Johnson v. G.D. Searle & Co.

• Decision Date: 01 September 1988
• Docket Number: No. 19,19
• Citation: 314 Md. 521,552 A.2d 29
• Parties: Cheryl JOHNSON v. G.D. SEARLE & COMPANY et al. Eileen M. FERCH v. G.D. SEARLE & COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 521

314 Md. 521

552 A.2d 29

Cheryl JOHNSON v. G.D. SEARLE & COMPANY et al.

Eileen M. FERCH v. G.D. SEARLE & COMPANY et al.

No. 19, Sept. Term, 1988.

Court of Appeals of Maryland.

Jan. 18, 1989.

H. Robert Erwin, Jr. (Pretl & Erwin, P.A., both on brief), Baltimore, for appellants.

James L. Shea (Jill E. Rappaport, Terri L. Turner, Venable, Baetjer & Howard, all on brief), Baltimore, for appellees.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

RODOWSKY, Judge.

These appeals involve Md.Code (1974, 1984 Repl.Vol.), § 6-104(a) of the Courts and Judicial Proceedings Article (CJ) which provides:

"If a court finds that in the interest of substantial justice an action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions it considers just."

We shall hold that a circuit court abuses its discretion by unconditionally dismissing actions on the ground of forum non conveniens when the statute of limitations has likely run in the alternative forum.

Presented are two appeals which have been consolidated for briefing and argument. Both cases are product liability, personal injury actions involving an intrauterine contraceptive, the Copper-7 (Cu-7), manufactured and distributed by the appellees, G.D. Searle & Company and Searle Pharmaceuticals, Inc. (collectively, Searle). In each case the plaintiff alleges that her use of the Cu-7 caused pelvic inflammatory disease which eventually required a complete abdominal hysterectomy and bilateral salpingo-oophorectomy. Since March 1971 the United States Food and Drug Administration has classified copper-bearing IUDs, such as the Cu-7, as prescription drugs. The FDA approved the Cu-7 in February 1974 following fourteen months of study.

Appellant, Cheryl Johnson, is a resident of Chicago, Illinois. In 1975 she had acquired her first Cu-7 in Detroit, Michigan. It was removed by her physician in August 1978, and in September 1978 a second Cu-7 was prescribed and inserted. Her physician removed this second Cu-7 in January 1980 after Ms. Johnson had developed symptoms. She was treated from time to time at the University of Illinois Hospital where, on October 28, 1980, she underwent the hysterectomy. Ms. Johnson's suit against Searle was filed in the Circuit Court for Baltimore City on July 31, 1987.

Appellant, Eileen Ferch, is also a resident of Illinois. Her physician prescribed and inserted a Cu-7 in 1976. Ms. Ferch's symptoms developed in 1978. She was treated at times in 1979 at hospitals in Illinois. She underwent her hysterectomy in October 1979 at a hospital in Parkridge, Illinois. Her action against Searle was filed in the Circuit Court for Baltimore City on August 4, 1987.

The appellee corporations are not incorporated under the laws of Maryland and Searle's principal office is in Skokie, Illinois. Searle maintains no office in Maryland but sells its products in this State through sales representatives. Searle has not questioned Maryland's exercise of in personam jurisdiction over it. ¹ On the same day that Searle answered the complaints, however, it moved that each be dismissed under CJ § 6-104(a) because each action should be heard in an Illinois forum.

In each case the circuit court entered the following judgment:

"Upon consideration of the Motion to Dismiss on the Basis of Forum Non Conveniens and the memoranda and arguments by the parties, it is ... ORDERED that this action is dismissed, with plaintiff to pay costs."

Each plaintiff appealed to the Court of Special Appeals. We issued the writ of certiorari on our own motion prior to consideration of the appeals by the intermediate appellate court.

Restatement (Second) of Conflict of Laws § 84 (1971) describes forum non conveniens as the principle whereby "[a] state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action[,] provided that a more appropriate forum is available to the plaintiff." At the time of the American Revolution the common law of England solved the question of the appropriate place for trial of an action by deciding whether it was local or transitory. Local actions are those based on facts which could have happened only in one place whereas actions based on facts which might have happened anywhere are transitory. "Local actions can be tried only where they arise; transitory actions, in whatever court has jurisdiction over the defendant or his property." Foster, Place of Trial in Civil Actions, 43 Harv.L.Rev. 1217, 1217 (1930). Professor, and later Judge, Robert Braucher has traced the origins of forum non conveniens to Nineteenth-Century Scotland. Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909 (1947). Paxton Blair, a Wall Street lawyer, ² presented the thesis that the doctrine was part of the common law inherent power of American courts which had been applying the principle without using its Latin label. Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1, 2 (1929).

The United States Supreme Court held that United States District Courts had inherent power to dismiss pursuant to the doctrine in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and its companion case, Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Whether a federal court should "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute," Gulf Oil, 330 U.S. at 507, 67 S.Ct. at 842, was to be determined by weighing public and private interest factors. "Wisely," courts have not attempted "to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts[.]" Id. at 508, 67 S.Ct. at 843. Private interest factors mentioned by the Court included "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[.]" Id. Describing public interest factors the Court said:

"Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself."

Id. at 508-09, 67 S.Ct. at 843. On appellate review of the dismissal of a complaint on forum non conveniens grounds the test is whether the trial court "exceed[ed] its powers or the bounds of its discretion[.]" Id. at 512, 67 S.Ct. at 844.

The importance of common law forum non conveniens in the federal courts was somewhat diminished in the year following Gulf Oil by the enactment of present Title 28 U.S.C. § 1404(a) (1982) by Pub.L. No. 80-773, § 1404(a), 62 Stat. 869, 937 (1948). That statute provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

Although the doctrine of forum non conveniens and § 1404(a) have similar conceptual roots, they are not identical.

"The transfer under sec. 1404(a) is not a transfer or a surrender of a case to another judicial system. It is but a change of venue to another courtroom of the same judicial system. Under a sec. 1404(a) transfer, the transferee court is obliged to follow the law of the state that would have been applied if there had been no change of venue. Ehrenzweig and Louisell, [Jurisdiction in a Nutshell ], p. 17 [ (2d ed. 1968) ], and Van Dusen v. Barrack (1964), 376 U.S. 612, 639, 84 S.Ct. 805 , 11 L.Ed.2d 945. Although sec. 1404(a) partakes of some of the elements of forum non conveniens, it is a statutory device distinct from that doctrine. Forum non conveniens can be applied by federal courts independently of any statutory authorization."

Littmann v. Littmann, 57 Wis.2d 238, 249, 203 N.W.2d 901, 907 (1973). The common law doctrine, however, retains vitality in the federal courts "primarily when the 'more convenient forum' is [that of] a foreign country, rather than another federal district." Grodinsky v. Fairchild Indus., 507 F.Supp. 1245, 1248 (D.Md.1981). The doctrine is also applicable to federal courts where the only alternative forum is a state court. See Poe v. Marquette Cement Mfg. Co., 376 F.Supp. 1054, 1060 (D.Md.1974).

Inasmuch as the courts of limited jurisdiction of the federal sovereign have inherent power to dismiss by applying common law forum non conveniens, that power necessarily also lies with the Maryland trial courts of general jurisdiction, the circuit courts. Thus, CJ § 6-104(a) confirms the existence of an inherent power and makes clear that it may be applied in relation to the broad standard of "the interest of substantial justice."

Section 6-104(a) was originally enacted as part of the "Long Arm" statute. See Acts of 1964, Ch. 95, enacting former Art. 75, § 98; Auerbach, The "Long Arm" Comes to Maryland, 26 Md.L.Rev. 13 (1966). The text of CJ § 6-104(a) is in substance, and is nearly verbatim, § 1.05 of the Uniform Interstate and International Procedure Act, 13 U.L.A. 355, 377 (1986) (the Model Act) which was approved by the National Conference of Commissioners on Uniform State Laws, and by the American...