Ledingham v. Parke-Davis Div. of Warner-Lambert Co.

• Decision Date: 20 February 1986
• Docket Number: No. 84 CV 2821.,84 CV 2821.
• Citation: 628 F. Supp. 1447
• Parties: Stephanie LEDINGHAM, as mother and natural guardian of Philip David Ledingham, an infant, Plaintiff, v. PARKE-DAVIS DIVISION OF WARNER-LAMBERT COMPANY, Parke, Davis & Company, Warner-Lambert Company, Defendants.
• Court: U.S. District Court — Eastern District of New York

628 F. Supp. 1447

Stephanie LEDINGHAM, as mother and natural guardian of Philip David Ledingham, an infant, Plaintiff, v. PARKE-DAVIS DIVISION OF WARNER-LAMBERT COMPANY, Parke, Davis & Company, Warner-Lambert Company, Defendants.

No. 84 CV 2821.

United States District Court, E.D. New York.

February 20, 1986.

Julien & Schlesinger, P.C., New York City (Alfred S. Julian, Edward J. Sanocki, Jr., William D. Fireman, of counsel), for plaintiff.

Heidell, Pittoni & Moran, P.C., New York City (Walter R. Marklein, of counsel), for defendants.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

The infant plaintiff is alleged to have suffered serious birth defects as the result of his mother's ingestion of the drug DILANTIN during pregnancy. Defendants move to dismiss this diversity action on the ground of forum non conveniens. For the reasons stated below, the motion is granted.¹

Facts

Plaintiff's mother, Stephanie Ledingham, is a citizen and resident of Canada. She alleges that she ingested the drug DILANTIN during and prior to her pregnancy in 1969-1970. Her son, Philip David, was born with serious birth defects, including a cleft palate, an inner-ear malformity, and a congenital heart defect.

In a complaint sounding in negligence, breach of warranty and strict liability, plaintiff seeks both compensatory and punitive damages.

Defendant Warner-Lambert Company ("Warner-Lambert") is a Delaware corporation with its principal place of business in New Jersey. Defendant Parke, Davis & Company ("Parke, Davis"), a wholly-owned subsidiary of Warner-Lambert, is a Michigan corporation with its principal place of business in New Jersey. Defendant Parke-Davis Division of Warner-Lambert Company is an operating division of Warner-Lambert having no separate and distinct corporate identity.

DILANTIN is an anti-convulsant drug, first marketed, sold and distributed in the United States by Parke, Davis in 1938. Defendants claim, however, that the DILANTIN ingested by Mrs. Ledingham was manufactured, packaged, advertised, promoted and marketed by Parke Davis Canada, Inc., a separate and independent corporation organized under the laws of Canada. Moreover, the drug was prescribed to plaintiff by Canadian physicians, dispensed at Canadian pharmacies and ingested in Canada. Finally, the manifestation and treatment of the infant's injuries occurred there. Defendants argue, accordingly, that this Court should dismiss the complaint since Canada provides a more convenient forum for the litigation.

Plaintiff argues, however, that the allegedly tortious conduct complained of arises neither from the manufacture nor the administration of the drug, but from defendants' decision to place the drug in the stream of commerce with knowledge that the accompanying warnings were inadequate. Thus, since the original development and testing of the drugs and, perhaps, the alleged withholding of adequate warnings, occurred in this country, plaintiff argues that defendants' forum non conveniens motion should be denied.

Discussion

The doctrine of forum non conveniens allows a court, in its discretion, to "resist imposition upon its jurisdiction" even though jurisdiction and venue are technically proper, if it appears that the convenience of the parties and the ends of justice warrant dismissal. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). The Supreme Court has described the appropriate inquiry.

Initially, the Court must determine whether there is, in fact, an alternative forum. Piper Aircraft v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 265 n. 22, 70 L.Ed.2d 419 (1981). Once the existence of an alternative forum is established, the court must balance the public and private interests at stake in assessing the relative convenience of the forum chosen by plaintiff as compared to the available alternative forum. Gulf Oil v. Gilbert, supra, 330 U.S. at 507-08, 67 S.Ct. at 842-43. Although traditionally there is a presumption in favor of the plaintiff's choice of forum, defendants' burden of showing inconvenience to rebut the presumption is less stringent where, as here, the plaintiff is a foreign citizen. See Piper Aircraft v. Reyno, supra, 454 U.S. at 255-56, 102 S.Ct. at 265-66.

A. Availability of an Alternative Forum

Defendants maintain that the courts of Ontario, Canada provide a suitable alternative forum for this case. Indeed, defendants have offered to consent to suit by plaintiff in the courts of Canada as a condition for dismissal.

Defendants, moreover, have provided the Court with an affidavit from Alan J. Lenczner, a barrister in Ontario, who opines that plaintiff could bring her claim in a Canadian court on theories of (a) negligence, (b) failure to warn of an inherent danger in the use of a product, and (c) breach of an implied warranty of merchantability. See Lenczner Affidavit at ¶ 15. Barrister Lenczner informs the Court, however, that the Canadian courts (a) do not recognize a claim of strict products liability, (b) do not permit the representation of clients on a contingency fee basis, and (c) impose a $180,000 upper limit on the recovery of non-pecuniary general damages. Id. at ¶ 16—¶ 20.

Faced with similar considerations, the Supreme Court held that the possibility that the law of the alternative forum will be less favorable to the plaintiff, while a factor, is not sufficient, alone, to bar dismissal on the ground of forum non conveniens. See Piper Aircraft v. Reyno, supra, 454 U.S. at 247, 102 S.Ct. at 261. The Court went on to state that:

If the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.

Id. at 254, 102 S.Ct. at 265. See Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 613 (6th Cir.1984).

Thus, although plaintiff's potential damage award may be smaller in Canada, and although litigation there might be more expensive and more difficult, the Court finds that there is no danger that plaintiff will be deprived of a remedy or treated unfairly there. See Dowling v. Richardson-Merrell, Inc., supra, 727 F.2d at 615. Having concluded that the courts of Canada provide an adequate alternative forum for this litigation, I turn to the Gulf Oil v. Gilbert balancing test.

B. The Balancing of the Public and Private Interests at Stake

The Supreme Court in Gulf Oil v. Gilbert laid out the factors that a court must consider in balancing the public and private interests at stake in a forum non conveniens determination. That test was summarized as follows in Piper Aircraft v. Reyno:

The factors pertaining to the private interests of the litigants included 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." The public factors bearing on the question included the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.

454 U.S. at 241 n. 6, 102 S.Ct. at 258 n. 6 (citations omitted).

1. The Private Interests

Defendants contend that the bulk of the evidence relevant to this case is located in Canada since that is where the drug was manufactured, marketed, prescribed, and ingested, and since that is where the mother and her son reside. Plaintiff responds, on the other hand, that the records and witnesses pertaining to the testing and development of the drug and the defendants' failure to warn of its hazardous side effects are located in the United States.

Although, admittedly, the proof with respect to the issue of liability may be located in both countries, I conclude that access to evidence will be facilitated, and the convenience of witnesses and parties furthered, if this case is tried in Canada.

Significantly, those records and witnesses located in the United States are, for the most part, within defendants' exclusive control, and thus, can be inexpensively and easily produced. Indeed, this Court will condition the dismissal upon the defendants' agreement to provide the records relevant to plaintiff's claims. See Piper Aircraft v. Reyno, supra, 454 U.S. at 257-58 n. 25, 102 S.Ct. at 266-67 n. 25.

Clearly, however, the vast majority of evidence relating to the causation and damages elements of plaintiff's claims is located in Canada. Cf. Harrison v. Wyeth Laboratories, 510 F.Supp. 1, 8 (E.D.Pa.1980), aff'd, 676 F.2d 685 (3d Cir.1982); Jones v. Searle Laboratories, 93 Ill.2d 366, 67 Ill. Dec. 118, 121-22, 444 N.E.2d 157, 160-61 (1983). Indeed, defendants have identified numerous physicians, pharmacists, hospitals, and therapists involved in either the prescription or administration of the drug or the treatment of the child's condition.² If these witnesses are unwilling to testify before this Court, there is no compulsory process that can issue from this Court to secure their attendance. Jones v. Searle Laboratories, supra, 67 Ill.Dec. at 122, 444 N.E.2d at 161. Although defendants could depose the witnesses in Canada, depositions are an inadequate substitute for live testimony. Gulf Oil v. Gilbert, supra, 330 U.S. at 511, 67 S.Ct. at 844.

Moreover, even assuming that the medical witnesses are willing to testify, the...