exists and is available to resolve the dispute.Piper,454 U.S. at 255.An alternate forum meets these requirements "when the defendant is 'amenable to process' in the other jurisdiction" and the alternate forum "permit[s] litigation of the subject matter of the dispute."Id. at 254 n. 22(quotingGulf Oil v. Gilbert, 330 U.S. 501, 506-07(1947)).A forum is not adequate if the "remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all . . . ."Piper, 454 U.S. at 254.

"A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy all the benefits of an American court."DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 796(5th Cir.2007).Defendants can meet their burden of establishing an adequate forum by offering support, such as affidavits from experts, to demonstrate analogous causes of action and adequate remedies in the alternate forum.Stalinski v. Bakoczy, 41 F. Supp. 2d 755, 759(S.D. Ohio1998).³

Plaintiffs can sue Defendants in the Regional Court of Aachen, Germany.It has subject matter jurisdiction and German law provides a basis for their claims.(Doc. 36-8 at ¶¶ 5-22).Defendants have consented to service there and have stipulated that they will not plead limitations if Plaintiffs re-file within a period of time that this Court determines to be reasonable.(Doc. 36-7 at ¶ 11).That stipulation is effective in a German court.(Doc. 36-8 at ¶ 24).See, e.g., Mago Int'l LLC v. LHB AG, No. 13-civ-3370, 2014 U.S. Dist. LEXIS 85410, at *23-24(S.D.N.Y.June 18, 2014)("Germany would be an adequate alternative forum" because "LHB is subject to the service of process there, no German statute of limitations bars Mago's claim, and the forum would allow Mago's claim to be litigated").⁴

Plaintiffs argue that German courts do not provide an adequate forum because of differences between the substantive and procedural rules.However, the rights and remedies available in the foreign forum need not be identical to those available in a United States court for the foreign forum to be adequate.Wong v. PartyGaming, Ltd., 589 F.3d 821, 829-30(6th Cir.2009).Specifically, Plaintiffs argue that a German court would not have jurisdiction over the entire case, because Sabine Hefferan would have no claim for loss of consortium under German law.(Doc. 36-8 at ¶ 14).While Mrs. Hefferan could not pursue a claim for loss of consortium in Germany, that fact alone does not render Germany an inadequate forum.See, e.g., Adams v. Merck & Co., 353 F. App'x 960, 963(5th Cir.2009)("loss of consortium is a derivative cause of action that does not, standing alone, generally support maintaining jurisdiction in an inconvenient forum").⁵Plaintiffs also argue that German law will not allow punitive damages.Again, Plaintiffs inability to seek punitive damages does not make the German foruminadequate.See, e.g., Helog AG v. Kama Aerospace Corp., 228 F. Supp. 2d 91, 93(D. Conn.2002)(absence of punitive damages did not render Germany inadequate).

Plaintiff also argues that the absence of jury trials in Germany renders its courts inadequate.However, multiple federal courts have confirmed that German courts provide an adequate forum for civil claims.See, e.g., Adams, 353 F. App'x at 963;Chirag v. MT Marida Marguerite Schiffahrts, 983 F. Supp. 2d 188, 196-97(D. Conn.2013).

Plaintiffs also maintain that they will recover less money in Germany.While Plaintiffs may recover less money in Germany, that fact alone does not render the German forum inadequate.Windt, 544 F. Supp. 2d at 418.⁶Indeed, the fact that Plaintiffs, who chose to live in Germany and obtain medical care there, sued in the United States for injuries suffered in Germany because they thought doing so would get them more money, is a factor that favors dismissal.Iragorri v. United Techs. Corp., 274 F.3d 65, 72(2d Cir.2001)(the more plaintiffs' choice of United States forum is motivated by forum shopping the less deference to which it is entitled and the easier for defendants to obtain dismissal on forum non conveniens).⁷

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