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IN RE REZULIN PRODUCT LIABILITY LITIGATION

August 7, 2002

IN RE REZULIN PRODUCTS LIABILITY LITIGATION.


The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Defendants move to dismiss this action on the ground of forum non conveniens in favor of litigation in Canada.

The False and Misleading Fact Sheet

In an affidavit in response to defendants' forum non conveniens motion, the plaintiff has a whole new story. He now claims that he lived in San Diego in 1997-98, that he was treated there by a Dr. Dinenberg (whose existence was not disclosed on the fact sheet), that Rezulin was prescribed by another San Diego doctor, that the prescription was filed in a San Diego pharmacy, and that his wife has lived in New York City for about five years.

Such blatant inconsistencies warrant consideration of sanctions against the plaintiff, the attorney responsible for preparing the fact sheet, the attorney who prepared the affadavit, or all three, and the Court will entertain such an application should defendants care to make it. Nevertheless, it now proceeds to consider the motion to dismiss on the record, such as it is, now before it.

The Facts

Notwithstanding the flat inconsistencies between plaintiffs fact sheet and the affidavit and other materials he has submitted in opposition to this motion, the Court assumes the affidavit and other materials to be correct, as far as they go, for purposes of this motion, save that it will not indulge the belated claim that plaintiff's wife is a New York resident.*fn2 It therefore assumes, in his favor, that plaintiff was in San Diego in 1997-98 where Dr. Fink prescribed Rezulin for him and where plaintiff procured the drug from a local pharmacy. The fact remains, however, that this case has very substantial connections with, and will depend upon evidence located in, Quebec.

Apart from his brief sojourn in San Diego, plaintiff admittedly has resided throughout the relevant period in Quebec. All of the treatment he has received for his alleged liver injuries — including jaundice, hepatitis, and cirrhosis — has been provided by Canadian physicians in Quebec. The only physicians with whom plaintiff has discussed the question whether those alleged injuries are attributable to Rezulin are in Quebec. All of the surgery he has undergone as well as extensive diagnostic studies have been done in Canada.

In sum, this case concerns a claim for alleged injury to a Canadian resident as a result of his ingestion during a brief stay in the United States of a drug prescribed by an American physician where all of the treatment for the allegedly resulting injury has taken place in Canada.

Discussion

A. Alternative Forum

"The first step in a forum non conveniens analysis is for the court to establish the existence of an adequate alternative forum."*fn3 As defendants are amenable to suit in Canada*fn4 and that forum permits litigation of the subject matter of this action, Canada (and Quebec) are a suitable alternative forum.*fn5

Where, as here, there is a suitable alternative forum, the forum non conveniens determination rests on a balancing of public and private interest factors, giving ...


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