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