The opinion of the court was delivered by: Kaplan, District Judge.
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
At the outset, it is important to note that the principal
plaintiff*fn1 has behaved in an utterly irresponsible manner
and that his actions have complicated and doubtless increased
the cost of this motion. Early in this litigation, the Court
directed each plaintiff to file a Fact Sheet giving many
particulars regarding their locations,
physical condition, alleged injuries, medical providers, and the
like. Plaintiff's fact sheet — preceded by almost 18 single
spaced pages of argumentative objections prepared by his
attorney — began by stating that plaintiff resides in Westmount,
Quebec, and included no information in response to the request
to list all other addresses where he has lived for the last ten
years, thus clearly creating the impression that he has resided
in Quebec for at least ten years. It stated that his wife also
resides in Quebec, that his diabetic condition was diagnosed by
a Montreal doctor, that he took Rezulin from June 1997 until
September 1998 and thus within the period during which he
apparently resided only in Quebec, that every medical provider
who has treated him was in Canada save one physician in
California whom he saw in 1997 for unspecified liver enzyme
abnormalities and who instructed him concerning ingestion of
Rezulin, and that the only pharmacy or drugstore which ever
filled prescriptions for his diabetic condition was in Montreal.
All of this information was stated under penalty of perjury.
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.
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.
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.
"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
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 ...