Stangvik v. Shiley Inc.

• Decision Date: 13 September 1990
• Docket Number: No. G008426,G008426
• Citation: 230 Cal.App.3d 1688,273 Cal.Rptr. 179
• Court: California Court of Appeals
• Parties: Previously published at 230 Cal.App.3d 1688 230 Cal.App.3d 1688 Mellet STANGVIK, et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED, et al., Defendants and Respondents. Jenny Mikaela Marie Therese Birgitta KARLSSON, et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED, et al., Defendants and Respondents.

Page 179

273 Cal.Rptr. 179

Previously published at 230 Cal.App.3d 1688

230 Cal.App.3d 1688

Mellet STANGVIK, et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED, et al., Defendants and Respondents.

Jenny Mikaela Marie Therese Birgitta KARLSSON, et al., Plaintiffs and Appellants, v. SHILEY INCORPORATED, et al., Defendants and Respondents.

No. G008426.

Court of Appeal, Fourth District, Division 3, California.

Sept. 13, 1990.

Review Granted Nov. 28, 1990.

[230 Cal.App.3d 1692] Robins, Kaplan, Miller & Ciresi, Bruce A. Finzen, Minneapolis, Minn., Joseph L. Dunn, Newport Beach, and Gary L. Wilson, Minneapolis, Minn., for plaintiffs and appellants.

Palmieri, Tyler, Wiener, Wilhelm & Waldron, Frank C. Rothrock, Gary C. Weisberg, Irvine, and Michele D. Murphy, Los Angeles, for defendants and respondents.

OPINION

MOORE, Acting Presiding Justice.

This is an appeal from a decision of the superior court granting the motions of defendants, Shiley Incorporated and Pfizer, Inc., to stay product liability/wrongful death actions under the doctrine of forum non conveniens. The actions below were brought by Swedish and Norwegian plaintiffs ("Appellants") who allege their decedents were killed as a result of the failure of artificial heart valves manufactured in California by Shiley and Pfizer.

In January 1988, the trial court initially denied the motions based on Corrigan v. Bjork Shiley Corp. (1986) 182 Cal.App.3d 166, 227 Cal.Rptr. 247. However, in the first appeal to this court, we disagreed with Corrigan and other appellate authority which followed a similar analysis, and directed the trial court to reconsider the motions to stay on appropriate terms and conditions. Thereafter, the court granted appellants' request to engage in discovery on inconvenient forum issues. Following discovery, and after extensive briefing and argument by counsel, the court issued a new order staying the actions subject to seven specified conditions.

Appellants contend the trial court erred by (1) holding that this court's prior opinion was the law of the case; (2) failing to follow this court's directive that it decide the motions pursuant to the approach adopted by the United States Supreme Court; and (3) abusing its discretion in finding California was an inconvenient forum.

I

Appellants are residents of Sweden and Norway who filed products liability/wrongful death actions against Shiley and Pfizer in the Orange County Superior Court. Shiley, a California corporation, and Pfizer, a Delaware corporation with its principal place of business in New York, manufacture heart valves for worldwide distribution. Two valves were sold in Scandinavia and implanted in two patients, one Swedish and the other Norwegian. After receiving treatment only in their home countries, the valves failed and both died in 1986. Appellants, the decedents' surviving heirs, retained California counsel, filed complaints alleging the valves were defective, and sought damages based on negligence, strict liability, breach of warranty, fraud, and loss of consortium. Karlsson's heirs also sought recovery based on negligent infliction of emotional distress.

Shiley and Pfizer moved to dismiss or stay the actions on the ground of forum non conveniens pursuant to Code of Civil Procedure section 410.30. ¹ They contended the matters should be pursued in Sweden and Norway, where appellants resided, the valves were marketed, decedents' medical care was provided, alleged fraudulent misrepresentations were made, and much pertinent evidence existed, including evidence of health care provision and the decedents' employment histories.

Shiley and Pfizer provided evidence from Scandinavian counsel concerning appellants' legal rights in their home countries. Appellants also retained Norwegian and Swedish attorneys, who submitted counter-declarations disputing the assertions of Shiley's and Pfizer's experts on the applicable law and available remedies.

The evidence indicated Norwegian and Swedish law would be applied in the respective forums, and that each forum might permit recovery under strict liability. The evidence conflicted as to whether recovery would be permitted on a fraud theory. Although punitive damages are not available in either jurisdiction, in Norway special damages are occasionally permitted upon proof of gross negligence or intent by the defendant. There was no indication plaintiffs' actions would be barred by any statute of limitations in either forum. Shiley and Pfizer offered to stipulate to submit to the jurisdiction of the appropriate forums, to comply with all discovery orders of the foreign court, to make up to ten employees designated by appellants available to testify at no cost to appellants, to exercise their best efforts to make key employees, whether past or present, reasonably available to testify in the foreign court, and to satisfy any judgments entered against them.

The motions were heard on January 8, 1988. The trial judge found the argument of Shiley and Pfizer persuasive, but said he was compelled to deny the motions under Corrigan v. Bjork Shiley Corp., supra, 182 Cal.App.3d 166, 227 Cal.Rptr. 247. Shiley and Pfizer petitioned this court for extraordinary relief, and we issued preemptory writs and directed the trial court to reconsider the motions in light of the opinion. As noted, prior to the rehearing the trial court permitted the parties to engage in additional discovery. That discovery confirmed that the most substantial evidence and important categories of witnesses were located in Scandinavia. For example, virtually all witnesses concerning the decedents' medical care and treatment, medical histories and loss of earnings, and witnesses to the familial impact of their deaths, are located in Scandinavia. Important documentary evidence concerning the decedents' medical histories and loss of earnings is also located there.

At the rehearing, appellants challenged the sufficiency of that evidence with newly-discovered facts: First, they claimed they had discovered there are over one million relevant documents and hundreds of important witnesses in California. Second, they asserted they had produced written commitments from each Scandinavian witness ensuring his or her availability to testify at a trial held in California. Third, they contended potential third-party liability of Scandinavians is no longer an issue in these cases.

Shiley and Pfizer produced the declarations of Swedish and Norwegian counsel indicating appellants can pursue the actions, without prolonged delay, in their home countries. This evidence contradicted testimony presented by appellants that Scandinavian tort law provides a less favorable forum and less appropriate remedies. Moreover, appellants challenged the sufficiency of their own legal system, noting the absence of contingent legal fees, the lack of original jurisdiction over other potential defendants and/or American component parts manufacturers, the need to translate documents into Swedish and Norwegian, and the alleged difficulty of enforcing a Scandinavian judgment in the United States. They contended litigating the cases in their own countries would present a financial hardship. However, Shiley and Pfizer produced evidence that Swedish and Norwegian courts routinely receive English-language documents into evidence without requiring translation. And, there was no credible evidence to support appellant's contention they would require the translation of more than one million documents to prove their cases.

After rehearing the motions, the court issued a statement of intended ruling ordering the actions stayed, subject to an "unconditional" agreement by Shiley and Pfizer to seven conditions: (1) Submission to jurisdiction in Sweden and Norway; (2) compliance with discovery orders of the Scandinavian court; (3) agreement to make past and present employees reasonably available to testify in Sweden and Norway at defendants' cost if so ordered within the discretion of the Scandinavian courts; (4) tolling of the statute of limitations during the pendency of the actions in California; (5) agreement to make documents in their possession in the United States available for inspection in Sweden and Norway, as required by Scandinavian law, at defendants' expense; (6) agreement that depositions in the United States might proceed under section 2029; and (7) agreement to pay any final judgments rendered in the Scandinavian actions. The court also retained jurisdiction to make such further orders as might become appropriate.

The court noted it reached its own conclusion as to the applicable facts, and did not interpret any part of this court's prior opinion to constitute findings of fact. In addition, the court indicated it weighed each of the factors presented by the evidence and argument, but that "[n]o factor has been given extraordinary significance over others...." The court found California was an inconvenient forum and that Sweden and Norway were adequate alternative forums for the resolution of the matters.

Shiley and Pfizer filed unconditional acceptances of the seven specified conditions. Appellants' request for a statement of decision was denied, and this appeal followed.

II

Initially, appellants contend the trial court erred in concluding this court's prior opinion constituted the law of the case. They argue the Supreme Court's depublication of our prior opinion rendered it "effectively vacated," because "[a] depublication order establishes that the Supreme Court found the opinion erroneous, or to contain misstatements of law or poor legal reasoning." The argument is contrary to the law.

California Rules of Court, rule 977(b)(1) provides that an unpublished opinion may be cited or relied upon "when the opinion is relevant under the doctrine[ ] of law of the case...." Thus, the fact that the Supreme Court depublished our prior opinion does not affect the status of the decision as the law of the...