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

Henderson v. Alza

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 Colorado resident that occurred in Colorado allegedly as a result of the patient’s use of a fentanyl pain patch prescribed, purchased and used in Colorado. 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. The court agreed and denied the defendants’ motion. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
TAMMY LYNN HENDERSON, as Surviving Daughter of BONITA SMITH, Deceased, and as Executor of the Estate of BONITA SMITH, Deceased, PERRY TRAVIS RODE, as surviving Son of BONITA SMITH, Deceased,Plaintiffs,v.

ALZA CORPORATION, SANDOZ, INC., and DOES 1 through 1000,

Defendants.

CASE NUMBER: 108CV127817PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STAY ON GROUNDS OF FORUM NON CONVENIENS PER CCP §410.30; DECLARATION OF HELEN ZUKIN; [PROPOSED] ORDER.Date: March 25, 2010
Time: 9:00 a.m.
Dept.: 1

 

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR STAY ON GROUNDS OF FORUM NON CONVENIENS PER CCP § 410.30; DECLARATION OF HELEN ZUKIN; PROPOSED ORDER

Plaintiffs respectfully ask that this court deny Defendants’ ALZA Corporation (“ALZA”) and Sandoz, Inc’s (“Sandoz”) Motion to Dismiss or Stay on Grounds of Forum Non Conveniens for the following reasons:

(a) Defendants’ fail to meet their burden of establishing that California is an inconvenient forum and their reliance on Stangvik v. Shiley is misplaced;

(b) Defendants have not demonstrated that Colorado is a suitable, alternative forum for Plaintiffs’ claims;

(c) The private interest factors favor retaining this case in California;

(d) Defendants fail to provide evidence that public interest factors favor dismissal;

Evidence

Exhibit A: Death Certificate of Bonita Smith, November 28, 2006

Exhibit B: Defendant’s Motion to Dismiss

Exhibit C: Letter from Plaintiffs’ Counsel Rebecca King to Defendants’ Counsel

Rebecca Biernat re: Assistance with Medical Records, December 10, 2009

Exhibit D: Letter from Defendants’ Counsel Rebecca Biernet to Plaintiffs’ Counsel Rebecca King re: Letters of Administration, December 18, 2009

Exhibit E: Plaintiffs’ Amended Complaint, July 2, 2009

Exhibit F: ALZA’s Response to Plaintiffs’ First Set of Requests for Admission

Exhibit G: Printout from Santa Clara Superior Court Database

Exhibit H: El Paso County Coroner’s Autopsy Report of Bonita Smith, November 20, 2006.

I.

Facts

On November 18, 2006 Bonita Smith was tragically found dead in her home by her daughter, Tammy Henderson. Ms. Smith’s untimely death was caused by fentanyl intoxication. See Ex. A. One of ALZA Corporation and Sandoz Inc’s 75 mcg fentanyl patches was found on Bonita Smith’s body at the time of death. The fentanyl patch is a transdermal patch that has a gel which contains the drug fentanyl in it. Fentanyl is an extremely dangerous drug that is at least 80 times stronger than morphine. The patch is applied by the patient and fentanyl is delivered through the patient’s skin. Ms. Smith’s death certificate indicated that her cause of death was “fentanyl intoxication” due to “absorbed fentanyl,” which clearly demonstrates that Ms. Smith’s death was a result of Defendants’ fentanyl patch. Ex. A. Defendants allege that other prescription drugs could have caused Ms. Smith’s death, however, these allegations have no factual basis and are pure conjecture and speculation on behalf of Defendants. Ex. B. at 3. Ms. Smith’s autopsy report revealed a final diagnosis of fentanyl intoxication with a lethal amount of fentanyl discovered in her blood as the sole cause of Ms. Smith’s death. Ex H. The autopsy report makes note of other prescription drugs within her system, but it is especially significant that the coroner did not find that any of these other drugs played any role whatsoever in Ms. Smith’s death. Ex. H.

On November 14, 2008, Plaintiffs commenced this action against Defendant ALZA, the manufacturer of Ms. Smith’s fentanyl patch and Sandoz, the distributor of Ms. Smith’s fentanyl patch. Among other claims, Plaintiffs alleged a manufacturing, design and marketing defect of Ms. Smith’s fentanyl patch. Ex. E. at 6-7. Defendant ALZA is a California corporation with two fentanyl patch manufacturing facilities located in Mountain View, California and Vacaville, California and a principal office in California.

More than a year and a half into this lawsuit, on February 23, 2010, Defendants filed a motion to dismiss on forum non conveniens grounds. A significant amount of written discovery has already been conducted and deposition discovery is currently underway in this case.[1] Additionally, this Court has conducted six case management hearings in this case. Not one deponent has objected to being deposed by defendants and have been very cooperative with the scheduling of these depositions.[2] Likewise, defendants have yet to object to taking any depositions that have been noticed and scheduled in Colorado, including the depositions of the medical examiner, Dr. Robert Bux and decedent’s physician Dr. Bamberger. Both these videotaped depositions were scheduled for April with defendants’ knowledge. Defendants have already deposed Tammy Henderson, Bonita Smith’s daughter. Plaintiffs believe that Defendants will have to depose very few remaining relevant witnesses or physicians in Colorado. However, upon information and belief, Plaintiffs anticipate that ALZA will have many key corporate witnesses who were involved in the manufacturing, designing, testing and subsequent recall of the fentanyl patches, most of whom will be located in California. Despite Defendants’ contention that Ms. Smith’s treating physicians only reside in Colorado, Plaintiffs’ counsel recently received correspondence from Defendants indicating that some of Plaintiffs’ treating physicians also reside in Virginia and California.

II.

Forum Non Conveniens Standard

In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., 58 Cal. App. 4th 408 (Cal. App. 1st Dist. 1997); Rinauro v. Honda Motor Co., 31 Cal. App. 4th 506 (Cal. App. 2d Dist. 1995); Credit Lyonnais Bank Nederland, N.V. v. Manatt, Phelps, Rothenberg & Tunney, 202 Cal.App.3d 1424, 1436 (Cal.App. 2d Dist. 1988). Unless the balance weighs strongly in favor of the defendants, the plaintiff’s choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); Great Northern Ry. Co. v. Superior Court, 12 Cal. App. 3d 105 (Cal.App.1st Dist. 1970). The doctrine of forum non conveniens is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. See Appalachian Ins. Co. v. Superior Court, 162 Cal. App. 3d 427 (Cal.App.2d Dist. 1984). As mentioned above, in this case ALZA is a local defendant and the actions giving rise to this lawsuit, namely the design, manufacture, distribution and recall of the fentanyl patch unequivocally took place in California. As such, Defendant’s motion to dismiss on forum non conveniens grounds is baseless.

Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. See Stangvik v. Shiley, Inc., 54 Cal.3d 744, 751 (Ca. 1991).

III.

Argument

Defendants’ Motion to Dismiss on Forum Non Conveniens

Grounds Should be Denied

 

A. Defendants’ Reliance on Stangvik v. Shiley is Misplaced

Throughout their motion, Defendants’ heavily rely upon the California Supreme Court’s decision in Stangvik v. Shiley, granting a California corporation’s motion to dismiss on forum non conveniens grounds in a products liability case. 54 Cal.3d at 744. Defendants’ reliance upon this case is misplaced. In Stangvik, two foreign plaintiffs from Sweden and Norway brought an action against a heart valve manufacturer in California, and its parent company, a Delaware corporation, alleging negligence, strict liability, breach of warranty, fraud and loss of consortium. Id. Defendants erroneously allege that the primary basis for the Court’s decision to grant dismissal on forum non conveniens grounds was the fact that the witnesses and treating physicians in the case were not located in California. In actuality, the Court based its decision on the basis that Plaintiffs resided in foreign countries and where, “the plaintiff resides in a foreign country, Piper holds that the plaintiff’s choice of forum is much less reasonable.” Id. at 755. Specifically, the Court held that California Courts would be burdened by the numerous and complex actions relating to the heart valves bought by plaintiffs who reside in foreign countries. Id. at 759.

The Courts found two significant factors that weighed in favor of granting the motion to dismiss. First, the court found that there would be a competitive disadvantage to California business “if California manufacturers were called on to defend lawsuits involving extraterritorial injuries.” Id. at 760. Second, the Court cited policy reasons, namely that Sweden and Norway might be threatened by applying American regulation of medical products and liability laws to actions brought by foreign citizens. Clearly, the Court’s primary concerns were the legal and diplomatic complications associated with permitting foreign plaintiffs to bring actions in the United States. Most importantly, the Court made this decision early in the litigation prior to the parties engaging in discovery or depositions.

The facts of the case presently before the Court are markedly different. In Stangvik, there were concerns regarding how the heart valve was handled in a foreign country under foreign regulatory standards. Id. Additionally, there were considerable concerns relating to the transplantation of the valve inside the foreign plaintiffs and the complications associated with medical practices and regulatory standards of foreign countries. Here, none of these issues exist. All treating physicians and witnesses are located within the United States and subject to the same regulatory schemes. In fact, the most relevant depositions have already been taken and scheduled within the next month, including, Plaintiff’s daughter, Tammy Henderson, Plaintiff’s physician Dr. Bamberger and Plaintiff’s medical examiner, Dr. Robert Bux. Additionally, Plaintiff’s counsel has been extremely cooperative with Defendants and has offered to provide them any and all medical records that they have requested. Ex. C; Ex. D. On December 10, 2009, Plaintiffs’ counsel sent Defense counsel Letters of Administration to aide Defendants to obtain all medical records that they would need. See Ex. D. Additionally, all medical records in Plaintiffs’ possession have been provided to Defendants and Plaintiffs have agreed to provide any other records Defendants need. Defendants have yet to demonstrate any bona fide problem obtaining any evidence, including medical records.

B. Colorado is Not a Suitable, Alternative Forum for Plaintiffs’ Claims

Defendants mistakenly claim that Colorado is a suitable alternative forum because a wrongful death and products liability action can be brought there. While Plaintiffs concede that California case law has determined a suitable alternative forum is one in which an “action can be brought.” See Shiley Inc v. Superior Court, 4 Cal.App.4th 126, 132 (Ca. 1992). Plaintiffs object that Colorado is a suitable, alternative forum to this action at this late stage in the litigation. This case was filed in 2008, significant discovery has taken place and this Court has had six case management hearings. Dismissing this case now and forcing Plaintiffs to essentially start over in another state would waste all the time and resources expended by the parties and the Court thus far. Defendants’ sole purpose in filing this motion now, after a year and a half, is to delay the timely resolution of this matter.

Indeed, California Courts have routinely considered the delay in bringing a forum non conveniens motion when deciding whether to grant it. See Britton v. Dallas Airmotive, Inc., 153 Cal. App. 4th 127, 135 (Cal. App. 1st Dist. 2007) (“We hasten to add that our interpretation of sections 418.10 and 410.30 does not mean that defendants can unreasonably delay bringing forum non conveniens motions with impunity; any delay would be relevant to whether the motion should be granted.”); Roulier v. Cannondale, 101 Cal. App. 4th 1180, 1191 (Cal. App. 2d Dist. 2002) (considering the fact that Defendants waited nine months to bring the action that could have been brought based on the allegations within the Plaintiff’s complaint.); Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 614 (3d Cir. Del. 1991) (“Motions to dismiss based on forum non conveniens usually should be decided at an early stage in the litigation, so that the parties will not waste resources on discovery and trial preparation in a forum that will later decline to exercise its jurisdiction over the case.”). All of the facts that Defendants cite in their motion are facts that were known to them early in the litigation through either the Complaint itself or through discovery.

C. The Private Interest Factors Favor Retaining this Case in California

The “private interest” factors in a forum non conveniens analysis include: (1) the ease of access of proof; (2) availability and cost of obtaining witnesses; (3) possibility of harassment of defendant in litigation in an inconvenient forum; (4) the enforceability of the judgment. See Goodwine v. Superior Court of Los Angeles County, 63 Cal. 2d 481 (Cal. 1965).

Within their motion, Defendants make inaccurate allegations regarding their inability to depose or obtain trial testimony of “crucial witnesses” such as Defendant’s prescribing physician, Dr. Bamberger, Defendant’s medical examiner, Dr. Robert Bux, “other treating physicians” and “family members and friends of decedent” given their location in Colorado. Plaintiffs’ counsel is particularly perplexed by these statements given the fact that Defendants have already deposed Tammy Henderson, Plaintiff’s daughter and a key witness in the case and Dr. Bamberger and Dr. Bux are scheduled for depositions next month. Plaintiffs have represented that they will make Plaintiff Travis Rhode available for deposition as well. To Plaintiffs knowledge, Defendants have not sought additional depositions.

Defendants have not identified the family members and friends of the decedent or the decedent’s other treating physicians who they would like to depose. Defendants have communicated to Plaintiffs’ counsel that several of Plaintiff’s treating physicians are also located in California and Virginia demonstrating that not “all” Plaintiffs’ treating physicians are located in Colorado as Defendants contend. Regardless of the location of Plaintiffs’ treating physicians, Plaintiffs’ counsel is ready, willing and able to help facilitate the scheduling of those depositions. Thus far, Defendants have not had to subpoena a single witness and have not, to counsel’s knowledge, incurred any costs in procuring witnesses. As mentioned above, Plaintiffs’ counsel has also communicated to Defendants’ counsel that she will aide them in retaining any and all requested medical records. Ex. C; Ex. D. Upon information and belief, Defendants have obtained every single one of Plaintiffs’ relevant medical records.

The case presently before the Court is a manufacturing and design defect case as Plaintiffs indicated in their Complaint. See Ex. E. Defendants admitted that ALZA has a principal office in California and that the “Sandoz Fentanyl Transdermal System” was manufactured in Vacaville, California. See Ex. F. at 7, 12.[3] The crux of Plaintiffs’ arguments relate to the manufacturing, marketing and design systems for fentanyl patches in place at ALZA’s Vacaville facility. As a result, Plaintiffs anticipate that all relevant manufacturing, design and corporate witnesses involved in the recall of the fentanyl patches will be located in California. Moreover, given Defendants’ objections to virtually every single discovery request served upon them, Plaintiffs believe that it would be very difficult and perhaps impossible to compel the depositions or trial attendance of ALZA’s corporate witnesses if the case is moved to Colorado. The availability of these corporate witnesses is paramount to Plaintiffs’ ability to prove their case.

Defendants cite automobile personal injury cases and products liability cases in which the witnesses to the Plaintiff’s injury and the Plaintiff’s physicians were located in a jurisdiction other than California and the Court granted the motion to dismiss.[4] However, this case is not a typical personal injury or products liability case since it involved a manufacturing and design defect with clear causation. Although Plaintiff’s treating physician and witnesses in Colorado are relevant, those involved in the manufacturing and designing of the fentanyl patch bear a far greater importance and relevancy to this litigation. See Delfosse v. C.A.C.I., Inc.-Federal, 218 Cal. App. 3d 683 (Cal. App. 2d Dist. 1990) (finding the importance of key executives residing in California and corporate documents contained in California); A & M Records, Inc. v. Heilman, 75 Cal. App. 3d 554 (Cal. App. 2d Dist. 1977) (holding that since “substantial manufacturing operations” related to record piracy occurred within California, Defendants’ motion to dismiss should be denied).

D. The Public Interest Factors Favor Retaining this Case in California

The relevant “public interest” factors in a forum non conveniens analysis 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. Morris v. AGFA Corp., 144 Cal. App. 4th 1452, 1453 (Cal. App. 1st Dist. 2006).

Defendants mistakenly allege that litigating this lawsuit in California burdens this Court and that Colorado has a distinct interest in protecting its own citizens. However, the residents of California have a significant interest in ensuring that a large pharmaceutical manufacturing corporation such as ALZA follows proper safety and manufacturing practices. This is particularly true given the fact that ALZA has its principal office in California and manufactured the fentanyl patches that were recalled and caused Plaintiff’s death in California. Moreover, Defendants concede that “other lawsuits have been filed in this state involving the same defendant” demonstrating that California has a significant interest in the litigation of these fentanyl patch cases.[5] Ex. B. at 13.

Defendants improperly attempt to gloss over California’s obvious connections to this lawsuit by claiming that as a matter of comity, this action should be dismissed to Colorado. In support of this proposition, Defendants incorrectly claim that this Court would experience great difficulty applying Colorado law. Plaintiffs do not agree that Colorado law would apply in this case, however, applying the law of another jurisdiction is a routine practice performed by this Court and Courts around the country. Defendants further allege that this case has “little” connection to California. However, Defendants fail to recognize that not only is the manufacturer located in California but one of Plaintiff’s treating physicians and relevant medical records are located in California. Therefore, the public interest factors in this case favor retaining this case in California.

Conclusion

The Court should deny Defendants’ Motion to Dismiss.

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


[1] Despite claiming extreme inconvenience regarding travel to California, Defendants recently traveled to Hawaii to take the deposition of Plaintiff Tammy Henderson who Defendants identify as one of the “key” witnesses in the case. Additionally, Counsel for both Defendants is located in California.

[2] Dr. Robert Bux, Plaintiff’s medical examiner stated that he is willing to travel to California for trial.

[3] In the interest of preserving judicial resources and not burdening the Court with excessive paperwork, Plaintiffs have only included the first 15 pages of Defendants’ Response to Plaintiffs’ Request for Admission which addressed Defendants’ connections to California. Defendants objected to each and every request.

[4] Defendants greatly rely on Stangvik v. Shiley, Inc., which Plaintiff has distinguished. 54 Cal.3d 744, 751 (Ca. 1991). As previously mentioned, the primary reason for granting Defendants’ motion to dismiss in Stangvik was the fact that Plaintiffs were foreign residents and the legal complications associated with obtaining records and witnesses from a foreign country. The facts of this case differ markedly in that Plaintiff is located within the United States and thus far all depositions and medical records have been easily obtained. Moreover, this case was filed more than a year and a half ago and discovery and depositions are well underway.

[5] A search in the Santa Clara Court database demonstrates that more than 20 products liability cases are pending in California state court against ALZA. See Ex. G. Upon information and belief, the vast majority of those are fetanyl patch cases.