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ALEXANDER v. RICHARDSON-MERRELL INC.

February 1, 1982

KEITH NEIL ALEXANDER, an infant by and through RONALD GEORGE HAWES ALEXANDER and VALERIE JOYCE ALEXANDER, his parents and natural guardians, and RONALD GEORGE HAWES ALEXANDER and VALERIE JOYCE ALEXANDER, individually, Plaintiffs,
v.
RICHARDSON-MERRELL INC., a Delaware corporation, Defendant. AND ELEVEN (11) RELATED CASES BEARING DOCKET NOS. 81 Civ. 2100, 81 Civ. 3264, 81 Civ. 3266, 81 Civ. 3267, 81 Civ. 3268, 81 Civ. 3270, 81 Civ. 3271, 81 Civ. 3272, 81 Civ. 3274, 81 Civ. 3275, and 81 Civ. 3276


Charles L. Brieant, United States District Judge.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

By motions fully submitted to this Court for decision on December 21, 1981, defendant in these related cases moved, after filing of the answer in all but one of the cases, for an order dismissing the complaints on the grounds of forum non conveniens. The convenient forum, according to defendant, would be the Courts of the United Kingdom.

 While these motions to dismiss were under consideration by this Court, and after the Court had substantially drafted an opinion disposing of the motion, plaintiffs, by motions docketed January 19, 1982, returnable January 29, 1982, moved in all cases to discontinue the actions pursuant to Rule 41(a)(2), F.R.Civ.P., without prejudice, in order that they may be reinstituted in the Southern District of Ohio, or alternatively, to transfer to the Southern District of Ohio.

 Defendant has opposed the subsequent motions for a voluntary dismissal or transfer, or alternatively asks that this Court impose costs and condition dismissal on agreement not to refile in the United States.

 The motion under Rule 41(a)(2) is addressed to the discretion of the Court, while a Notice filed under Rule 41(a)(2), F.R.Civ.P., not available in these cases, *fn1" apparently allows a plaintiff to discontinue without prejudice at any time prior to the filing of a motion for summary judgment or an answer by which "issue is joined." This rule has been construed most favorably to plaintiffs. See generally 5 J. Moore's Federal Practice para. 41.02[3]. The numerous cases therein cited include cases where motions for a stay, or for an order directing arbitration were held not to cut off plaintiff's right to dismiss the action on its own initiative without prejudice prior to answer. Indeed, the pendency of a motion for change of venue, made under 28 U.S.C. § 1404(a), a motion certainly analogous to defendant's instant motions to dismiss for forum non conveniens (except that the preferred place for trial is domestic rather than foreign), has been held not to be a sufficient pleading to preclude voluntary dismissal by plaintiff without prejudice as a matter of right. See Sheldon v. Amperex Electronics Corp., 449 F.2d 146 (2d Cir. 1971) and cases therein cited.

 It is somewhat anomalous that procedures should exist for a litigant to "fight and then run away" merely for the purpose of living to fight another day. It also makes no sense that the filing of an "answer" by which the litigation becomes "at issue" should trigger a change in the right to discontinue, making it a discretionary privilege for the Court to withhold or allow, rather than an absolute right. In truth, the answer in a civil action is the most useless paper in the courthouse. It is clear in most cases even before a lawsuit is filed, that the defendant (usually having rejected a demand by lawyer's letter for the relief sought in the suit) intends to oppose. Answers are usually taken straight from the form book and consist mainly of boilerplate denials and traditional affirmative defenses. It adds nothing to the attributes of a lawsuit that it is "at issue."

 The motions in these cases to dismiss for forum non conveniens have been heard by this Court. Extended oral argument took place and a significant investment of judicial time and effort has been made towards resolving this important issue. The Supreme Court had decided Piper Aircraft Co. v. Reyno, U.S. , 50 U.S.L.W. 4055 on December 8, 1981, after these motions had been filed but prior to oral argument. The importance of that decision is discussed infra. Suffice it to say that plaintiffs may have perceived that the motions to dismiss would be likely granted.

 Defendant wishes to have these cases litigated in the United Kingdom; plaintiff would like to have them tried in New York. It is clear that New York is not a proper venue for these cases, which, if they are not to be tried in the United Kingdom, should be tried in Ohio where the defendant had its principal office at the time the actions were commenced, and where its files and records are. An argument could also be made for trial in Connecticut on the theory that that is where the first step in the tortious conduct which gave rise to the claims may have taken place. Delaware would also be proper venue.

 There is no significant difference between any of these related cases. Defendant, now known as Merrell-Dow Pharmaceuticals, Inc. was originally incorporated on August 12, 1933 under the name Vick Chemical Company. On October 21, 1960 its name was changed to Richardson-Merrell, Inc. and it acquired its present name as of March 10, 1981. From its incorporation until 1974, the principal office of defendant was located in this District. Thereafter, it had its principal office at Wilton, Connecticut until March 10, 1981 when it established its principal office in Cincinnati, Ohio. It is amenable to in personam jurisdiction in this District.

 The Court has subject matter jurisdiction pleaded under 28 U.S.C. § 1332 based on diversity between plaintiffs as aliens and residents of the United Kingdom, and the defendant Delaware corporation, having its principal office in Ohio at the time that these actions were filed.

 Defendant manufactures a prescription drug known as "Bendectin" in the United States. It is the source of an essentially similar although not identical drug sold in the United Kingdom as "Debendox." Plaintiffs allege that the American corporation sued here either designed, formulated or compounded the drug Debendox, or in the words of the complaint, "developed, marketed and promoted" it as a drug for the treatment of "morning sickness" in pregnancy, and represented it as safe for that use. It is alleged that while promoting the drug, responsible executives employed by defendant, knew and concealed the results of tests which indicated the drug to be teratogenic. An affirmative scheme of concealment of the results of medical research which indicated this difficulty with the product is alleged, as well as negligent and fraudulent misrepresentations. Claims are pleaded alternatively on some six separate legal theories; familiarity with which is assumed. In the United Kingdom, defendant acted through a subsidiary.

 Each child plaintiff in these cases was born to a mother who ingested Debendox during her pregnancy pursuant to a prescription issued by a physician in the United Kingdom. The drug was obtained either from the prescribing physician, or from a pharmacy in the United Kingdom or from a similar overseas place of origin. Each plaintiff was born in the United Kingdom. Each suffered congenital disabilities allegedly as a result of the ingestion there by his or her mother of the drug Debendox. These injuries were first diagnosed and thereafter treated within the jurisdiction of the United Kingdom.

 On December 8, 1981, in Piper Aircraft Co. v. Reyno, supra, the Supreme Court reconsidered the issues concerning claims of forum non conveniens citing with approval its prior decisions in Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947) and its companion case Koster v. Lumberman's Mutual Casualty Co., 330 U.S. 518 (1947).

 The rule under Gilbert and Koster, reiterated in Piper Aircraft is that the trial court may in the exercise of its sound discretion dismiss the case" when the "chosen forum is inappropriate because of considerations affecting the court's own ...


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