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LEDINGHAM v. PARKE-DAVIS DIV. OF WARNER-LAMBERT CO

February 20, 1986

STEPHANIE LEDINGHAM, as mother and natural guardian of PHILIP DAVID LEDINGHAM, an infant, Plaintiff,
v.
PARKE-DAVIS DIVISION OF WARNER-LAMBERT COMPANY, PARKE, DAVIS & COMPANY, WARNER-LAMBERT COMPANY, Defendants



The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

The infant plaintiff is alleged to have suffered serious birth defects as the result of his mother's ingestion of the drug DILANTIN during pregnancy. Defendants move to dismiss this diversity action on the ground of forum non conveniens. For the reasons stated below, the motion is granted. *fn1"

Facts

 Plaintiff's mother, Stephanie Ledingham, is a citizen and resident of Canada. She alleges that she ingested the drug DILANTIN during and prior to her pregnancy in 1969-1970. Her son, Philip David, was born with serious birth defects, including a cleft palate, an inner-ear malformity, and a congenital heart defect.

 In a complaint sounding in negligence, breach of warranty and strict liability, plaintiff seeks both compensatory and punitive damages.

 Defendant Warner-Lambert Company ("Warner-Lambert") is a Delaware corporation with its principal place of business in New Jersey. Defendant Parke, Davis & Company ("Parke, Davis"), a wholly-owned subsidiary of Warner-Lambert, is a Michigan corporation with its principal place of business in New Jersey. Defendant Parke-Davis Division of Warner-Lambert Company is an operating division of Warner-Lambert having no separate and distinct corporate identity.

 DILANTIN is an anti-convulsant drug, first marketed, sold and distributed in the United States by Parke, Davis in 1938. Defendants claim, however, that the DILANTIN ingested by Mrs. Ledingham was manufactured, packaged, advertised, promoted and marketed by Parke Davis Canada, Inc., a separate and independent corporation organized under the laws of Canada. Moreover, the drug was prescribed to plaintiff by Canadian physicians, dispensed at Canadian pharmacies and ingested in Canada. Finally, the manifestation and treatment of the infant's injuries occurred there. Defendants argue, accordingly, hat this Court should dismiss the complaint since Canada provides a more convenient forum for the litigation.

 Plaintiff argues, however, that the allegedly tortious conduct complained of arises neither from the manufacture nor the administration of the drug, but from defendants' decision to place the drug in the stream of commerce with knowledge that the accompanying warnings were inadequate. Thus, since the original development and testing of the drugs and, perhaps, the alleged withholding of adequate warnings, occurred in this country, plaintiff argues that defendants' forum non conveniens motion should be denied.

 Discussion

 The doctrine of forum non conveniens allows a court, in its discretion, to "resist imposition upon its jurisdiction" even though jurisdiction and venue are technically proper, if it appears that the convenience of the parties and the ends of justice warrant dismissal. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). The Supreme Court has described the appropriate inquiry.

 Initially, the Court must determine whether there is, in fact, an alternative forum. Piper Aircraft v. Reyno, 454 U.S. 235, 254, 70 L. Ed. 2d 419, 102 S. Ct. 252 n.22 (1981). Once the existence of an alternative forum is established, the court must balance the public and private interests at stake in assessing the relative convenience of the forum chosen by plaintiff as compared to the available alternative forum. Gulf Oil v. Gilbert, supra, 330 U.S. at 507-508. Although traditionally there is a presumption in favor of the plaintiff's choice of forum, defendants' burden of showing inconvenience to rebut the presumption is less stringent where, as here, the plaintiff is a foreign citizen. See Piper Aircraft v. Reyno, supra, 454 U.S. at 255-56.

 A. Availability of an Alternative Forum

 Defendants maintain that the courts of Ontario, Canada provide a suitable alternative forum for this case. Indeed, defendants have offered to consent to suit by plaintiff in the courts of Canada as a condition for dismissal.

 Defendants, moreover, have provided the Court with an affidavit from Alan J. Lenczner, a barrister in Ontario, who opines that plaintiff could bring her claim in a Canadian court on theories of (a) negligence, (b) failure to warn of an inherent danger in the use of a product, and (c) breach of an implied warranty of merchantability. See Lenczner Affidavit at P 15. Barrister Lenczner informs the Court, however, that the Canadian courts (a) do not recognize a claim of strict products liability, (b) do not permit the representation of clients ...


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