Over the centuries, many have sought better opportunities in the United States. For the last few years, tort plaintiffs have been among them. Companies in many industries have been the target of lawsuits filed by plaintiffs who live outside the United States, over injuries that also allegedly occurred elsewhere, whether because of perceived advantages in substantive law within the United States, or access to procedural devices in U.S. courts that are not widely available in the rest of the world (such as the class action device).

In a May 1 opinion by Judge Posner filed in two consolidated appeals, Abad v. Bayer Corp. and Pastor v. Bridgestone/Firestone North American Tire, LLC, the Seventh Circuit affirmed dismissal of two cases on grounds of forum non conveniens. In both cases, the plaintiffs are Argentine citizens who live in Argentina and allegedly were injured there, but filed product liability lawsuits against American manufacturers in U.S. district courts. Under the familiar forum non conveniens doctrine, the district courts had weighed various factors and concluded in both cases that Argentina was better-suited to decide plaintiffs' lawsuits -- Abad being a 600-plaintiff class action in which hemophiliacs contended they contracted the AIDS virus from the defendant's clotting factor, and Pastor an auto accident rollover case involving allegedly defective tires.

On appeal, although the plaintiffs agreed that forum non conveniens dismissals are subject only to abuse of discretion review, they argued that district courts abuse their discretion in granting a forum non conveniens dismissal unless "the balance of relevant factors inclines very steeply in favor of dismissal," because of the supposed importance of a plaintiff's initial choice of forum.

Following In re Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d 951 (7th Cir. 2007), the Seventh Circuit noted that when a plaintiff has filed suit far from home, there is less reason to assume the plaintiff's choice of forum is reasonable, and thus "the presumption in favor of allowing the plaintiff to stay in the court of his choice is weakened." Stated another way,

When the plaintiff wants to sue on the defendant's home turf, and the defendant wants to be sued on the plaintiff's home turf, really all that the court is left to weigh is the relative advantages and disadvantages of the alternative forums.

Unfortunately for any party looking for certainty in litigation, there is a long list of factors potentially relevant to a district court's comparison of two jurisdictions -- and it is not limited, as the parties have "free reign to suggest any reason" for one jurisdiction over the other. At least in Abad and Pastor, though, the balance of relevant factors tipped in favor of returning the plaintiffs to Argentina to litigate.

The factors noted by the Seventh Circuit regarding Abad are worth mention, since that is a product liability class action involving a life sciences defendant. The district court had allowed the plaintiffs to complete their pretrial discovery in the U.S. before granting the forum non conveniens dismissal, while the defendant's discovery of the plaintiffs' medical records in Argentina remained - and regardless of the chosen forum, one side's discovery would have to be translated. Since the plaintiffs' had not submitted a "realistic estmate" of the quantity of documents that would have to be translated into Spanish for litigation in Argentina, nor the cost of translation, the Seventh Circuit considered translation difficulties and costs a wash. Next, the court turned to which jurisdiction's law was likely to apply and plaintiffs' contention that an Argentine court would apply American law. The Seventh Circuit doubted that Argentina would apply U.S. law - based on limited legal authorities on the issue - while concluding that U.S. courts would apply the "significant relationship" test and apply the law of Argentina since that was where the alleged injuries (and thus any tort) occurred. Finally, because there is a "dearth of Argentine legal materials" regarding the class liability theory in Abad -- market share liability -- litigation in Argentina was particularly appropriate. Given the "superior competence" of the Argentine courts in matters of Argentine law, the Seventh Circuit concluded it was more appropriate for Argentine courts to resolve such uncertain aspects of Argentine law.