Appellate Court Decision May Herald a Nationwide Trend
On July 31, 2007, the Appellate Division of the New Jersey Superior Court affirmed the forum non conveniens dismissal of pharmaceutical product liability claims filed by 95 U.K. plaintiffs in In re Vioxx Litigation, Docket No. A-1731-06T1. The case involved allegations asserting personal injury claims allegedly caused by defendant Merck & Co., Inc.'s anti-inflammatory medicine, Vioxx. This is a noteworthy forum non conveniens decision that could well have ramifications outside of New Jersey, particularly in other mass tort situations.
The Court applied the forum non conveniens doctrine set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), which was adopted in New Jersey in Gore v. U.S. Steel Corp., 15 N.J. 301 (1954). First, the Court found that the U.K. was an adequate alternative forum for these plaintiffs, rejecting plaintiffs' argument that their inability to recover identical damages in the U.K., including punitive damages, and other factors, made the U.K. an inadequate alternative forum. Second, balancing the parties' "private interest" factors, the Court found them to be "geographically divided," and not dispositive of Merck's burden of showing that the New Jersey forum is "demonstrably inappropriate."
Finally, the Court held that the "public interest" factors were decisive. It was likely that U.K. law would apply to issues relating to product approval and labeling, which occurred in the U.K. Further, the U.K. forum had a "distinctive" interest in adjudicating a case involving a prescription drug that was subject to U.K. regulatory approval, and was sold and ingested in the U.K. The U.K. also had a strong interest in addressing the injuries of its citizens that occurred within its borders. While New Jersey has an interest in regulating the conduct of New Jersey-domiciled corporations, the Court held that New Jersey's interest would be "well-satisfied" through litigation of the 15,000 Vioxx suits filed by U.S. residents that were pending in New Jersey.
Also, the Court pointed to "the administrative difficulties which follow from having litigation pile up in congested centers" as one of the critical "public interest" factors that weighed in favor of forum non conveniens dismissal. The administrative burden associated with handling the claims of U.K. and other foreign plaintiffs in New Jersey was substantially greater than the burden imposed on the New Jersey courts by the claims of citizens from other states. Foreign countries are better able to interpret their own applicable law and protect their citizens under the circumstances.
What makes the case noteworthy is the fact that the defendant Merck is headquartered in New Jersey and stipulated for purposes of the motion that the sale and marketing of Vioxx were directed from New Jersey. It is unusual for a defendant to be able to argue successfully that it should not be sued on its home turf - not only where it is headquartered, but also from where its activities relating to the product at issue were directed. Nevertheless, the Court held that Merck had satisfied its burden of demonstrating that the New Jersey forum is "demonstrably inappropriate" based upon the "public interest" factors of the forum non conveniens inquiry. The Court made it clear that a plaintiff's private right to sue a defendant in the defendant's home state may be trumped by public interest factors dictating that another forum is more appropriate. It appears likely that Supreme Court review will be sought. It will be interesting to see what, if anything, the Supreme Court of New Jersey does with this case.