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CARLENSTOLPE v. MERCK & CO.

June 27, 1986

ERIC CARLENSTOLPE, Plaintiff,
v.
MERCK & CO., INC., Defendant



The opinion of the court was delivered by: MOTLEY

MOTLEY, Ch. J.

 Plaintiff Eric Carlenstolpe is a Swedish resident and citizen who suffered serious injury in the form of disabling arthritis after he received two doses of a hepatitis vaccine, HB-Vax, that had been developed, tested, and manufactured by defendant in the United States. Plaintiff, who is an opera singer, had been injected with the vaccine in Sweden while he was working part-time as a medical laboratory assistant. The vaccine, which had been approved by the Swedish government, was administered to plaintiff pursuant to defendant's marketing recommendation that laboratory and hospital personnel working with blood plasma become the first recipients of the product.

 Defendant, a New Jersey corporation, developed and produced the HB-Vax vaccine at issue in this case through its subsidiary, Merck, Sharp & Dohme, located in West Point, Pennsylvania. The vaccine had been approved for use in the United States by the Food and Drug Administration and has been marketed in this country for several years.

 In Sweden, the importation and distribution of the vaccine were handled by defendant's Swedish subsidiary and by Swedish government agencies. Merck, Sharp & Dohme (Sweden) A.B., was responsible for importing and selling the drug to the Swedish government. Thereupon, the vaccine was licensed and distributed by Swedish government agencies who in arriving at their licensing and distribution decisions relied on the information provided by defendant American drug company. This information about the vaccine was essentially the same information that defendant had supplied to the FDA in Washington for United States approval of the product. The Swedish government agencies were responsible as well for furnishing warnings and descriptive information regarding the vaccine, also based on American produced information that had been provided by defendant. No independent testing or evaluation of the drug was performed in Sweden either by defendant's Swedish subsidiary or by the Swedish government agencies.

 Defendant, which describes itself as "a worldwide organization engaged primarily in the business of discovering, developing, producing, and marketing human and animal health products," has now moved for dismissal on the ground of forum non conveniens. There is no dispute that this court has jurisdiction over defendant personally and over the subject matter of this lawsuit in diversity. Defendant argues, however, that an alternative Swedish forum is more appropriate than plaintiff's chosen New York forum. According to defendant, Sweden's strong interest in the outcome of this litigation, as well as the presence there of certain evidence necessary to defendant's case, makes the Swedish forum more convenient and just to all concerned. Plaintiff counters that no good reason exists for a forum non conveniens dismissal because the crucial evidence in this case is located in Pennsylvania and New Jersey, both convenient to New York. Plaintiff also asserts that dismissal would be improper because the generally unfavorable Swedish law for persons such as plaintiff makes defendant's proposed alternative forum a less than adequate one.

 This court recognizes that Sweden unquestionably has some interest in this litigation and also that a certain amount of evidence necessary to the pursuit of this lawsuit is located in that country. This is not enough to invoke the drastic measure of dismissal for forum non conveniens, however, because under the well-established principles of the doctrine as set forth by the Supreme Court, defendant has not convinced this court that plaintiff's chosen forum is itself so inconvenient and unrelated to the subject matter of this litigation that trial in this forum would be adverse to the best interests of justice. Thus, for the reasons that follow, defendant's motion is denied.

 DISCUSSION

 The central concern in a forum non conveniens inquiry is whether the inconvenience of plaintiff's chosen forum in terms both of the private and public interests implicated by the particular litigation is so great as to recommend dismissal, notwithstanding the fact that jurisdiction itself is proper, and notwithstanding too, the deference ordinarily given to plaintiff's forum choice. The decision of whether to dismiss on forum non conveniens grounds is within the sound discretion of the district court, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), and must be made by applying to the particular facts of the case the various public and private interest factors that have been enunciated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), and most recently affirmed in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1982).

 In determining a forum non conveniens motion, "there is a strong presumption in favor of the plaintiff's choice of forum unless private and public interest considerations clearly point to trial in the alternate forum." Karvelis v. Constellation Lines SA, 608 F. Supp. 966, 971 (S.D.N.Y. 1985) (citing Gulf Oil Corp. v Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947) ("unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed"); Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 966-68 (2d Cir. 1980), cert. denied, 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871 (1981). Dismissal will ordinarily be appropriate only where plaintiff's choice of forum imposes a heavy burden on the defendant or the court, and where plaintiff is unable to offer any specific reasons of convenience supporting his choice. Piper Aircraft Co. v. Reyno, supra at 249.

 Where plaintiff is a foreign citizen this presumption in favor of plaintiff's choice has less force. Piper Aircraft Co., v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1982). Nonetheless, even in this context defendant still has the burden to demonstrate why the presumption in favor of plaintiff's choice, weakened though it may be, should be disturbed. Karvelis v. Constellation Lines SA, 608 F. Supp. 966, 972 (S.D.N.Y. 1985); Ayers v. Arabian American Oil Co., 571 F. Supp. 707, 709 (S.D.N.Y. 1983) (foreign plaintiffs' choice of forum "is still entitled to some deference"). See also Kontoulas v. A.H. Robins Co., Inc., 745 F.2d 312, 315-316 (4th Cir. 1984); Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 66 (2d Cir. 1981). Accordingly, in the instant case, the Swedish plaintiff's choice of a New York forum should not be disturbed unless defendant can demonstrate that this forum would be unreasonably inconvenient in terms of the private and public interests involved in the litigation.

 Existence of an Adequate Alternative Forum

 Before assessing the private and public interests at stake in a forum non conveniens determination, the court must first decide whether an adequate alternative forum exists, Piper Aircraft Co. v. Reyno, supra at 254 n.22, for the forum non conveniens doctrine "presupposes at least two forums in which defendant is amenable to process." Gulf Oil Corp. v. Gilbert, supra at 506-507; see also In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F. Supp. 842 (S.D.N.Y. 1986) (Star Dec, Vol 20-86, p. 80). Ordinarily the requirement of an alternative forum will be satisfied simply if defendants are amendable to service in the other jurisdiction. Piper Aircraft Co. v. Reyno, supra at 254 n.22. If no such alternative forum exists, however, the suit generally should not be dismissed regardless of the private and public inconvenience involved in maintaining suit in the existing forum.

 In the present case it is fairly clear that Sweden provides an adequate alternative forum for plaintiff's lawsuit. Sweden has a well developed legal system containing many important procedural safeguards such as the right to present evidence and call witnesses, and the right to appeal. See Bergquist v. Medtronic, Inc., 379 N.W.2d 508 (1986); Wahlin v. Edo Corp., 17 Av. Cas. (CCH) 17,562 (Sup. Ct. Queens Co. 1982) (concluding in forum non conveniens context that Swedish legal system offers adequate alternative forum). Furthermore, within the Swedish legal system, plaintiff has recourse both to the Swedish Drug Insurance System, a non-exclusive administrative route to recovery, or to the Swedish Court of First Instance. Although Sweden has no jurisdiction over defendant and cannot enforce a judgment against defendant, facts that could obviously defeat the adequacy of Sweden as an alternative forum, the court finds this immaterial in the present context because defendant has represented to the court that if this motion is granted it will voluntarily subject itself to Swedish jurisdiction and will pay any judgment entered against it by a Swedish court. See In re: Union Carbide Corp. Gas Plant Distaster at Bhopal, India in December 1984, supra, Star Dec, Vol 20-86, at 101-102.

 Plaintiff's argument that Sweden cannot be said to provide an adequate alternative forum because of its undeveloped and relatively pro-defendant products liability law, is entirely without merit. The fact that an alternative foreign forum offers less favorable law than available in an American forum is clearly insufficient to render the foreign forum "inadequate" for forum non conveniens purposes so as to preclude dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251-255, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). But see id. at 254 (where remedy provided by alternative forum is so inadequate that it is no remedy at all, the unfavorable change in law may be given substantial weight); Irish National Insurance Company, Ltd. v. Aer Lingus Teoranta, 739 F.2d 90, 91 (2d Cir. 1984) ("In some instances, invocation of the [forum non conveniens] doctrine will send the case to a jurisdiction which has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will be tried. When it is obvious that this will occur, discussion of convenience of witnesses takes on a Kafkaesque quality -- everyone knows that no witnesses ever will be called to testify." (emphasis added)). Because plaintiff's principal arguments regarding the alleged inadequacy of Sweden as a forum go not to the intrinsic inadequacy of the Swedish legal ...


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