Response to Defendants’ Motion to Dismiss or Stay on Grounds of Forum Non Conveniens

Koresky v. Watson

Description: This brief was filed in California state court in response to a motion filed by the defendants in a fentanyl pain patch case seeking a stay or dismissal of the action under the doctrine of forum non conveneins. The defendants argued that the case should be dismissed or stayed because it involved the death of a Michigan resident that occurred in Michigan allegedly as a result of the patient’s use of a fentanyl pain patch prescribed, purchased and used in Michigan. Under Michigan law, the plaintiff would have had no cause of action because Michigan does not recognize product liability claims against pharmaceutical manufacturers. Plaintiff responded that the defendant that manufactured the patch had its principal place of business in California and actually designed and manufactured the patch in California. Plaintiff argued that the balance of the public and private interest factors favored maintaining the suit in California. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SOLANO
EUGENE KORESKY, LISA CALL , DAVID KORESKY, AND GENENNE MARLARPlaintiff,

v.

WATSON PHARMACEUTICALS, INC., WATSON LABORATORIES, INC., WATSON LABORATORIES, INC., WATSON PHARMA, INC., AND JOHN DOES 1-100

Defendants.

Case No. FCS036583Judge: Hon. Paul BeemanPLAINTIFFS’ OPPOSITION TO DEFENDANTS WATSON PHARMACEUTICALS, INC., WATSON LABORATORIES, INC., AND WATSON PHARMA, INC.’S MOTION TO DISMISS OR STAY ACTION ON GROUND OF FORUM NON CONVENIENS

[Filed concurrently with Declaration of John Chapman]

Complaint filed: 2/23/2010

Date: May 18, 2011

Time: 8:30 a.m.

Dept: 1

TABLE OF CONTENTS

TABLE OF AUTHORITIES. iv

PRELIMINARY STATEMENT. 1

FACTS. 1

A. Lori Koresky’s untimely death. 1

B. The Watson fentanyl patch is at bottom a California product. 2

ARGUMENT & AUTHORITIES. 4

A. Legal Standard. 4E

B. The plaintiff’s choice of forum should rarely be disturbed. 4

C. The private interests do not require that this action be brought in Michigan. 5

1. The location of potential witnesses does not favor a Michigan venue. 5

a. There are a larger number of more critical witnesses in California. 6

b. The California authority cited by Defendants does not suggest that this case should be transferred to Michigan. 8

2. California is presumptively a convenient forum where, as here, two of the defendants have their principal place of business in California. 9

3. Defendants’ claims of inconvenience are disingenuous. 10

D. The public interests do not require that this action be brought in Michigan. 11

1. The fact that Plaintiff’s claims arise from the design and marketing of Defendant’s product in California weigh heavily in favor of California venue. 11

2. The fact that Plaintiff and Decedent were Michigan residents does not negate California’s interest in adjudicating lawsuits involving the wrongful conduct of California corporations. 12

3. California’s interest in deterring wrongful conduct by California corporations weighs heavily in favor of maintaining venue in this Court. 12

4. Plaintiff has not engaged in “forum shopping.”. 13

5. The presence of numerous similar cases before this Court weighs in favor of maintaining venue in California. 14

CONCLUSION & PRAYER.. 14

TABLE OF AUTHORITIES

Cases

Boaz v. Boyle (1995), 40 Cal. App. 4th 700 (1995)……………………………………………………………….. 9

Britton v. Dallas Airmotive, Inc., 153 Cal. App. 4th 127 (2007)……………………………………………… 9

Brown v. Clorox Co. (1976) 56 Cal. App. 3d 306……………………………………………………………… 13

Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 616……………………………………… 16

Credit Lyonnais Bank Nederland v. Manatt (1988) 202 Cal. App. 3d 1424, 1436………………….. 18

Dendy v. MGM Grand Hotels, Inc. (1982), 137 Cal. App. 3d 457. 462………………………………… 18

Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611………………. 8

Great Northern Ry. Co. v. Superior Court (1970) 12 Cal. App. 3d 105, 113–115……………………. 8

Hansen v. Owens-Corning Fiberglas Corp., (1996) 51 Cal.App. 4th 753……………………………… 12

Hurtado v. Superior Court (1974) 11 Cal.3d 574, 583-584…………………………………………………. 16

Morris v. AGFA Corp., (2006) 144 Cal. App. 4th 1452…………………………………………………………. 9

Northrop Corp. v. American Motorists Ins. Co., 220 Cal. App. 3d 1553…………………………………. 9

Outboard Marine Corp. v. Superior Ct. (1976) 59 Cal.App.3d 434……………………………………… 12

Roulier v. Cannondale, (1996) 101 Cal. App. 4th 1180………………………………………………………. 13

Stangvik v. Shiley Inc. (1991) 54 Cal. 3d 744………………………………………………………………………. 8

 

PRELIMINARY STATEMENT

Defendants’ motion should be denied because they have failed to satisfy their heavy burden of showing that California is a seriously inconvenient forum and that the public and private interests weigh in favor of transferring this case to Michigan. First, the convenience of the parties and witnesses do not favor Michigan because a large number of critical witnesses in this case reside in California. Most of these witnesses are employees or former employees of Defendants and were intimately involved in the design, marketing, warnings, and regulatory compliance associated with the Watson fentanyl patch, the product at issue in this case. Moreover, based on the limited discovery to date, it appears that all critical decisions concerning the Watson fentanyl patch are made in California, which is not surprising given that two (2) of the three (3) Defendants who have brought this motion are headquartered in California. Further, the parties’ claims and defenses in this case will primarily depend not on the testimony of residents of Michigan, but on live testimony elicited from expert-witnesses that have been retained by both parties; in fact, it is highly unlikely that the testimony of no more than a handful of Michigan residents, if any, will be introduced at trial. There are also likely large numbers of documents located in California that pertain to the design, distribution, and regulatory oversight of the Watson patch.

Moreover, the public interest considerations favor California. California has a clear and powerful interest in holding defendants to account for wrongful conduct committed within its borders. The product at issue in this case was designed in California, the warnings that accompanied it were created in California, customers are directed to contact “the Customer Service number into Corona,” and all regulatory compliance, including investigations into defective patches, is conducted in California. Indeed, the product itself is stamped with “Corona, California” on both the package and its labeling. Considering the strong ties of this case to California and the state interest in deterring negligent conduct within its borders, trial in California would not operate to overburden the court system or the jury.

FACTS

A. Lori Koresky’s untimely death.

Lori Koresky was prescribed 50 mcg/hr Watson fentanyl patches for her severe and chronic pain. She died on March 3, 2008. After her death, an autopsy was performed. Toxicology tests revealed that she had an elevated level of fentanyl of 9.9 ng/mL, and the medical examiner concluded that the cause of death was “intoxication by fentanyl.” (Declaration of John Chapman Decl. (“Chapman Decl.”) at ¶ 2, Ex. 2.) The patch Ms. Koresky was wearing at the time she died was designed, manufactured, and distributed by Defendants.

Fentanyl is a powerful opioid that has proven lethal at levels as low as 3.0 ng/mL and the fatal level of fentanyl averages 8.3 ng/mL. (Id. ¶ 3.) The package insert accompanying the patch worn by Ms. Koresky indicates that her blood fentanyl level should not have exceeded 1.4 ng/mL with a standard deviation of .5 ng/mL. (Id. ¶ 4.) In other words, Ms. Koresky’s level of fentanyl was seven times higher than it should have been had his patch functioned properly.

B. The Watson fentanyl patch is at bottom a California product.

The Watson fentanyl patch is a generic prescription drug. (Declaration of Janie Gwinn ¶ 4, Chapman Decl. Ex. 3).) Thus, it cannot be sold by any Watson entity unless Watson first obtains regulatory approval from the FDA. Watson Laboratories, Inc. (“WLI-California”), based in Corona CA,[1] developed the Watson patch and obtained the regulatory approval from the FDA that allows Defendants to sell it. In March 2003, Margaret Choy, the Director of Regulatory Affairs for WLI-California, sent a request to the FDA for the “drug release parameters” that would be required for Watson to develop a generic fentanyl patch. (See Letter from Margaret Choy dated March 21, 2003 (Chapman Decl. Ex. 4).) [REDACTED ] In response to this request, the FDA sent a letter to WLI-California setting forth all of the requirements that WLI-California would be required to meet in order to obtain FDA approval to sell the Watson patch. (See Letter from FDA Office of Generic Drugs to WLI-California dated May 6, 2003 (Chapman Decl. Ex. 5.) Then, as documented in correspondence between the FDA and WLI-California’s officers and employees located in California, WLI-California submitted an Abbreviated New Drug Application and many amendments thereto to the FDA over a four-year period.[2] This correspondence shows that WLI-California was primarily responsible for all of the testing and studies that had to be completed to obtain FDA approval for the Watson patch. (See id.) This correspondence also demonstrates that WLI-California was responsible for the development of the warnings and product labeling accompanying the Watson patch. (See id.) Ultimately, the FDA approved WLI-California’s ANDA, which allows WLI-California to sell the Watson patch in the United States. (Declaration of Janie Gwinn ¶ 4 (Chapman Decl. Ex. 3).)

While the Watson patch is manufactured at a facility in Salt Lake City, Utah by a sister company of WLI-California, every Watson patch sold has the words “Corona, California” on both the package and its labeling. (Gwinn Decl. ¶ 6 (Chapman Decl. Ex. 3).) And Watson Patch customers are instructed to call “the Customer Service number into Corona” California. (See Watson internal communication dated February, 26, 2008 regarding contact with FDA concerning customer service number (Chapman Decl. Ex. 15).) Moreover, WLI-California conducts all regulatory REDACTED the Watson Patch out of its Corona, California office. (Id.) As part of this regulatory compliance, WLI-California deals with FDA inquiries into the manufacturing issues and problems with the Watson Patch. For instance, in November 2008, WLI-California, sent a letter to the FDA addressing some FDA concerns related to leaking or defective Watson fentanyl patches. (See November 2008 Letter from WLI-California to FDA (Chapman Decl. Ex. 7).) If WLI-California did not perform this critical regulatory function on behalf of WLI-Delaware, no Watson patches could be sold in California or anywhere else in the United States.

Watson Pharmaceuticals, Inc. (“WPI) is the parent company of both WLI-California and is itself headquartered in California, also carries on critical functions with regard to the Watson patch. Since, August 20, 2007, when the ANDA was approved, WPI has overseen no fewer than three (3) separate recalls of Watson fentanyl patches. Two (2) of these recalls were initiated because Defendants had distributed defective patches that risked leaking fentanyl directly onto the patient’s skin instead of being delivered through the rate-control membrane. (See Chapman Decl., Exs. 8.) Moreover, it was WPI and WLI-California employees that participated in a meeting with FDA about the safety of the reservoir design utilized in the Watson patch. (Chapman Decl., Ex. 9.) reREDACTED

ARGUMENT & AUTHORITIES

A. The legal standard.

Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. Stangvik v. Shiley Inc. (1991) 54 Cal. 3d 744, 751. This doctrine has been codified in under Code of Civil Procedure § 410.30. Section 410.30 provides that when a court “finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action.” Code Civ. Proc. § 410.30.

A trial court’s analysis of an inconvenient forum motion proceeds in two steps. Initially, the court determines whether a suitable alternative forum exists outside California. If one does, then the court considers the private interest of the litigants and the interest of the public in retaining the action in California. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive—such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” Id; see also Great Northern Ry. Co. v. Superior Court (1970) 12 Cal. App. 3d 105, 113–115. The moving party bears the heavy burden of proving that “California is a seriously inconvenient forum.” Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611 (emphasis added).

B. The plaintiff’s choice of forum should rarely be disturbed.

Further, notwithstanding Defendants’ suggestion to the contrary, the plaintiff’s choice of forum is entitled to great weight—even if the plaintiff is a nonresident. Hansen v. Owens-Corning Fiberglas Corp., (1996) 51 Cal.App. 4th 753, 760 (“Case law adheres to the principle that the plaintiff’s choice of forum is entitled to great weight even though the plaintiff is a nonresident. [U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”); Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 610 (“it remains the case in this state that the plaintiff’s choice of forum is entitled to great weight even though the plaintiff is a nonresident.”); Brown v. Clorox Co. (1976) 56 Cal. App. 3d 306, 311 (“It is recognized that a plaintiff’s choice of forum should not be disturbed except for weighty reasons”).

Defendants cite Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744 for the proposition that a plaintiff’s choice of forum is entitled to deference only if the plaintiff is a California resident. While the California Supreme Court in Stangvik Court did note in dicta that there appeared to be some illogic in affording great deference to a nonresident plaintiff’s choice of forum, it also declined to state a different rule, noting that this would be inconsistent with Piper Aircraft Co. and other United States Supreme Court cases. Stangvik, supra, 54 Cal. 3d at 755, fn. 7. The only pertinent holding in Stangvik is that a foreign, noncitizen plaintiff’s choice of forum is entitled to less deference than that of a citizen plaintiff.[3] Id. at 753; Ford Motor Co. supra, 35 Cal. App. 4th at 610.

C. The private interests do not require that this action be brought in Michigan.

 

1. The location of potential witnesses does not favor a Michigan venue.

The “private” factors to be considered are the relative convenience of the alternative forum, the disadvantages to the parties of each forum, the inconvenience to witnesses in either forum, the relative expense of pursuing the case in each forum, the relative ease of access to sources of proof, the availability of compulsory process for witnesses, the relative advantages and obstacles to a fair trial, the inconvenience of presenting testimony by deposition, and other practical considerations making trial inexpensive and expeditious. Northrop Corp. v. American Motorists Ins. Co., 220 Cal. App. 3d at p. 1560, fn. 3. An analysis of these factors shows that they do not weigh sufficiently in favor of the Defendants such as to override the Plaintiff’s choice of forum in California.

a. There are a larger number of more critical witnesses in California.

The patch was designed in California, the contents of the label and warnings were created in California, all regulatory compliance is conducted California, and it appears that high level decisions about the patches are made in California. It should come as no surprise then that Plaintiffs have identified from the documents produced to date, and intend to depose, the following current and former employees of WLI-California and WPI, all of whom appear to be California residents: Patrick Brunner (senior V.P. Manufacturing Operations at WPI); Janie Gwinn, (Director of Regulatory Affairs at WLI-California); Dr. Francois Menrard (Sr. VP, Generics Division); Gary Kozloski (Vice President, Medical Affairs at WPI); Julie Hoegi (Executive Director, Global Pharmacovigilance at WLI-California); Chau Doan (Manager, Drug Safety); Morad Mahgerften (Associate Director, Regulatory Affairs Operations at WLI-California); Virginia Fojas (Associate Director at WLI-California); LaDonna Webb (Drug Safety Associate at WLI-California); Teddi Angene (Drug Safety/CQA Associate at WLI-California); Jacinda Gravem (Drug Safety/CQA Associate at WLI-California); Ernie Lengle (position unknown); Mary Ellen O’Banion (Manager, Drug Safety); Thomas R. Russilo, Executive Vice President, Global Generics at WPI); Jeff Nornhold (Vice-President, WPI); and Michael Strohmeier (position unknown). All of these witnesses appear to have critical information in support of Plaintiffs’ claims.

For example, in similar fentanyl-patch litigation, Defendants have designated as corporate representatives Julie Hoegi, Executive Director of Global Pharmacovigilance at WLI-California, and Janie Gwinn, Director of Regulatory Affairs at WLI-California. These two witnesses have been designated to speak to many critical issues including the design of the Watson patch, the labeling and warnings that accompany the patch, Defendants’ knowledge of defects in patches released into the marketplace, the marketing of the patch, studies and drug trials related to the patch, the bioequivalence of the patch, communications with the F.D.A concerning the patch, reports of deaths occurring while a person was the using the patch, communications with doctors concerning the patch, and the division of responsibilities among Defendants with regard to all aspects of the patch. (See Chapman Decl., Exs. 10 and 11.) Moreover, Ms. Hoegi is the author of several crucial documents including a Health Hazard Analysis dated REDACTED in which she found that there is a health hazard to the general public posed by leaking Watson fentanyl patches—a key admission that is consistent with Plaintiffs’ theory of liability in this case. (Chapman Decl., Ex. 12.)

Taken together, there are at least sixteen (16) witnesses in California that can offer testimony about the design, labeling, regulatory oversight, and recalls of the Watson fentanyl patches. (Id.) And this is only the beginning; not a single deposition has occurred yet in this case and it is likely that Plaintiffs will learn the identity of even more California witnesses to depose. While Defendants may assert that there are a number of Watson witnesses located in Utah who can REDACTED manufacturing and inspection processes, it is clear from the documents produced to date that all high level decisions concerning these issues are made in California by witnesses located there. (See, e.g., November 29, 2007, e-mail between WPI and WLI-Calironia employees about whether to continue distributing Watson fentanyl patches in light of field alert for leaking fentanyl patches. (Chapman Decl., Ex. 13).)

Ignoring these numerous California witnesses, Defendants focus instead on the handful of Michigan residents whom they contend are crucial witnesses in this case. Yet, these persons are composed almost exclusively of decedent’s former treating physicians, those who discovered Ms. Koresky’s body, and first responders to the scene. In spite of Defendants’ claims of the importance of their testimony, the reality is this: these are complex pharmaceutical products liability cases which are primarily dependent upon the Plaintiffs’ and Defendants’ use of expert witness testimony regarding pharmacology, clinical and forensic pathology, toxicology, transdermal science, drug warnings, and manufacturing practices. In short, the claims and defenses in this case will be developed (for the most part) by the respective parties’ use of numerous retained experts—every single one of whom will travel to testify live no matter where the case is tried. (Chapman Decl. ¶ 16.) This fact undermines Defendants’ assertion that the balance of private interest factors favors venue in Michigan. See, e.g., Northrop Corp. v. Am. Motorists Ins. Co., 220 Cal. App. 3d 1553, 1565 (“the retained experts appear to be the primary sources of knowledge and opinion about the effects of the TCA spill, and such individuals presumably are professionally suited to travel to testify.”).

 

b. The California authority cited by Defendants does not suggest that this case should be transferred to Michigan.

 

For instance, Defendants rely heavily on the California Supreme Court’s decision in Stangvik v. Shiley. In that case, however, the plaintiffs were not from a different state, but from entirely different countries (Sweden and Norway)—“separated by an ocean and a continent” from the California defendant. Stangvik, supra, 54 Cal. 3d at 761. Under the circumstances, the Stangvik Court was sympathetic to the means by which “Scandinavian medical witnesses and others whose medical testimony might be important will attend the trial in California.” Id. at 762-63. Such concerns are not warranted in this case.

Outboard Marine Corp. v. Superior Ct. (1976) 59 Cal.App.3d 434 is also easily distinguished. (Motion at 8.) In that case, the plaintiffs, residents of Wyoming, sued the manufacturer of a vehicle built in Nebraska and Wisconsin which was subsequently involved in a fatal accident in Wyoming. Plaintiffs sued several parties, including one “nominal” California defendant who had no “knowledge of the facts and circumstances surrounding the accident and was not involved in any way with the design, research, development, or manufacture” of the subject vehicle. Id. at 436. The only other connection to California was the residence of plaintiffs’ counsel and one expert witness. The Plaintiff in this case does not share such tenuous connections to California as did the plaintiffs in Outboard Marine.

Nor can Defendants meaningfully rely upon Hansen v. Owens-Corning Fiberglas Corp., (1996) 51 Cal.App. 4th 753. The plaintiff in that case originally filed a personal injury action against an insulation manufacturer and 199 other defendants for injuries sustained as a result of many years of exposure to asbestos. Only one of the two hundred defendants, however, was a resident of California, and thus it was virtually certain that all of the witnesses that were to likely testify at trial—including the doctors who treated the decedent’s mesothelioma and the plaintiff’s numerous co-workers—lived outside California. Hansen, 51 Cal. App. 4th at 756-57, 759-60. Again, that is not the case here.

Finally, Defendants’ reliance on Boaz v. Boyle & Co. (1995), 40 Cal. App. 4th 700, 713-14 is misplaced. (Motion at 12.) There the torts at issue had “nothing to do with California,” and the Court found that “California was chosen for no other reason than it was believed to be hospitable to the theories appellants want to advance.” 40 Cal. App. 4th at 713-14. In contrast to the situation in Boaz, the majority of events forming the basis for Plaintiffs’ claims occurred in California, including the design and manufacture of the product, as well as the creation of the warnings that accompanied the product.

In contrast to the cases cited by Defendants, Roulier v. Cannondale, (1996) 101 Cal. App. 4th 1180 is instructive. In that case, a Swiss resident purchased a bicycle from the Defendant and was seriously injured while riding it in Switzerland. Plaintiff filed suit in Los Angeles Superior Court alleging causes of action for strict product liability, negligent product liability, and breach of warranty. He named Cannondale as a defendant and alleged that the bicycle contained design or manufacturing defects that caused his accident. Citing Stangvik, the Defendants moved to dismiss on grounds of forum non conveniens. The Court rejected Defendants’ analysis and concluded that the balance of “private interest” factors did not favor dismissal:

There are relevant witnesses and documents available in both Switzerland and California. [E]xpert witnesses and documents regarding the design, production, testing, warranty, and sale of the bicycle are in California or may be compelled to testify or to be produced here. [Plaintiff] has provided defendants his medical records [and] made himself available for medical examination here. Defendants point out that the surviving percipient witness, the treating physicians, and the medical records are in Switzerland. But, as we have seen, plaintiff has suggested an efficient method for making that evidence available for trial in California. The private factors weigh in favor of trial in California.

See also, Ford Motor Co., supra, 35 Cal. App. 4th at 617 (“It is the convenience of defendants which is at issue. Plaintiff selected this forum and, therefore, presumably is willing to bear any added inconvenience and expense in producing witnesses and documents here.”); Brown v. Clorox Co. (1976) 56 Cal. App. 3d 306 (Washington parents of a child injured when after swallowing drain cleaner filed a products liability action in California. The drain cleaner was purchased in Washington, the injury occurred there, and all medical treatment was rendered there. The Court of Appeal reversed the trial court’s order staying the action in California in favor of Washington as an abuse of discretion.).

2. California is presumptively a convenient forum where, as here, two of the defendants have their principal place of business in California.

 

If a corporation is the defendant, the place where its principal place of business is located is presumptively a convenient forum. Stangvik, supra, 54 Cal. 3d at 755 (“a presumption of convenience to defendants arises from the fact that Shiley is incorporated in California and has its principal place of business here.”). As one court has stated:

It is recognized that a plaintiff’s choice of forum should not be disturbed except for weighty reasons, that in the ordinary case there is more than one forum available to a plaintiff all of which are appropriate, and that one of such appropriate forums in the case of a corporate defendant is the state of its incorporation or principal place of business.

Brown, supra, 56 Cal. App. 3d at 311.

In the instant case, it is unquestioned that Defendants WLI-California and WPI have their headquarters in California. As such, California is presumptively a convenient forum. Resident defendants like these may only overcome the presumption of convenience by presenting evidence that California is a “seriously inconvenient” forum, not merely by establishing that Michigan would be more convenient. Ford, supra, 35 Cal. App. 4th at 611 (“the inquiry is not whether Michigan provides a better forum than does California, but whether California is a seriously inconvenient forum.”). Defendants in this case can make no such showing.

Moreover, this is not a case where the principal place of business of a party has little bearing on the facts of the case. California is not only the corporate home of WPI and WLI-California, it is the state in which all high level decisions concerning the Watson fentanyl patch appear to be made; it is the state in which the product was designed, it is the state in which the contents of the warnings that accompany the product were created; and it is the state in which all regulatory compliance associated with the product is carried on. Plaintiffs’ claims for strict products liability, design defect, and warnings defect are thus all focused on activity that occurred in California. Under these circumstances, it is surprising that Defendants would make the claim that Plaintiffs’ claims “have no connection to California.” (Motion at 11.) Where, as here, a plaintiff has chosen as her forum the defendant’s home state, it is entirely proper to maintain venue in the location chosen by the plaintiff. As the California Supreme Court has stated, “it is not unfair to a defendant to hold the trial in the state where a substantial part of the wrongful conduct was committed.” Stangvik, supra, 54 Cal. App. 3d at 761.

3. Defendants’ claims of inconvenience are disingenuous.

Finally, Defendants’ claim that the private interest factors mandate the case be pursued in Michigan is belied by their conduct in other cases. Defendants point out that the undersigned are lead counsel in at least thirteen (13) similar suits on behalf of non-resident plaintiffs that are now pending in Solano County. (Motion at 13.) Despite claiming that any case where the Decedent dies outside California should be tried in that state, Defendants have filed a motion to dismiss for forum non conveniens in only this case. The reason is obvious: it is undisputed that Michigan law provides manufacturers of prescription drugs an absolute defense to a products liability claim when their drug was approved by the FDA.

It thus appears that the only time Defendants are “inconvenienced” by litigating claims in California involving out-of-state deaths is when the law of the state in which the deaths occurred provides Defendants with a major strategic advantage. Defendants’ claims of inconvenience should be seen for what they really are: an attempt to forum shop by seeking to force litigation in a state in which they perceive some tactical legal advantage while being content to litigate in California more than twelve (12) other cases involving out-of-state deaths. In light of these facts and the applicable law, the Defendants simply cannot show that a balance of the “private” factors weigh sufficiently in favor of the Defendants such as to override the Plaintiff’s choice of forum in California.

D. The public interests do not require that this action be brought in Michigan.

 

Defendants are also incapable of showing that the “public” factors weigh in favor of Michigan. As noted above, these factors include: avoidance of overburdening local courts with congested calendars; protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern; and weighing the competing interests of California and the alternate jurisdiction in the litigation. Stangvik, supra, 54 Cal. 3d at 751.

1. The fact that Plaintiff’s claims arise from the design and marketing of Defendant’s product in California weigh heavily in favor of California venue.

Defendants’ suggestion that these factors favor venue in Michigan because this case has only the most limited connection to California is misleading. Where, as here, an allegedly defective product was designed and sold in California, it cannot be said that maintaining venue in California would place a disproportionate or unfair burden on its courts or jurors:

In the case before us, the relationship of the respondents to this state, and the activities of those respondents in the manufacturing, processing, packaging, labeling, distributing and selling of products in this state and sending those products from this state to other states, does not lead to a conclusion that prosecution of this action in this state would ‘place a burden on the courts of this state which is unfair, inequitable or disproportionate.’

Brown, supra, 56 Cal. App. 3d at 391. This same conclusion was reached by the California Supreme Court in Stangvik:

Another aspect of defendants’ connection with this state is that alleged wrongful conduct was committed here, and there is a close connection between such conduct and plaintiffs’ causes of action. We agree with plaintiffs that defendants’ cumulative connection with California is an appropriate matter for consideration in deciding a forum non conveniens motion.

Stangvik, supra, 54 Cal. 3d at 760. In short, it is not unfairly burdensome for California to hear this case.

2. The fact that Plaintiff and Decedent were Michigan residents does not negate California’s interest in adjudicating lawsuits involving the wrongful conduct of California corporations.

 

Defendants seek to counter the foregoing authorities by repeatedly emphasizing that Plaintiff and Decedent in the instant case were residents of Michigan rather than California. But this argument obscures the fact that the same defective product on which this lawsuit is based has killed several California residents as well; Defendants do not dispute that there have been other lawsuits in this state involving the wrongful death of California residents allegedly caused by Defendants’ fentanyl patches. Even when the victims of a California corporation’s wrongdoing are non-residents, California has a keen interest in adjudicating the claims. See, e.g., Stangvik, supra, 54 Cal. 3d at 563, n. 9 (noting “California’s interest in deciding actions against resident corporations whose conduct in this state causes injury to persons in other jurisdictions.”)

3. California’s interest in deterring wrongful conduct by California corporations weighs heavily in favor of maintaining venue in this Court.

 

California courts, including the California Supreme Court, have expressly held that “the jurisdiction’s interest in deterring future wrongful conduct of the defendant will usually favor retention of the action if the defendant is a resident of the forum. . . . .” Stangvik, supra, 54 Cal. 3d at 753, n.4; see also Hurtado v. Superior Court (1974) 11 Cal.3d 574, 583-584 (“[T]he creation of wrongful death actions is not concerned solely with plaintiffs. As to defendants, the state interest in creating wrongful death actions is to deter [the] kind of conduct within its borders which wrongfully takes life.”); Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 616 (“[T]he [lower] court simply erred in stating California has no interest in providing nonresident plaintiffs greater protection than their home states provide. California’s more favorable laws may properly apply to benefit nonresident plaintiffs.”). Defendants, however, claim that this interest can be protected by the prosecution of a handful of other cases in California involving California decedents and plaintiffs. (Motion at 12.) But this argument ignores the fact that California’s “interest” is to deter negligent conduct by California manufacturers and that the “likelihood of a substantial recovery against such a manufacturer strengthens the deterrent effect.” Stangvik, supra, 54 Cal. 3d at 759. Obviously, the more cases maintained in California against a negligent California manufacturer such as Alza, the greater the potential deterrent effect.

Defendants’ argument also ignores the fact that the few cases taking such an analytical approach have done so when there were literally hundreds of other cases pending in California that could properly serve as a deterrent to a California corporation’s wrongful conduct. See Stangvik, supra, 54 Cal. 3d 744 (235 other cases involving the same product defect already filed in California); Hansen, 51 Cal.App. 4th 753 (California courts already inundated with asbestos litigation). While there are a handful of other lawsuits involving the same defendants that are filed in California, they nowhere near approach the numbers as seen in the authorities cited above. Considering Alza’s connection to his state and the relatively small number of cases against these defendants in California, the additional deterrence that would result if the Defendants were called to account for their wrongful conduct in California would be significant. Clearly, the public interest factors do not favor litigating this matter in Michigan.

4. Plaintiff has not engaged in “forum shopping.”

Defendants argue that allowing this suit to proceed in California would encourage forum shopping. But suing a California corporation in its place of residence and incorporation can hardly be called forum shopping. See, e.g., Stangvik, 54 Cal. 3d at 760 (“a presumption of convenience to defendants arises from the fact that Shiley is incorporated in California and has its principal place of business here.”). This is especially true where, as here, the wrongful conduct of the California corporation – the design and marketing of a defective product – also occurred in California. See, e.g., Stangvik, supra, 54 Cal. App. 3d at 761 (“it is not unfair to a defendant to hold the trial in the state where a substantial part of the wrongful conduct was committed.”). Defendants’ allegation of forum shopping is simply meritless.

5. The presence of numerous similar cases before this Court weighs in favor of maintaining venue in California.

Finally, the presence of numerous similar cases before this Court and others in California weighs in favor of maintaining venue in this state. As set forth in Defendants’ motion, there are thirteen (13) cases currently pending in Solano County that are similar to the instant case. Each of these cases involves a wrongful death caused by a defective fentanyl patch designed, manufactured and marketed by Defendants. One of the questions relevant to a forum non conveniens analysis is “which forum will best serve the interests of judicial efficiency.” Credit Lyonnais Bank Nederland v. Manatt (1988) 202 Cal. App. 3d 1424, 1436; Dendy v. MGM Grand Hotels, Inc. (1982), 137 Cal. App. 3d 457. 462 (court granted forum non conveniens motion in part because of presence of numerous similar suits pending in Nevada). Obviously there is significant judicial efficiency in maintaining this case in a venue where other similar cases are pending. This Court’s experience in other related cases against these same Defendants involving the same product provide it with a degree of familiarity with the legal and factual issues present in these cases that would be lacking in a Michigan court handling a single case. Moreover, the presence of numerous similar cases before this Court will protect the parties against inconsistent results, allow for streamlined discovery and provide a level of efficiency to the Court and the parties that would not exist in a Michigan court.

CONCLUSION & PRAYER

WHEREFORE Plaintiffs respectfully pray that the Court deny Defendants’ Motion to Dismiss or Stay on Grounds of Forum Non Conveniens and grant them such other and further relief to which they may show themselves to be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)


[1] Gwinn Decl. ¶ 3 (Chapman Decl. Ex. 3).

 

[2] See Compendium Exhibit of Correspondence between WLI-California and the FDA between 2003-2007 (Chapman Decl. Ex. 6). Redacted is but a small, limited sample of the back and forth between WLI-California and the FDA as WLI-California sought approval to sell the patch.

[3] Defendants also misstate California law when they cite without any explanation to four (4) decisions by the Courts of Appeal of California and suggest that there is a trend that a non-resident’s choice of forum is entitled to little or no deference. (Motion at 4 n.2 (citing Boaz v. Boyle (1995), 40 Cal. App. 4th 700 (1995); Britton v. Dallas Airmotive, Inc., (2007) 153 Cal. App. 4th 127, 131-35; Hansen v. Owns-Corning Fibreglass Corp., (1996) 51 Cal. App. 4th 753; Morris v. AGFA Corp., (2006) 144 Cal. App. 4th 1452.) None of these cases suggest that a non-resident’s choice of forum is entitled to less deference than a resident’s. Moreover, none of the cases are analogous to this case, as they all involved factual circumstances with far less connection to California than the present case. Indeed, Plaintiffs cannot even discern the relevance of Britton v. Dallas Airmotive, Inc., 153 Cal. App. 4th 127, 131-35 (2007), as that case involved the question of the timeliness of asserting forum non conveniens motion under California Code of Civil Procedure § 418.10. The residency of the plaintiff had no bearing on the resolution of the case.