Picketts v. International Playtex, Inc.

• Citation: 576 A.2d 518,215 Conn. 490
• Decision Date: 26 June 1990
• Docket Number: No. 13839,13839
• Court: Supreme Court of Connecticut
• Parties: Randy PICKETTS, Executor (ESTATE OF Linda Ann PICKETTS), et al. v. INTERNATIONAL PLAYTEX, INC., et al.

Page 518

576 A.2d 518

215 Conn. 490

Randy PICKETTS, Executor (ESTATE OF Linda Ann PICKETTS), et al. v. INTERNATIONAL PLAYTEX, INC., et al.

No. 13839.

Supreme Court of Connecticut.

Argued April 3, 1990.

Decided June 26, 1990.

Michael P. Koskoff, with whom was Rosalind J. Koskoff, for appellants (plaintiffs).

Stephen D. Chakwin, Jr., with whom were J. Paul Johnson, Sharon A. Fitzgerald and, on the brief, W. Patrick Ryan, Holly K. Dustin and William H. Robinson, for appellees (defendants).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

PETERS, Chief Justice.

The sole issue in this appeal is whether the trial court abused its discretion in granting a motion to dismiss on the ground of forum non conveniens. On March 12, 1985, Linda Ann Picketts, a thirty-three year old mother of two children, died in British Columbia, Canada of toxic shock syndrome ¹ allegedly caused by a defectively designed "super absorbent" Playtex tampon. The plaintiffs, Randy Picketts, individually and in his capacities as both the executor of his wife's estate and as the next friend of the decedent's minor children, Leanne and Dean Picketts, all Canadian citizens, subsequently brought an action in Connecticut based on strict liability, negligence and breach of implied warranties against three Playtex companies. The defendants are International Playtex, Inc., a now liquidated Delaware corporation that had its principal place of business in Stamford, Connecticut, Playtex Family Products Corporation, a Delaware corporation with its principal place of business in Stamford Connecticut, that had assumed the tampon portion of International Playtex, Inc., upon its liquidation, ² and Playtex, Ltd., a Canadian corporation with its principal place of business in Malton, Ontario, Canada that had been a wholly owned subsidiary of International Playtex, Inc., and is presently a wholly owned subsidiary of Playtex Family Products Corporation. The defendants moved to dismiss the complaint on the ground that, despite their corporate presence in this state, which conferred territorial jurisdiction over them here, Connecticut was not a proper forum for the action. The trial court, after a hearing, overruled the plaintiffs' objections and granted the motion to dismiss the action in its entirety. We transferred to this court, pursuant to Practice Book § 4023, the plaintiffs' appeal from the forum non conveniens dismissal and now reverse the judgment of the trial court.

The relevant facts may be derived from the plaintiffs' complaint, the limited discovery conducted subsequent to the motion to dismiss and the affidavits and medical reports filed by the parties to support their evidentiary contentions. The decedent, just prior to her death, had purchased and used Playtex super absorbent tampons in British Columbia, Canada. After experiencing symptoms of persistent vomiting and diarrhea that had progressively worsened over the course of a few days, the decedent was taken by ambulance to Penticton Regional Hospital, in British Columbia. During the trip, she stopped breathing and lost her pulse, at which time the ambulance attendants immediately began cardiopulmonary resuscitation. Upon her arrival at the hospital, emergency room personnel vigorously continued resuscitation efforts until the decedent was pronounced dead approximately two hours later.

Although one of the decedent's attending physicians theorized in the patient progress notes that "the most likely explanation for the patient's death [was] asphyxiation, secondary to aspiration of vomitus" that may have been preceded by "[c]ardiac arrhythmia secondary to hyperkalemia," ³ the autopsy revealed findings consistent with previously reported cases of toxic shock syndrome. ⁴ On the basis of these autopsy results, the coroner concluded in his judgment of inquiry into the death of Linda Ann Picketts that she had died as a result of toxic shock syndrome. The coroner further indicated that "[t]he source of the fatal infection [was] thought to be the tampon" removed from her body at the autopsy.

Playtex, Ltd., manufactured the super absorbent tampon implicated in the decedent's death at its facilities in Arnprior, Ontario, and coordinated that tampon's national distribution in Canada from its marketing headquarters in Malton, Ontario. In Canada, such marketing and distribution fall within the regulatory authority of the Health Protection Branch of the Department of National Health and Welfare, the Canadian analogue to the United States Food and Drug Administration. Significantly, however, the product specifications for the tampons manufactured and distributed in Canada by Playtex, Ltd., originated in the research and development department of International Playtex, Inc., in Paramus, New Jersey. Moreover, the product information disseminated by International Playtex, Inc. included the preparation of consumer warnings and instructions. ⁵ Although Playtex, Ltd., had modified the tampon design slightly to adapt to Canadian marketing and production needs, it had undertaken such modification only subsequent to direct approval from International Playtex, Inc., Accordingly, International Playtex, Inc., and its successor, Playtex Family Products Corporation, established the standards for both the Canadian and American versions of the Playtex super absorbent tampon.

Despite the different sources of the raw materials used in the Canadian and American versions, and the utilization of discrete machinery to conform to varying specifications as to size and weight, the super absorbent tampons manufactured and marketed by Playtex, Ltd., in Canada were essentially similar to those manufactured by International Playtex, Inc., for United States distribution. ⁶ The design specifications of the tampon used by the decedent, like its American counterpart, included polyacrylate, a highly absorbent fiber that may have served as the breeding ground for the lethal bacteria that had allegedly developed in the decedent into toxic shock syndrome. In March 1985, Playtex, Ltd., at the direction of International Playtex, Inc., removed polyacrylate from the fiber composition of its super absorbent tampons. Approximately two weeks after the death of the decedent, Playtex, Ltd., also implemented the product exchange program mandated by the March 29, 1985 decision of International Playtex, Inc., voluntarily to withdraw all Playtex tampons containing polyacrylate from the marketplace. ⁷

Although International Playtex, Inc., and its successor, Playtex Family Products Corporation, had chosen Stamford as the most convenient place from which to conduct their worldwide enterprises, the defendants nonetheless asserted that Connecticut was an inconvenient forum in which to defend this action brought by Canadian citizens alleging defective design of a product regulated by the Canadian government and manufactured and distributed by their wholly owned Canadian subsidiary, Playtex, Ltd. The defendants made a twofold argument in reliance on the objective of the doctrine of forum non conveniens that litigation of an action should go forward in the most convenient and logical place. They noted, first, that, since neither the decedent nor her family had even visited Connecticut, the mere presence of the Playtex corporate headquarters in Connecticut did not render this forum convenient. The defendants then asserted that, in light of their waiver of any jurisdictional claims that might otherwise be available to them in Canada, a trial located in British Columbia, Canada would furnish an appropriate alternative forum for the plaintiffs' cause of action.

In advancing these claims, the defendants acknowledged that the Canadian forum might be less favorable than a Connecticut forum for the plaintiffs' pursuit of their cause of action. The defendants urged the trial court, however, to concentrate its attention upon the "constellations of hardships" that would befall the defendants should they have to defend the action in Connecticut. In particular, the defendants highlighted the difficulties they would allegedly encounter in mounting an affirmative defense, given that all sources of proof with respect to the decedent's medical condition and care were beyond the compulsory process of a Connecticut court. ⁸

The trial court undertook to weigh the competing private and public interest factors in accordance with the methodology suggested by Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947), which this court recently characterized as a useful frame of reference for the law of Connecticut. Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989). The court first determined the availability of British Columbia as an alternate forum. In doing so, the trial court rejected the plaintiffs' contentions that the procedural limitations on discovery, the denial of a jury trial and the substantive limits on recovery in cases of this nature rendered British Columbia an inadequate alternative. Thereafter, the court undertook to balance the relevant private and public interest factors to select the more appropriate forum.

In balancing the private interest factors, the trial court determined that the location of documentary evidence and the accessibility, in either forum, of those witnesses associated with product development were in equipoise, ⁹ but that the defendants would be significantly disadvantaged with regard to the accessibility of testimony concerning the decedent's medical condition and care were the case to be tried in Connecticut. On this basis, the court found that exceptional circumstances warranted dismissal for forum non conveniens.

Although this determination concerning the balance of the private interest factors would alone have warranted granting the defendants' motion to dismiss, the trial court proceeded as well to consider the public interest...