The opinion of the court was delivered by: WILLIAM C. CONNER
These two cases arise from the tragic injuries sustained when a number of Irish patients suffering from congenital hemophilia were infused with blood products contaminated by the human immunodeficiency virus ("HIV"). Both cases are here on identical motions to dismiss on grounds of forum non conveniens. Plaintiff Mary C. Doe, a citizen and resident of Ireland, asserts a derivative cause of action against defendants for the pain, suffering, and wrongful death endured by her brother, James C. Doe, who received HIV-contaminated blood products in Ireland. Plaintiffs in the John M. Doe and Barbara M. Doe multiple plaintiff action are eighty-one Irish citizens,
whose complaints similarly stem from the alleged administration of HIV-contaminated blood products in Ireland.
Hyland Therapeutics Division, Travenol Laboratories, Inc., now known as Baxter Healthcare Corp., ("Baxter"), Armour Pharmaceutical Company, Inc., ("Armour"), and Miles Laboratories, Inc., ("Miles"), defendants in both actions, move to dismiss on the grounds of forum non conveniens, and lack of standing to sue. Due to the identical nature of the issues raised, the two actions are consolidated for purposes of deciding defendants' motions to dismiss. Subject to the conditions set forth below, the motion to dismiss for forum non conveniens is granted in each case, without prejudice to renewal if the conditions are not met. The suits may be brought in Ireland where each of the plaintiffs resides, and where the alleged injuries occurred.
Both suits are product liability actions based on the allegedly negligent collection, manufacturing, processing, labelling, marketing, promotion, distribution, and sale, by defendants, of HIV-contaminated blood products. Compl. of Mary C. Doe ("Mary Doe Compl.") at P 3-9; Compl. of John M. Doe and Barbara M. Doe ("John Doe Compl.") at P 2-8. All the individuals named or represented as plaintiffs in both cases are citizens and residents of Ireland. Aff. of Robert Harley, Attny. for Pl. at 4; John Doe Def. Mem. in Supp. at 5. Each alleges that patients who received medical care in Ireland became infected with HIV from contaminated blood clotting factor concentrates, including a clotting factor known as Factor VIII, manufactured and distributed to third parties by one or more of the defendants, and subsequently administered to patients to ameliorate the effects of congenital hemophilia. Mary Doe Compl. at P 3-9; John Doe Compl. at P 2-8. Plaintiffs are unable to identify the particular defendant, or defendants, who supplied the blood products that caused the HIV infection. Mary Doe Compl. at P 5, John Doe Compl. at P 8.
All the named plaintiffs that allege infection by HIV-contaminated blood products supplied by defendants
received medical treatment for hemophilia in Ireland, were administered blood clotting factor concentrates in Ireland, and sustained the alleged injuries in Ireland. Harley Aff. at 4; John Doe Def. Mem. in Supp. at 5. Neither complaint alleges any contacts between plaintiffs and this forum, other than the fact that counsel for plaintiffs are located in New York.
While all the defendants "do business" in New York, each is incorporated and maintains its principal place of business elsewhere in the United States. Defendant Miles is incorporated under the laws of Indiana, with its principal place of business in Pennsylvania. Aff. of Roger Modersbach, Assoc. Counsel, Biological Products Pharmaceutical Division, Miles Inc., at P 2. Defendant Baxter is incorporated under the laws of Delaware, with its principal place of business in Illinois. Aff. of J. Patrick Fitzsimmons, Assistant Sec., Baxter Healthcare Corp., at P 2. Defendant Armour is incorporated under the laws of Delaware, (Aff. of Kenneth Pina, Assoc. Gen. Counsel and Assistant Sec. of Rhone-Poulenc Rorer, Inc., (Armour's parent corporation), at P 3), with its principal place of business in Pennsylvania. Mary Doe Def. Mem. in Supp. at 6-7. Presumably, the defendants' processing of Factor VIII is subject to the applicable U.S. rules and regulations.
None of the defendants processes Factor VIII concentrate in Ireland, and none of the defendants has indicated collection of any blood products in Ireland. Harley Aff. at 7.
All three defendants process Factor VIII concentrate in the United States in places other than New York. Defendant Miles processes Factor VIII concentrate in either California, or North Carolina. Modersbach Aff. at P 4. Defendant Armour processes Factor VIII concentrate in Illinois, and possibly also in Eschwege, Germany. Pina Aff. at P 3. Defendant Baxter processes Factor VIII concentrate through a division located in California. Fitzsimmons Aff. at P 2.
Defendant Armour collects and tests the plasma derivatives used in processing Factor VIII, and also heat treats Factor VIII at locations in the midwestern and southeastern United States.
The two other defendants, Baxter and Miles, have failed to set forth where they collect, test, and heat treat blood products, other than that all such activities occur at locations other than New York.
Fitzsimmons Aff. at P 3; Modersbach Aff. at P 3, 5, 14. All three defendants also package and label Factor VIII in locations other than New York. Affidavit of Charles Bach, Attny. for Def., at P 21. Each defendant has affiliates in the United Kingdom, or Ireland, that bear responsibility for the marketing and distribution of Factor VIII concentrate in Ireland.
At all relevant times, the administration of blood products supplied by defendants for use in Ireland occurred through third parties, including hospitals, clinics, apothecaries, or other health care providers in Ireland. Mary Doe Compl. at P 4; John Doe Compl. at P 3, 48; Bach Aff. at P 16. The distribution of Factor VIII by defendants is subject to the applicable rules and procedures of the Republic of Ireland.
Plaintiffs' counsel have indicated that the circumstances of both cases currently before this Court, as they relate to the forum non conveniens determination, are identical to those presented in Dowling v. Hyland Therapeutics, 767 F. Supp. 57 (S.D.N.Y. 1991). John Doe Pl. Mem. in Supp. at 3. All three actions name the same three defendants, and involve similar allegations of negligence that resulted in HIV infection of patients under treatment for hemophilia in Ireland. See Dowling, 767 F. Supp. at 58; Mary Doe Compl. at P 3-9; John Doe Compl. at P 2-8. The parties in all three actions are respectively represented by the same attorneys. In Dowling, the Court dismissed the action from this District on grounds of forum non conveniens, conditioned upon defendants' compliance with four enumerated provisions. Dowling, 767 F. Supp. at 60. The conditions imposed upon defendants were:
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.
Dowling, 767 F. Supp. at 60.
Subsequent to the decision in Dowling, plaintiffs' counsel brought these two suits in the New York State Supreme Court, and defendants removed to this Court pursuant to 28 U.S.C. § 1441. Plaintiffs' counsel acknowledges that the instant cases involve identical issues as to forum non conveniens as those addressed in the Dowling Court's conditional dismissal order. Mary Doe Pl. Mem. in Supp. at 3; John Doe Pl. Mem. in Supp. at 3. Despite the dismissal in Dowling, plaintiffs insist this is an appropriate forum in which to litigate their claims, and thus seek, initially, a result contrary to Dowling that will permit them to maintain their respective actions here. If this Court does dismiss due to forum non conveniens, plaintiffs submit, alternatively, that conditions identical to those in Dowling must be imposed to "permit uniformity of decisions within the jurisdiction of this District Court." Mary Doe Pl. Mem. in Supp. at 3. Defendants, on the other hand, seek an unconditional dismissal of both actions.
The doctrine of forum non conveniens permits a court, in its discretion, "to resist the imposition upon its jurisdiction," even though jurisdiction may be lawfully exercised and venue technically proper, where the convenience of the parties and the interests of justice favor dismissal. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839 (1947); Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 527, 91 L. Ed. 1067, 67 S. Ct. 828 (1947). Dismissal is appropriate where "trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). In exercising its discretion, a court is steered by the guideposts established by the Supreme Court in Gilbert, 330 U.S. at 508-09, and reinforced in Piper, 454 U.S. at 241 n.6, that direct a court to examine certain "private interest factors" relating to the convenience of the litigants, and certain "public interest factors" relating to the convenience of the forum and the ends of justice. Gilbert, 330 U.S. at 508-09; Alcoa S. S. Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 150-51 and n.4 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 66 L. Ed. 2d 116, 101 S. Ct. 248 (1980); Monsanto Int'l v. Hanjin Container Lines Ltd., 770 F. Supp. 832, 835 (S.D.N.Y. 1991).
Because the doctrine of forum non conveniens presupposes at least two forums in which the action may proceed, the court must initially determine whether an adequate alternative forum in fact exists. Gilbert, 330 U.S. at 506-07; Piper 454 U.S. at 254 n.22. Once the availability of an alternate forum is established, the court weighs, as a matter within its sound discretion, the pertinent private and public interest factors to assess whether dismissal from the present forum is appropriate. Piper, 454 U.S. at 256; In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F. Supp. 842, 845 (S.D.N.Y. 1986), aff'd as mod'fd by, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871, 98 L. Ed. 2d 150, 108 S. Ct. 199 (1987). Application of the factors enunciated in Gilbert varies depending on the ...