As she famously clicked her ruby slippers together, Dorothy Gail proclaimed, “There’s no place like home.” Such was the conclusion of the United States District Court for the Southern District of Ohio in Hefferan v. Ethicon, 2015 WL 2169689 (S.D. Ohio May 8, 2015). Hefferan is a relatively rare example of complete dismissal of a case pursuant to the doctrine of forum non conveniens, a doctrine that has largely been supplanted by the transfer statute, 28 U.S.C. § 1404(a), in cases in which another United States court provides an appropriate forum. In Hefferan, voicing repeated disapproval of the Plaintiffs’ blatant forum shopping, the Court found that the courts of Germany, and not any of the District Courts of the United States, provided the appropriate forum for the resolution of the Plaintiffs’ claims.
Plaintiff, a United States citizen domiciled in Germany, alleged that he was injured by an Ethicon Endo-Surgery (“EES”) surgical stapler used in a hemorrhoidectomy performed on him in Simmerath, Germany. Hefferan, 2015 WL 2169689 at *1. Plaintiff’s spouse is a German citizen who also resides in Germany. All treatment of Plaintiff’s surgical complications occurred in Germany. Id. Of thirteen witnesses with discoverable information identified in Plaintiff’s initial disclosures, all but one live in Germany. In addition, Plaintiff identified “two categories of unnamed persons with discoverable information” -- doctors and medical providers at two German hospitals. Id.
Defendant EES is an Ohio corporation with its principal place of business in Ohio, and co-defendant Johnson & Johnson is a New Jersey corporation with its principal place of business in New Jersey. Id. The “overall direction of EES’s business, and work related to the design and marketing of the stapler and to regulatory compliance and quality control, took place principally at EES’s facility” in Ohio.” Id. Defendants identified two witnesses with discoverable information, both Ohio residents. Id.
Plaintiffs initially filed suit in the District of New Jersey, and Defendants moved to dismiss based on forum non conveniens. The Court declined to decide whether the case should be dismissed, but, concluding that the action had no connection to New Jersey, transferred it to the Southern District of Ohio, where Defendants renewed their forum non conveniens motion to dismiss.
As the Court explained, “[A] dismissal on forum non conveniens grounds is appropriate where the defendants established, first, that the claim can be heard in an available and adequate alternative forum, and, second, that the balance of private and public factors reveals that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court.” Id.(internal punctuation and citation omitted).
Adequate Alternative Forum
As an initial matter, the Court found that the German court system provided an adequate alternative forum for the case. Defendants had consented to service in Germany and had stipulated that they would not plead limitations if Plaintiffs re-filed within a reasonable period of time. Id., at *3. Plaintiffs argued that German courts did “not provide an adequate forum because of differences between [German] substantive and procedural rules” and those in the Southern District of Ohio. Specifically, Plaintiffs pointed out that German law did not allow loss of consortium claims or claims for punitive damages. However, the Court held that “the rights and remedies available in the foreign forum need not be identical for the foreign forum to be adequate.” Id. (citation omitted).
Next, Plaintiffs protested that they would recover less money in Germany than they would in the United States. Plaintiffs’ candor about the true reason for their forum-shopping did nothing to soften the Court’s disapproval of this practice. To the contrary, the Court held, “While Plaintiffs may recover less money in Germany, that fact alone does not render the German forum inadequate. Indeed, the fact that Plaintiffs, who chose to live in Germany and obtain medical care there, sued in the United States for injuries suffered in Germany because they thought doing so would get them more money, is a factor that favors dismissal.” Id. (citation omitted). Thus, the Court concluded, “Defendants have established that the Regional Court of Aachen, Germany is an available and adequate alternate forum.” Id. at *4.
Plaintiffs’ Choice of Forum and the Balance of Public and Private Interests
The Court explained that, before balancing the private and public interest factors, it was required to determine how much deference to afford to Plaintiffs’ choice of forum. While, “[i]n general, a plaintiff’s choice of forum is afforded a great amount of deference,” in this case, “Plaintiffs did not choose this forum” (having initially filed in New Jersey). Moreover, the Court again emphasized that Plaintiffs’ forum-shopping cost them deference they might otherwise have been afforded: “Plaintiffs are entitled to less deference regardless, because they chose a forum, where they do not reside and that is obviously not convenient for them, for obvious tactical reasons.”
The Court went on to explain that the relevant private interests included “ the relative ease of access to sources of proof, the availability of compulsory process for attendance of unwilling witnesses, . . . and other practical problems that make trying a case easy, expeditious, and inexpensive.” Id. The Court found that these factors weighed in favor of Defendants’ motion, as access to proof would be more convenient – and, in some instances, perhaps only available – in a German proceeding.
Relevant public interests “include administrative difficulties of courts with congested dockets, the burden of jury duty on people of a community having no connection with the litigation, desirability of holding a trial near those most affected by it, and the appropriateness of holding a trial in a diversity case in a court which is familiar with the governing law.” Id. at *6 (citation omitted). The Court noted that “Germany has a greater interest in the resolution of this litigation, because it concerns a product sold in Germany and used by a German citizen in a German hospital on a patient living in Germany.” Id. (citation omitted).
In contrast, while the device in question was developed in the United States, it was “sold and used in Germany by German surgeons.” In addition, “. . . Plaintiffs are German residents, and [Plaintiff] chose to have his surgery and follow-up care in Germany.” Thus, under the relevant “most significant relationship” choice-of-law analysis, “German law governs the claims. Applying German law is a strong factor favoring dismissal.” Id. at *7 (citation omitted). Finally, “[t]he imposition of jury duty upon citizens who have no relation to the litigation also weighs in favor of the Defendants.” Id. The Court concluded, “Therefore, the public interests also weigh strongly in favor of Defendants. The balance of private and public factors reveals that trial in this forum would be unnecessarily burdensome for both the Defendants and this Court.”
And so ended Plaintiffs’ dreams of reaping the bounty of American law for their German-based claims. Hefferan’s lesson? Buyer beware. Under a strong judge, the U. S. court system is not always a pleasant place to shop.