In re Factor Viii or Ix Concentrate Blood Prods.

• Decision Date: 17 January 2008
• Docket Number: No. 04 C 1446.,No. 93 C 7452.,MDL 986.,93 C 7452.,04 C 1446.
• Citation: 531 F.Supp.2d 957
• Parties: In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION. Abad, et al. v. Bayer Corp., et al.
• Court: U.S. District Court — Northern District of Illinois

531 F.Supp.2d 957

In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION Abad, et al. v. Bayer Corp., et al.

No. 93 C 7452.

No. 04 C 1446.

MDL 986.

United States District Court, N.D. Illinois, Eastern Division.

January 17, 2008.

MEMORANDUM OPINION

(Ruling on Argentina Forum Non Convenient; Motion)

JOHN F. GRADY, District Judge.

The plaintiffs in this multidistrict litigation are persons suffering from hemophilia who claim to have become infected with HIV or hepatitis C as a result of using factor concentrates (blood-clotting products derived from the plasma of blood donors) manufactured by the four defendant pharmaceutical companies. The litigation is long-standing and now in its "second generation," consisting largely of cases brought by residents" of foreign countries. The history is recounted in In re Factor VIII or IX Concentrate Blood Prods. Liab. Litig., 408 F.Supp.2d 569, 57043 (N.D.Ill.2006) (ruling on United Kingdom forum non conveniens motion).

All of the complaints in the current MDL are substantially similar. They allege that the defendants negligently, allowed their factor concentrates to be contaminated by HIV and hepatitis C from infected blood donors, causing those viruses to be transmitted to the plaintiffs when they infused the concentrates. The alleged negligence consisted of using plasma from high-risk blood donors, such as homosexual men and intravenous drug users; and then failing to take available precautions, such as heat treatment, to kill any dangerous viruses during the manufacturing process. The second claim, added by these "second generation" cases, is that the defendants, after learning that their untreated concentrates could transmit the viral infections, fraudulently "dumped" untreated concentrate on foreign markets while at the same time withdrawing the untreated product from the United States market. The defendants deny all of these claims.

Almost all of the straight negligence claims brought by United States plaintiffs were settled over ten years ago, but the more recent cases brought by the foreign residents are pending before, this court on defense motions to dismiss for forum non conveniens. We have dismissed the claims brought by the residents of the United Kingdom on that basis, and that decision was affirmed. In re Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d 951 (7th Cir.2007).

The issue presently before this court is whether to dismiss for forum non conveniens the cases brought by residents of Argentina who claim to have become infected by using one or more of the defendants' concentrates in Argentina. Defendants assert that Argentina is a more convenient forum for the litigation of those claims.

The United Kingdom claims were referred to as the Gullone case because that was' the name of the first-named plaintiff in the low-numbered case with United Kingdom plaintiffs. For convenience, we will refer to the Argentine claims as the Abad case, since that is the name of the first-named plaintiff in the low-numbered Argentine case.

A total of 880 Argentine plaintiffs have filed suit. Their claims are set forth in a number of separate complaints, each joining multiple plaintiffs. Most of the Argentine plaintiffs (855 of the 880) filed suit in Florida state court, and the defendants removed the cases to the United States District`Court for the Southern District of Florida on the basis of diversity jurisdiction. Of the Florida plaintiffs, 600 allege that they were infected in Argentina. Another 17 plaintiffs infected in Argentina are included in complaints transferred here from the Northern District of California, and 2 more are plaintiffs in suits filed in this district (which we are treating as part of the MDL), making a total of 619 plaintiffs the defendants are moving to dismiss.

The Law of Forum Non Conveniens

The steps involved in a forum non conveniens analysis are well-settled. The first step is a two-part inquiry as to whether the proposed alternative forum — here, Argentina — is available and adequate for the litigation of plaintiffs' claims. Kamel v. Hill-Rom Co., 108 F.3d 799, 802-03 (7th Cir.1997) ("An alternative forum is available if all parties are amenable to process and are within the forum's jurisdiction. An alternative forum is adequate when the parties will not be deprived of all remedies or treated unfairly."). If the alternative forum is both available and adequate, "the district court must then balance the private and public interest factors that emerge in a given case." Id. (citations omitted).

Availability and Adequacy

Both questions are in dispute. Defendants stipulate that if we grant their motion they will subject themselves to the process of the Argentine courts so as to be within the jurisdiction of, those courts. Therefore, they say, the Argentine forum is "available." Plaintiffs respond that the Argentine courts cannot assert jurisdiction in these cases because the plaintiffs have elected to sue in the United States, and, moreover, no act or event that could establish jurisdiction occurred in Argentina.

The parties' arguments are based upon their differing interpretations of what they agree is the governing provision of the Argentinian Code of Civil and Commercial Procedure. It reads in relevant part, in defendants' translation from Spanish, as follows:

Except for cases of express or implied expansion of jurisdiction, where applicable, and notwithstanding any special rules contained in this Code and other laws, ... (4) In personal actions based on intentional or unintentional torts, the competent court shall be the court sitting where the event took place or the place of residence of defendant, at the election of the plaintiff.

(Decl. of Professor Atilio Anibal Alterini, Ex. F to Defs.' Mem. in Supp. of Mot. to Dismiss, at 4.) The plaintiffs' translation of the provision is somewhat different. Instead of "where the event took place or the place of residence of defendant," their translation, provided by their expert, Dr. Edgardo Rotman, is "place of the act or where the defendant is domiciled." (Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss at 4.) The difference between "residence" and "domiciled" is not important, but the difference between "event" and "act" is thought by plaintiffs to be critical to their position that jurisdiction can lie only where the defendants acted, meaning where the defendants manufactured the injurious concentrates. That was in the United States, not Argentina. The defendants, on the other hand, believe that "event" is the proper translation of the Code provision and that "event" is a word that applies to the plaintiffs' becoming infected, which occurred in Argentina.

The Spanish word used in the Code provision is "hecho," which defendants' expert Alterini translates as "event." (Alterini Dep. at 74.) Plaintiffs' expert Dr. Rotman says that "hecho" is a word "which has many meanings," but "[i]n the context of the present case the correct meaning is `act' or`action'." (Aff. of Edgardo Rotman, Ex. C to Pls.' Mem. in Opp'n, at 7 ¶ 14).

We will now discuss the parties' experts and the reasons they give for their opinions on the issues of availability and adequacy.

The Defendants' Experts

Atilio Anibal Alterini

Dr. Atilio Anibal Alterini,¹ presently the Dean of the Law School of the University of Buenos Aires, has served as a judge and practicing lawyer in Argentina' for many years. The list of his teaching positions, judicial service and legal publications takes up most' of the first three pages of his declaration. (Alterini Decl. at 1-3.) His law practice has included representation of both plaintiffs and defendants in products liability cases in Argentina. Referring, to the Code provision in question, he states: "In my opinion, the`place where then event took place' is where the infection occurred because before that there was no damage, and I assume that the infection occurred in Argentina." (Id. at 4.)

When the plaintiffs took Dr. Alterini's deposition, he explained again that this "is a case involving damage sustained by the victims. And this damage is caused when the infection takes place." The risk of infection is introduced at the, time and place of. manufacture, "[b]ut that has nothing to do with liability. There is no liability without damage." (Alterini Dep. at 86.) The plaintiff does not have a right to bring the lawsuit until after he suffers the damage. (Id. at 94.) As far as a claim regarding impending or threatened damage, "[t]here is no such thing." (Id. at 95.)

Alberto Jesus Bueres

The defendants' other expert witness is Dr. Alberto Jesus Bueres. He is head of the chair of Civil Law at the Law School of the University of Buenos Aires. He has also practiced law and served as a judge in Argentina for a number of years. A list of his academic; and professional credentials, publications and awards runs for more than five pages (Decl. of Alberto Jesus Bueres, Ex. G to Defs.' Mem. in Supp. of Mot. to Dismiss, at 1-6) and is impressive² In his declaration, Dr. Bueres states that in the event of a forum non conveniens dismissal in the United States, the "Argentine court, is obliged to take jurisdiction as, Precisely, it is in Argentina that the victim suffered the injury. The place where the damage occurred is the place where the plaintiff became infected with HIV and/or hepatitis C." (Id. at 7 ¶ 2.) Thus, Dr. Bueres, like Dr. Alterini, opines that jurisdiction exists at the place where the injury occurred and that an FNC dismissal in the United States would not bar a refiling in Argentina. In his deposition taken by the plaintiffs, he stated that he had no doubt that the "harmful event" took place in Argentina because it was the place where the infection occurred. He "absolutely disagree[s]" with plaintiffs' experts' opinion that the place of the event would be the place where the products were manufactured. "When the products were manufactured, there was no...