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DOWLING v. HYLAND THERAPEUTICS

July 2, 1991

JOSEPH DOWLING AND MARY DOWLING, PLAINTIFFS,
v.
HYLAND THERAPEUTICS DIVISION, TRAVENOL LABORATORIES, INC., NOW KNOWN AS BAXTER HEALTHCARE CORP., ARMOUR PHARMACEUTICAL CO., INC. AND MILES LABORATORIES, INC., DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Defendants, Hyland Therapeutics Division, Travenol Laboratories, Inc., now known as Baxter Healthcare Corp. ("Baxter"), Armour Pharmaceutical Co., Inc. ("Armour"), and Miles Laboratories, Inc. ("Miles"), move to dismiss the present action for forum non conveniens. Subject to the conditions stated below, the motion is granted, and this suit is dismissed without prejudice to renewal if the conditions are not met. The suit may be brought in Ireland, where plaintiffs, Joseph and Mary Dowling, reside and the alleged treatment and injury occurred.

STATEMENT OF FACTS

This suit is a products liability action. Plaintiffs, an Irish citizen and his wife, claim that negligence on the part of the three defendant American pharmaceutical companies resulted in Joseph Dowling's ("Dowling") infection with the human immunodeficiency virus ("HIV") in Ireland in 1985 and his consequent affliction with AIDS. Specifically, Dowling, a hemophiliac, alleges that the blood clotting product, Factor VIII, which was being administered to him prior to his infection with HIV, and which any of the defendants may have manufactured, was contaminated.

Defendants, all of whom "do business" in the New York forum, but whose principal places of business are Illinois, Pennsylvania, and Indiana, respectively, all have subsidiaries in Ireland which market and distribute Factor VIII. Each defendant, however, processes its Factor VIII in the United States,*fn1 and at least one defendant, Armour, "collects" its blood products within the United States.*fn2

DISCUSSION

Defendants have moved to dismiss this case on the grounds of forum non conveniens in favor of Ireland. Under the doctrine of forum non conveniens, a court may decline to take jurisdiction even though jurisdiction has been properly obtained by the litigants and may be lawfully exercised over them. The central concern in a forum non conveniens inquiry is whether the plaintiff's chosen forum is so inconvenient as to warrant dismissal. Ordinarily, there is a "strong presumption" in favor of the plaintiff's choice of forum. Piper Aircraft v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265-66, 70 L.Ed.2d 419 (1981). However, that presumption has less force when the plaintiff, as here, is not a United States citizen. Id. See Jennings v. Boeing, 660 F. Supp. 796, 804 (E.D.Pa. 1987), aff'd, 838 F.2d 1206 (3d Cir. 1988). Defendants have the "burden" of showing that plaintiffs' choice of forum should be disturbed, Schertenleib v. Traum, 589 F.2d 1156, 1160 (2d Cir. 1978), and that an alternative forum in fact exists. Piper Aircraft Co. v. Reyno, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. Here such a forum does exist, as defendants have already consented to service and appearance in Ireland.

In Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), the Supreme Court divided the factors to be considered in applying forum non conveniens into two categories, `private interest' and `public interest.'

I. Private Interest Considerations

"The factors pertaining to the private interests of the litigants include[] the `relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.'" Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6, 102 S.Ct. 252, 258 n. 6, 70 L.Ed.2d 419 (1981), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).

Here it is apparent that all evidence relating to Dowling's medical history and medical treatment is in Ireland. As Dowling is a fifty-one year old hemophiliac, both histories are apt to be extensive; for example, because numerous blood tests and products have been administered to Dowling, there is a strong possibility of exposure to HIV through products or actions other than those of defendants. Further, the manner in which Dowling was administered Factor VIII, other products, and health care on each occasion, and the potential liability of hospitals, clinics, medical personnel, suppliers of equipment, or other manufacturers of blood clotting products, all present issues of proof to which Ireland as forum would provide better access.

On the other hand, the evidence relating to the question of whether defendants' products were negligently manufactured or were defective upon leaving defendants' premises is evidence to which New York has easier access. Such evidence may be the critical liability evidence. Carlenstolpe v. Merck & Co., Inc., 638 F. Supp. 901, 906 (S.D.N.Y. 1986), appeal dismissed, 819 F.2d 33 (2d Cir. 1987) (defendant American pharmaceutical company, sued in negligence by Swedish plaintiff regarding hepatitis vaccine developed and manufactured in Pennsylvania and administered in Sweden, was denied dismissal to Sweden for forum non conveniens).

In either forum third party witnesses from the other forum would not be subject to compulsory process. The party seeking to call them would have to rely on letters rogatory. In this connection it is noted that plaintiffs' evidence from within the United States would, in all probability, be documents and testimony of employees of defendants, whereas it is much more likely that defendants' discovery in Ireland would involve third party witnesses.

Either party would have the expense of transporting willing witnesses to the other forum. In view, however, of defendants' inability to implead potential third party defendants, the private interests favor Ireland as the forum, "as long as plaintiff[s'] access to the . . . records is assured, as it will be by the conditions placed on dismissal." Ledingham v. Parke-Davis Div. of Warner Lambert, 628 F. Supp. 1447, 1451 (E.D.N.Y. 1986). See Pain v. United ...


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