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MILLER v. BOSTON SCIENTIFIC CORPORATION

August 2, 2005.

AMRAM MILLER and his wife JACQUELINE MILLER, Plaintiffs,
v.
BOSTON SCIENTIFIC CORPORATION, a Massachusetts corporation, WALL STENT and JOHN DOES 1-1000, Defendants.



The opinion of the court was delivered by: HAROLD ACKERMAN, Senior District Judge

OPINION AND ORDER

This matter comes before the Court on a motion to dismiss on forum non conveniens grounds filed by Defendant Boston Scientific Corporation ("Boston Scientific" or "Defendant"). For the reasons outlined below, Defendant's motion is GRANTED subject to the conditions discussed in this Opinion and Order. Background

  Plaintiffs Amram Miller and his wife Jacqueline Miller are Israeli citizens and residents who filed a products liability claim against Boston Scientific, a Delaware corporation with its principal place of business in Massachusetts. On or about January 28, 2002, Plaintiff Amram Miller underwent emergency surgery at Hadassah University Hospital in Jerusalem to repair a blocked colon. (Compl. ¶ 4; Certif. of Edward R. Schreiber, Ex. A at 1.) While performing the surgery, medical staff at Hadassah Hospital employed a "wall stent," which is a prescription medical device "used to prop open an obstructed or narrowed pathway." (Pls.' Br. at 1 n. 1.) Plaintiffs allege that the wall stent perforated Amram Miller's colon. (Compl. ¶¶ 4-5.)

  On February 6, 2004, Plaintiffs filed suit in this Court. In their Complaint, Plaintiffs advanced the following claims: strict products liability (failure to warn); strict products liability (manufacturing and/or design defect); negligence; negligent manufacture; negligence per se; negligent misrepresentation; breach of implied warranty; breach of express warranty; unjust enrichment; loss of consortium on behalf of Jacqueline Miller; wanton disregard; and violation of state statutes. On March 30, 2004, Defendant filed, in lieu of an answer, a motion to dismiss on forum non conveniens grounds. Plaintiffs have opposed Defendant's motion to dismiss, and, in the alternative, have requested that the Court either transfer venue under 28 U.S.C. § 1404(a) to the District of Massachusetts or stay its ruling and grant Plaintiffs leave to file a motion to transfer. On March 8, 2005, counsel for Defendant notified the Court that Plaintiffs had filed suit against Boston Scientific in Israel in order to protect their claim against the statute of limitations. (Letter from David J. Cooner to Court, Mar. 10, 2005.) Analysis

  I. General Principles of Forum Non Conveniens

  Defendant moves for dismissal of Plaintiffs' diversity action on the grounds that Israel offers a more appropriate forum in which to litigate Plaintiffs' products liability claim. Generally, it is not the role of the court to deny a plaintiff his choice of forum where the plaintiff has filed his claim in conformity with statutory and constitutional jurisdictional requirements. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981). The doctrine of forum non conveniens "must be sparingly applied, inasmuch as its application results in the dismissal of a case over which the Court has jurisdiction and would ordinarily have a duty to resolve." Am. Cyanamid Co. v. Picaso-Anstalt, 741 F. Supp. 1150, 1155 (D.N.J. 1990) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).

  The decision of a foreign plaintiff to file suit in a federal court is entitled to some deference, even if some of the events giving rise to the claim occurred outside the territorial boundaries of the United States. Therefore, a foreign plaintiff's decision to pursue such a claim in federal court does not give rise to a presumption in favor of a defendant seeking dismissal on the basis that litigation of the claim would be more appropriate in a foreign court. See Lacey v. Cessna Aircraft Co., 862 F.2d 38, 45-46 (3d Cir. 1988) (Lacey I). Dismissal on the grounds of forum non conveniens is warranted only "when trial in the chosen forum would `establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience,' or when the `chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems.'" Piper, 454 U.S. at 241 (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)). Whether the burden of litigating a plaintiff's claim in the United States is sufficiently heavy to warrant dismissal depends upon a balancing of "`private interest factors' affecting the convenience of the litigants, and . . . `public interest factors' affecting the convenience of the forum." Piper, 454 U.S. at 241 (citing Gulf Oil, 330 U.S. at 508-09 (1947)).

  II. Adequate Alternative Forum

  A. Adequacy of Forum

  Dismissal on the grounds of forum non conveniens presupposes the existence of an adequate alternative forum in which the plaintiff may pursue his claim. Piper, 454 U.S. at 255 n. 22. The court's role in determining the adequacy of the proposed alternative forum is a very limited one; usually, the defendant's amenability to process in the foreign jurisdiction and the existence of a satisfactory remedy there are sufficient to establish the jurisdiction's adequacy. Id. (citing Gilbert, 330 U.S. at 506-07). The burden falls on the defendant to provide evidence that he would be amenable to process in the foreign jurisdiction, and that the foreign jurisdiction would provide plaintiff with an adequate opportunity to obtain redress. Burke v. Quartey, 969 F. Supp. 921, 930 (D.N.J. 1997) (citing Derensis v. Coopers & Lybrand Chartered Accountants, 930 F. Supp. 1003, 1006-07 (D.N.J. 1996)). These threshold questions must be resolved before reaching other stages of the forum non conveniens analysis.

  This Court must first determine whether Defendant is amenable to process in the proposed alternative forum. Defendant states in its brief that it "has a presence in Israel [and] is subject to the jurisdiction of the Israeli courts" (Def.'s Br. at 11), and Plaintiffs do not take issue with this assertion. In order to fulfill its requirement of demonstrating the existence of an adequate alternative forum, Defendant does not have to provide the court with indisputable proof of its amenability to process in Israel. However, if the court is unconvinced on this matter, then it may choose, in its discretion, to safeguard Plaintiffs' right to file suit against Defendant by conditioning dismissal on Defendant's actual consent to process in the foreign jurisdiction. See, e.g., Dahl v. United Techs. Corp., 632 F.2d 1027, 1029 (3d Cir. 1980) (upholding district court's dismissal on forum non conveniens grounds on condition that defendant consent to jurisdiction in Norway); Dawson v. Compagnie Des Bauxites De Guinee, 593 F. Supp. 20, 23-24 (D. Del. 1984); Abiaad v. Gen. Motors Corp., 538 F. Supp. 537, 545 (E.D. Pa. 1982); Harrison v. Wyeth Labs., 510 F. Supp. 1, 9 (E.D. Pa. 1980).

  Next, this Court must ask whether Israel offers an adequate remedy. In determining whether the proposed alternative forum offers an adequate remedy, this Court need not undertake an in-depth analysis of the remedies available to the Plaintiff in the foreign jurisdiction compared with the remedies available in this forum. A remedy is not inadequate merely because it is less favorable to the plaintiff than the remedy available in his chosen forum. Piper, 454 U.S. at 250. In Piper, the Supreme Court rejected plaintiff's argument that the foreign remedy in a products liability case was inadequate because the foreign jurisdiction did not impose strict liability. Id. The Court held that in order for plaintiff's argument to succeed, the foreign remedy must be "so clearly inadequate or unsatisfactory that it is no remedy at all." Id. at 254.

  Defendant here states, and Plaintiffs do not dispute, that "Israeli law recognizes causes of action for personal injury claims." (Def.'s Br. at 12.) Plaintiffs appear to agree that if this case were dismissed, they would have a cause of action in Israel; the essence of Plaintiffs' argument is that they would not have as likely a chance of succeeding if this case were to proceed in Israel because Israeli tort law differs substantively from American tort law. (Pls.' Br. at 21.) However, Plaintiffs do not allege that they would be wholly deprived of a remedy if they pursue their claims in an Israeli court. Therefore, this Court concludes that Plaintiffs have an adequate remedy in Israel.

  B. Necessity of Record Evidence

  Plaintiffs claim that Defendant's motion to dismiss should be denied because Defendant has not proven the existence of an adequate alternative forum through record evidence. Plaintiffs allege that the record in this case does not lend support to Defendant's assurances that Plaintiffs would be able to pursue their claim against Defendant in an Israeli court. For example, Boston Scientific states in its brief that it "has a presence in Israel [and] is subject to the jurisdiction of the Israeli courts," but fails to provide further assurance (e.g., in the form of an affidavit) that such is the case. (See Def.'s Br. at 11.) Furthermore, Defendant cites only a law review article and a few newspaper articles as support for the notion that a plaintiff can even bring a products liability suit against a manufacturer in an Israeli court. (Def.'s Br. at 12.) Although Defendant has informed the Court that Plaintiffs have already filed an action in an Israeli court to preserve the statute of ...


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