Scott v. Ethicon, Inc. (In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig.)
| Decision Date | 14 February 2014 |
| Docket Number | MDL NO. 2327,CIVIL ACTION NO. 2:13-cv-19820 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | IN RE: ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO THE FOLLOWING CASE: JACQUELINE SCOTT, Plaintiff, v. ETHICON, INC., et al. Defendants. |
(Motion to Dismiss Claims Brought by New Zealand Plaintiffs)
Pending before the court is defendants Ethicon, Inc. and Johnson & Johnson, Inc.'s (collectively "Ethicon") motion to dismiss1 New Zealand plaintiffs on forum non conveniens grounds. For the reasons stated below, Ethicon's motion to dismiss is GRANTED subject to the conditions set forth in this opinion.
These cases are several of over 40,000 assigned to me by the Judicial Panel on Multidistrict Litigation. The cases involve the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. Out of these 40,000 cases, at least twenty werefiled by New Zealanders. According to their short form complaints, the plaintiffs were implanted with an Ethicon product in New Zealand. The plaintiffs appear to concede that they also received follow-up care in New Zealand. (See Pls.' Opp'n to Defs.' Mot. to Dismiss on Grounds of Forum Non Conveniens, at 11-13). On October 2, 2013, Ethicon moved to dismiss the New Zealand actions based on the forum non conveniens doctrine.
Forum non conveniens is a discretionary doctrine that permits a district court to dismiss or transfer a case if the current forum is inconvenient. See Nowsco Well Serv., Ltd. v. Home Ins. Co., 799 F. Supp. 602, 612-13 (S.D. W. Va. 1991) (Copenhaver, J.), aff'd, 974 F.2d 1331 (4th Cir. 1992). Forum non conveniens is a flexible inquiry. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). The United States Supreme Court has refused to lay down rigid rules in this area. "Each case turns on its facts." Id. at 249. Absent a "clear abuse of discretion," a court's reasonable conclusions deserve "substantial deference." See id. at 257. The party seeking to dismiss based on forum non conveniens has "the burden of showing that an adequate alternative forum exists." Jiali Tang v. Synutra Int'l, Inc., 656 F.3d 242, 248 (4th Cir. 2011) . An alternative forum exists if it is "1) available; 2) adequate; and 3) more convenient in light of the public and private interests involved." Id.
To meet the availability requirement, the defendant must show that it is amenable to process in the foreign jurisdiction. See Piper Aircraft, 454 U.S. at 254 n.22 (). "A foreign forum is adequate when (1) all parties can come within thatforum's jurisdiction, and (2) the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court." Tang, 656 F.3d at 249 (internal quotation marks omitted). Generally, a change in the law that is unfavorable to the plaintiff is not dispositive. Piper Aircraft, 454 U.S. at 247. However, an unfavorable change in law is relevant "if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all . . . ." Id. at 254. In other words, "[i]n rare circumstances[,] . . . where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied." Id. at 255 n.22.
If an alternative forum exists, a district court may proceed to the next step—weighing the public and private interests in the case. A district court must weigh these factors in light of the appropriate deference due to the plaintiff's forum choice. See id. at 255. Usually, when a domestic plaintiff selects the United States as her forum, a court gives substantial deference to that choice. Id. It is assumed that a plaintiff's home forum is convenient to the plaintiff. Id. at 255-56. "When the plaintiff is foreign, however, this assumption is much less reasonable." Id. at 256. Therefore, when a foreign plaintiff selects a United States court as her forum, this presumption applies "with less force." Id. at 255.
A foreign forum is available if the defendant is amenable to process in that forum. See id. at 254 n.22. In its briefing, Ethicon asserts that it is "established and regulated under the laws of New Zealand [and] can be served with New Zealand process." (Br. in Supp. of Defs.' Mot. to Dismiss Claims Brought by New Zealand Pls., at 3). Moreover, Ethicon states that it will notdispute that it is subject to New Zealand's jurisdiction. (See id. at 4). The plaintiffs do not address whether New Zealand is an available forum.
The availability requirement is usually satisfied if the defendant stipulates that it is amenable to service of process in the foreign jurisdiction. See Tang, 656 F.3d at 249. Here, Ethicon has conceded in its briefing that it would not dispute the jurisdiction of New Zealand courts. While Ethicon has not provided a written stipulation or affidavit on this issue, other courts have found that on-record concessions are sufficient to satisfy this requirement. See, e.g., Miller v. Boston Scientific Corp., 380 F. Supp. 2d 443, 448-50 (D.N.J. 2005) (). To provide further assurance that Ethicon is amenable to process, I will condition dismissal upon its agreement to submit to process in New Zealand. Accordingly, I FIND that New Zealand is an available alternative forum, provided Ethicon submits to process in New Zealand.
An alternative forum is adequate if "1) all parties can come within that forum's jurisdiction, and (2) the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court." Tang, 656 F.3d at 249 (internal quotation marks omitted). As previously noted, Ethicon has stated that it will submit to the jurisdiction of New Zealand courts. However, the parties disagree whether New Zealand's Accident Compensation Act, a no fault-based compensation scheme, is an adequate remedy.
In 1972, the New Zealand legislature passed the Accident Compensation Act. See Rosemary Tobin & Elsabe Shoeman, The New Zealand Accident Compensation Scheme: The Statutory Bar and the Conflict of Laws, 59 Am. J. Comp. L. 493, 494 (2005). Under the Act, an individual can obtain damages for covered injuries. Id. at 497-98. The covered injuries fall into several categories, such as treatment injury, gradual processes, disease or infection, and, under limited circumstances, mental injury. ). The term "treatment" includes "the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis . . . ." Accident Compensation Act 2001, cl 33(1)(6) (N.Z.).
To obtain coverage for treatment injury, an individual must prove "a causal link between the injury and the treatment on the balance of the probabilities." (Tobin Decl., ¶ 32). Thus, a plaintiff can obtain damages without having to prove the liability of the person who injured them. See id. In exchange for these benefits, New Zealanders entered a "social contract" and relinquished their right to sue for compensatory damages in New Zealand courts. Ian B. Campbell, Compensation for Personal Injury in New Zealand 74 (1967). However, under the Act, an individual can still sue for exemplary damages. Accident Compensation Act 2001 cl 319 (N.Z.).
The plaintiffs argue the Act does not provide an adequate remedy because it does not allow them to litigate their claims in court. Put differently, plaintiffs contend that a remedy isadequate only if it is a judicial remedy, rather an administrative one.2 Ethicon argues that Piper only requires the alternative forum to provide some remedy. The origin of that remedy, Ethicon contends, is irrelevant to the forum non conveniens analysis. In support, Ethicon cites Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2000). In Lueck, New Zealand citizens were injured in an airplane crash in New Zealand. Id. at 1141. The plaintiffs brought suit against the Canadian manufacturer of the plane and the American manufacturer of the plane's Ground Proximity Warning System in a United States court. Id. In affirming the district court's dismissal of the action on forum non conveniens grounds, the Ninth Circuit Court of Appeals stated that:
The district court was not required to ask whether plaintiffs could bring this lawsuit in New Zealand, but rather, whether New Zealand offers a remedy for their losses. . . . The effect of Piper Aircraft is that a foreign forum will be deemed adequate unless it offers no practical remedy for the plaintiff's complained of wrong. A New Zealand remedy is unquestionably available here. According to the complaint, the losses for which Plaintiffs seek compensation are their physical injuries sustained in the accident and the resulting loss of earnings. Plaintiffs do not dispute that they can file and have filed claims...
To continue reading
Request your trial