Day on Torts
The Tennessee Court of Appeals recently affirmed a refusal to dismiss a products liability case under the doctrine of forum non conveniens in Pantuso v. Wright Medical Tech. Inc., No. W2014-02135-COA-R9-CV (Tenn. Ct. App. Aug. 31, 2015). Plaintiff in this case was a resident of Utah and had double hip replacement surgery in Utah. The replacement devices used in plaintiff were designed, manufactured and marketed by Wright Medical Technology, a Delaware corporation with its principal place of business in Memphis, Tennessee, who was registered to do business in both Tennessee and Utah. Wright Medical Technology was a wholly owned subsidiary of Wright Medical Group, a Delaware corporation with its principal place of business in Memphis, Tennessee, registered to do business in Tennessee. Both corporations were named as defendants.
According to the complaint, the device implanted into plaintiff was marketed as being suitable for patients with active lifestyles. Six years after the surgery, though, one of the replacement devices failed “suddenly and catastrophically” and had to be replaced. The other device made by Defendant remained in plaintiff, but he alleged that he had to modify his lifestyle based on the knowledge that it would not stand up to the active lifestyle it was marketed towards.
Plaintiff filed a product liability suit in Shelby County Circuit Court, and defendants filed a motion to dismiss pursuant to the doctrine of forum non conveniens. According to defendants, Utah was the proper forum because plaintiff had received all of his medical treatment there. Defendants argued that they would “be prejudiced by proceeding in Tennessee because it would have ‘no access to any third-party witness or any third-party documents because they were all in Utah[.]’” In addition, defendants asserted that Utah was more appropriate because Utah law applied in this case and because the Shelby County courts were already overburdened. In response, plaintiff asserted that Shelby County was a proper forum, as the “crux of his complaint concerned not the medical treatment he received [in Utah], but the decisions made by Wright Medical concerning the manufacture, design, and marketing of the Profemur hip device, all of which occurred at Wright Medical’s Memphis office.” Plaintiff urged that the witnesses relevant to the core issues of the case were located in Tennessee, that the medical providers located in Utah could submit testimony by deposition, and that one of the two defendants was not subject to personal jurisdiction in Utah.
Finding that in either forum one party would be inconvenienced, the trial court denied defendants’ motion to dismiss, noting that it would not be “any more inconvenient for you than it would be for plaintiff if we moved back to Utah.” On appeal, this decision was affirmed.
The Court of Appeals analyzed this case under the Supreme Court’s seminal opinion on forum non conveniens, Zurick v. Inman, 426 S.W.2d 767 (Tenn. 1968). As instructed by the Zurick opinion, the Court looked first at three factors to determine whether forum non conveniens dictated dismissal: (1) whether the court has jurisdiction over the matter; (2) whether there is at least one other available forum where the plaintiff may bring his claim; and (3) the private interests of the litigants, such as the enforceability of a judgment, the ease of access to proof, availability of witnesses, ability to view premises if applicable, and other practical considerations. After weighing these factors, the Court then considered whether any public factors dictated dismissal.
Finding that there was no dispute that Shelby County had jurisdiction over this matter, the Court began by analyzing whether another forum was available. Plaintiff argued that Utah was not available because the statute of limitations had now run and one of the defendants was not subject to personal jurisdiction in Utah. The defendants, in turn, promised to waive statute of limitations and personal jurisdiction defenses if plaintiff refiled in Utah. The Court of Appeals pointed out that In re Bridgestone/Firestone, 138 S.W.3d 202 (Tenn. Ct. App. 2003), was binding precedent on this issue, holding that “defendants’ agreement to waive any jurisdictional and statute of limitations defenses in the alternative forum [is] sufficient to conclude that the forum [is] available.” While noting that the Bridgestone case subsequently experienced protracted procedural difficulty, the Court found itself constrained to follow it, concluding that Utah was an available forum.
The Court next analyzed the private factors at play here, including the ease of access to sources of proof and the “availability of compulsory process for the attendance of unwilling witnesses.” In weighing these factors, the Court considered the view of both parties, not just the party making the motion. Here, the witnesses relevant to the design, manufacture, and marketing of the hip device were all in Tennessee, so moving the litigation to Utah would inconvenience plaintiff, just as bringing medical witnesses in from Utah would inconvenience defendants. “[W]here trials promise to be costly, time-consuming, and difficult for the litigants regardless of whether they are held in Tennessee or another forum, the trial court is within its discretion to conclude that the private factors do not weigh in favor of dismissal[.]” (citation omitted). In addition, no proof would be required regarding premises, so that factor did not support dismissal. The Court also weighed the fact that the defendants were headquartered in Tennessee, stating that “it is indeed unusual to have the native citizen cry forum non conveniens.” (internal citation omitted). In sum, and “given the deference accorded to plaintiff’s choice of forum,” the Court determined that the private factors did not indicate that dismissal was required.
Finally, the Court looked to potential public factors that might weigh in favor of dismissal: (1) whether a Tennessee court will be required to apply another forum’s law; (2) whether the litigation will impose a burden on Tennessee courts or jurors; and (3) “whether another forum has a greater interest in deciding the controversy.” (citing Zurick). Here, while Utah product liability law would apply, defendants had not asserted that such law was materially different from Tennessee law. Further, defendants’ bald assertion with no explanation that this case would overburden Shelby County courts was rejected. Finally, the Court found that plaintiff’s claims had little relation to his medical treatment in Utah and were instead directly related to decisions made in Memphis, causing the State of Tennessee to have an interest in the litigation. Accordingly, both the public and private factors in this case weighed against dismissal for forum non conveniens and the trial court was affirmed.
This was clearly the correct result in this case. As the Court pointed out, a plaintiff’s choice of forum when filing his or her lawsuit deserves deference. Here, plaintiff chose to travel outside of his home state and file in the place where he believed the most relevant witnesses could be found. Plaintiffs are allowed to make strategic decisions as to where they want their claims heard, and absent more extreme circumstances than those presented in this case, plaintiffs’ forum decisions should stand. As the location this plaintiff filed in was clearly related to the litigation, granting defendants’ motion to dismiss would have been unfair and contrary to Tennessee law.