Friday, October 26, 2012
Recent Pennsylvania Forum Non Conveniens Wins
If you’re a defendant, you don’t want to be in the Philadelphia Court of Common Pleas – for well-known reasons. One of those reasons is blatant, plaintiff-friendly forum shopping. As ATRA’s latest report states:
Forum Shopping: The Philly Phenomenon
Pennsylvania law provides significant flexibility to plaintiffs’ lawyers as to where to file their cases. For example, Pennsylvania law permits claims against businesses anywhere in the state that they conduct more than incidental or isolated business activity. In a 2009 ruling, a Pennsylvania court candidly acknowledged that “Pennsylvania does not forbid ‘forum shopping’ per se – to the contrary, our venue rules give plaintiffs various choices of different possible venues, and plaintiffs are generally free to ‘shop’ among those forums and choose the one they prefer.” While courts can transfer or dismiss cases “for the convenience of parties and witnesses,” Pennsylvania judges place a heavy burden on the defendant to present detailed information proving that the plaintiff’s choice of court is “oppressive or vexatious.” Such requests are often denied, even when there is little or no connection between the lawsuit and the county in which it is filed.
A couple of recent cases buck this trend, so we thought we’d tell you about them. The most notable case is Stoner v. Penn Kleen, Inc., ___ A.3d ___, 2012 WL 4748204 (Pa. Super. Oct. 5, 2012). One reason it’s notable is that it’s by the Pennsylvania Superior Court, source of most of the pro-plaintiff forum non conveniens rulings (Philly trial judges have repeatedly tried and largely failed to evict the litigation tourists) that ATRA was complaining about in the first place. See Zappala v. James Lewis Group, 982 A.2d 512, 520 (Pa. Super. 2009) – source of the quote in the ATRA piece.
Stoner was – surprise! – a product liability case, but not a drug case; it involved a "pressure washer." The plaintiff, from York County (mostly Amish country rural and conservative) sued a supposed Adams (next to York) County intermediate supplier along with product liability defendants from North Carolina, Minnesota, Arizona, and Denmark. Legally, the suit was bogus – the plaintiff, a junk yard employee allegedly “was injured by an explosion which occurred during the course of his disassembly” of the product. Stoner, 2012 WL 4748204, at *1. Disposal/recycling of a product after it has worn out and been thrown away is not, as a matter of law, an “intended use” of the product under Pennsylvania law. Milesco v. Norfolk Southern Corp., 2010 WL 55331, at *5 (M.D. Pa. Jan. 5, 2010) (“as a matter of law, the recycling of a product after the end of its useful life is not a use of the product reasonably foreseeable to the manufacturer”); U.S. v. Union Corp., 277 F. Supp.2d 478, 493 (E.D. Pa. 2003) (“the dismantling and processing of junk electrical components was not a reasonably foreseeable use”); Kalik v. Allis–Chambers Corp., 658 F. Supp. 631, 635 (W.D. Pa. 1987) (product recycling not an intended/foreseeable use). To maximize its chance of survival, this bogus lawsuit gets filed in Philadelphia, thus sticking Philadelphia taxpayers (such as some of us) with the costs of litigation completely unrelated to Philadelphia.
But not so fast. At the request of the Pennsylvania distributor (not the product manufacturer defendants), a brave Common Pleas judge (unfortunately not acknowledged in the opinion) ordered a transfer to Adams County (where the Battle of Gettysburg was fought). That’s an appealable order, and for once the Superior Court affirmed the transfer:
[Defendant] averred that each of the fact witnesses was located in Adams County, where the accident took place, and that the employees of [defendant] work and reside only in York County. Second, [defendant] presented affidavits and other submissions which established that venue in Philadelphia would not merely be inconvenient to itself and the witnesses, but that it was a substantial burden.
Stoner, 2012 WL 4748204, at *3. That’s good, but before anybody gets to celebrating too much, here’s what those affidavits said:
[Defendant] submitted an affidavit from [its] President . . ., who stated that venue in Philadelphia County would cause him to have to shut down the business during the course of the trial, resulting in loss of income. These statements were corroborated by the affidavits of [defendant’s] employees, who determined that travel to Philadelphia would take in excess of three-and-a-half hours, involve at least 200 roundtrip miles, and impose significant costs. At the same time, these employees noted that travel to Adams County would involve only 31 to 75 miles' travel, and would not involve the same tolls or parking fees.
Id. (emphasis added). While non-Philadelphia corporate defendants could probably adduce similar – or better – travel cost evidence, it’s doubtful that any significant sized business could make the same sort of business shut down argument. So, while Stoner is a useful first step, it in no way gets us out from under all that bad law mentioned by ATRA.
But if a defendant can get the case removed to federal court, then things look up quite a bit.
That’s the lesson of McLaughlin v. Glaxosmithkline, LLC, 2012 WL 4932016 (E.D. Pa. Oct. 17, 2012) (Buckwalter, J.). The plaintiff in McLaughlin was another litigation tourist, this time from outside Pennsylvania – from Louisiana. Another feature that McLaughlin shares with Stoner is that the case is bogus on the merits. The plaintiff took only a generic drug. Oops, Mensing preemption.
So the plaintiff also sued the maker of the bioequivalent branded drug she didn’t take. But that theory’s just about as dead as dead can be in Louisiana. See Stanley v. Wyeth, Inc., 991 So.2d 31, 33-35 (La. App. 2008); Demahy v. Schwarz Pharma, Inc., ___ Fed. Appx. ___, 2012 WL 5261492, at * 3-4 (5th Cir. Oct. 25, 2012); Morris v. Wyeth, Inc., 2011 WL 4975317, at *3-4 (W.D. La. Oct. 19, 2011); Cooper v. Wyeth, Inc., 2010 WL 4318816, at *2-3 (M.D. La. Oct. 26, 2010); Craig v. Pfizer, Inc., 2010 WL 2649545, at *2-4 (Mag. E.D. La. May 26, 2010), adopted, 2010 WL 2649544 (W.D. La. June 29, 2010); Morris v. Wyeth, Inc., 2009 WL 4064103, at *4-6 (W.D. La. Nov. 23, 2009); LeBlanc v. Wyeth, Inc., 2006 WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006); Possa v. Eli Lilly & Co., 2006 WL 6393160, at *1, (M.D. La. May 10, 2006); Tarver v. Wyeth, Inc., 2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL 1517546, at *2-3 (W.D. La. Jan. 26, 2006). So once again, we in Pennsylvania get stuck with having to entertain a litigation . . . in this case more of a “refugee” than a “tourist.”
But like Stoner the plaintiff in McLaughlin got sent packing (back to Louisiana) under the federal forum non conveniens statute, 28 U.S.C. § 1404(a). This time the grounds are more generally applicable. Plaintiff was a Louisiana resident, where all the operative facts occurred, so her choice of an out-of-state forum is entitled to less weight. McLaughlin, 2012 WL 4932016, at *3. The defendant prefers the Louisiana forum even though headquartered in Pennsylvania. Id. The “operative facts” of a products liability action are deemed to occur where the allegedly defective product was used and injury occurred, which was Louisiana. Id. at *4. Witnesses from Louisiana could not be compelled to come to Pennsylvania whereas the defendant’s employees may be subpoenaed to come to Louisiana. Id. In this electronic age, nobody gives a damn any longer about the location of books and records. Id. at *5. There is no difference in the enforceability of a judgment. Id. The location of many witnesses exclusively in Louisiana was a practical consideration supporting transfer. Id. at *6. The per-judge docket in the Western District of Louisiana was a third the burden shouldered by judges in the Eastern District of Pennsylvania. Id. And finally, controversies should be decided where they arise, in this case here Louisiana, and a Louisiana judge will be more familiar with Louisiana law. Id. at *7.
Under those facts, forum non conveniens transfer to Louisiana (and to probable dismissal with prejudice) was granted. Significantly, the facts in McLaughlin are likely to be replicated in just about any litigation tourism case. So if the defendant can get into federal court (often a big “if”) then transfer under the principles set out in McLaughlin is likely to be available.
So, to all you litigation tourists in federal court– see y’all later.