United States District Court, Southern District of New York
July 2, 1991
JOSEPH DOWLING AND MARY DOWLING, PLAINTIFFS,
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,
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
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
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
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
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 Technologies Corp.,
637 F.2d 775, 790 (D.C.Cir. 1980), cert. denied, 454 U.S. 1128, 102
S.Ct. 980, 71 L.Ed.2d 116 (1981).
II. Public Interest Considerations
"The public factors bearing on [a forum non conveniens
determination] include the administrative difficulties flowing
from court congestion; the `local interest in having localized
controversies decided at home'; the interest in having the trial
of a diversity case in a forum that is at home with the law that
must govern the action; the avoidance of unnecessary problems in
conflict of laws, or in the application of foreign law; and the
unfairness of burdening citizens in an unrelated forum with jury
duty." Piper Aircraft v. Reyno, 454 U.S. at 241 n. 6, 102 S.Ct.
at 258 n. 6, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. at
509, 67 S.Ct. at 843.
Since plaintiffs are requesting punitive damages, the trier of
fact may be required to decide if the protection of the public
requires that a defendant here be punished for its conduct. The
public interest in AIDS prevention is equally important in New
York as in Ireland. However, in all other respects the public
interest clearly favors trial in Ireland. Irish law would apply
since Dowling received treatment, allegedly contracted HIV, and
at all times resided in Ireland. See Ledingham v. Parke-Davis
Div. of Warner-Lambert, 628 F. Supp. 1447, 1452 (E.D.N.Y. 1986).
Furthermore, any compensatory damages for expenses or loss of
consortium could be
more fairly assessed in Ireland by a trier of fact knowledgeable
about expenses in that country. In view of the foregoing, the
case should be dismissed on forum non conveniens grounds.
In order to ensure that neither party is prejudiced by this
determination, defendants' motion to dismiss will be granted on
condition that defendants execute and file with this Court within
30 days of the date of this order a certificate stating:
1. that defendants consent to suit and acceptance of process in
any suit plaintiffs file in Ireland on the claims that are the
subject of the instant suit;
2. that defendants waive any statute of limitations defense
that may be available to them in Ireland;
3. that defendants will afford plaintiffs discovery in the
United States by any of the methods permitted by Rule 26 of the
Federal Rules of Civil Procedure for actions conducted in the
United States, and that defendants agree to make available for
discovery and for trial, and at their own expense, any documents,
records, or witnesses, including retired employees, within their
control that are needed for the fair adjudication of the
plaintiffs' claims in Ireland;
4. that defendants will not act to prevent plaintiffs from
returning to this Court if the Court in Ireland declines to
accept jurisdiction of this action, if it is filed in Ireland
within 60 days of the entry of this Order.
For the reasons stated above, defendants' motion to dismiss
this action for forum non conveniens is granted, subject to
defendants' compliance with the named conditions.
IT IS SO ORDERED.