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

Meeusen 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 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. 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 ORANGE
APRIL MEEUSEN,Plaintiff,v.

ALZA CORPORATION; SANDOZ, INC. and DOES 1-100,

Defendants.

Case No. 30-2009-00116913PLAINTIFF’S AMENDED RESPONSE TO DEFENDANTS’ MOTION TO DISMISS OR STAY ON GROUNDS OF FORUM NON CONVENIENS PER CCP § 410.30Date: November 6, 2009

Time: 11:00 a.m.

Dept.: C32

COMES NOW April Meeusen, Plaintiff, and hereby files this Amended Response to Defendants’ Motion to Dismiss or Stay on Grounds of Forum Non Conveniens per CCP § 410.30 filed by Defendants Alza Corporation and Sandoz, Inc.

PRELIMINARY STATEMENT

This is an action for wrongful death of the decedent, Terraece Meeusen, who died on January 13, 2007 as a result of using a defective 75 mcg/hour Sandoz fentanyl patch. Mr. Meeusen’s autopsy revealed that the concentration of fentanyl in his blood was excessive and that he died from fentanyl toxicity.

Defendants have filed a motion to dismiss or stay for forum non conveniens, claiming that Michigan is a more convenient forum. Forum non conveniens permits the Court to decline the exercise the jurisdiction over a cause of action which it believes would be more appropriately and justly tried elsewhere. In determining whether or not to dismiss or stay on forum non conveniens grounds, the Court considers whether a suitable alternative forum exists and, if so, whether the balance of the “private” convenience factors and “public” interest factors counsel in favor of that forum.

Taking these factors into account, Defendants’ Motion should be denied. First, the convenience of the parties and witnesses do not favor Michigan. A large number of important witnesses in this case reside in California—most of whom are employees or former employees of Alza and were intimately involved in the design and manufacture of the Duragesic patch. 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 more than a handful of Michigan residents will be introduced at trial. There are also large numbers of documents located in California that pertain to the manufacture of the patch.

Moreover, the public interest considerations favor California. California has a clear and powerful interest in holding manufacturers to account for wrongful conduct committed within its borders. 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.

Finally, Defendants’ claim that the private interest factors mandate the case be pursued in Michigan is belied by their conduct in other cases. The undersigned are lead counsel in many wrongful death, product liability lawsuits brought in California against Alza involving its fentanyl pain patches. In fact, there are currently pending in this state well over twenty (20) cases similar to the instant case. Among these cases are at least eighteen cases (18) involving deaths that occurred outside of California. Some fifteen (15) of the cases are pending in Orange County, including several before this Court. Despite claiming that any case where the Decedent dies outside California should be tried in that state, Defendants have filed motions to dismiss for forum non conveniens in only a handful of the foregoing cases, specifically those in which the law of the state where the decedent resided provides Defendants with a procedural, tactical advantage not available under California law. Defendants’ claims of inconvenience should be seen for what they really are: an attempt to forum shop by seeking to force litigation in those states in which they perceive some tactical legal advantage while being content to litigate in California more than fifteen other cases involving out-of-state deaths. For these reasons, set forth more fully below, Defendants’ Motion should be denied.

FACTS

Terrence Meeusen had a history of serious physical ailments following a blunt force trauma to the head. Following major neurosurgery, he suffered from serious speech deficits. He also had his right leg amputated, was a quadriplegic, and suffered post-traumatic seizure disorder. As a result of his injuries, he suffered from severe pain and was prescribed 75 mcg/hr Sandoz fentanyl patches for pain. Declaration of Charles Miller (“Miller Decl.”) at ¶3.

On January 13, 2007, Mr. Meeusen was discovered dead in his home by an Elder Helper’s aid. An autopsy was performed on January 15, 2007. A 75 mcg/hour Sandoz fentanyl patch was present on the left side of Mr. Meeusen’s chest (the “Meeusen Patch”) and the toxicology tests revealed that he had an elevated level of fentanyl of 17 ng/mL. Miller Decl. at ¶5, exh. 1.

Fentanyl is a powerful opiod that has proven lethal at levels as low as 3.0 ng/mL and the fatal level of fentanyl averages 8.3 ng/mL. Miller Decl. at ¶6. The package insert accompanying the patch(es) worn by Decedent indicates that his blood fentanyl level should not have exceeded 1.7 ng/mL with a standard deviation of .7 ng/mL. Miller Decl. at ¶7. In other words, Decedent’s level of fentanyl was ten times higher than it should have been had his patch functioned properly. The cause of death listed on the autopsy was “fentanyl toxicity.” Miller Decl. at Exh. 1.

The patch found on Decedent’s body was designed and manufactured by Defendant Alza Corporation and distributed by Defendant Sandoz. Miller Decl. at ¶8. In 2004, Defendant Alza initiated an “Urgent Drug Recall” of five lots of its fentanyl pain patches because they contained a defect known as the “fold-over defect” which causes the fentanyl medication to leak along one edge of the patch directly onto the patient’s skin instead of being delivered through the rate-control membrane. Miller Decl. at ¶8. The FDA later inspected ALZA’s manufacturing facility in Vacaville, California – where the Meeusen Patch was manufactured – and cited the company for numerous manufacturing problems. The FDA determined that the quality control checks for its fentanyl pain patches were “inadequate to prevent release of defective product,” including, but not limited to the “foldover” defect. Miller Decl. at ¶9. Alza later initiated recalls of other patches in February 2008 and December 2008. Id.

ARGUMENT & AUTHORITIES

A. 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.

 

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 only entitled to deference 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. 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.

To begin, the Meeusen Patch was manufactured at Alza’s manufacturing facility in Vacaville California. Virtually all of the witnesses who can testify about various aspects of manufacture of the Duragesic patch during this time are California residents. Most of these witnesses are Alza employees and they include: Robert Gale (inventor of the Duragesic fentanyl pain patch); David Chullino (director of process engineering); Charles Bonner (senior director of manufacturing); Robert Brown (production manager); Kathy Brown (manager for transdermal and package engineering); Sanjay Panda (quality assurance); Brian Strehlke (DEA compliance); Rudy Holland (chief operator of the Bodolay I), Bill Young (reliability engineer; project engineer/manager); John Murphy (investigations); Patricia Hancock (quality assurance; transdermal manufacturing); Bill Haish (director of engineering/maintenance), Francesco Pannone (senior quality assurance director), Carolyn Boehmler (QA line auditor) and several others. Miller Decl. at ¶10.

Taken together, there are more than 20 witnesses in California that can offer testimony about the design and manufacturing aspects of the Meeusen Patch. Miller Decl. at ¶10. These witnesses can also testify about the circumstances surrounding the FDA inspection and citation of Alza for the manufacturing problems that necessitated the recall. At Defendants’ request, these witnesses have all been previously deposed in California in other cases that have been filed in other states. Defendants’ claim that “there are only a few potential defense witnesses who are located in California…” cannot be taken seriously.

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 Terrence Meeusen’s body, and first responders to the scene. In spite of Defendants’ claims of the importance of their testimony, the history of litigation in previous cases shows none of these persons are likely to be called to trial. Motion at p. 7.

For instance, in Hendleson v. Alza Corp., et. al., Civil No. 05-CV-81116-CIV (S.D. Fla.), a product liability wrongful death case involving Duragesic which was tried to verdict in June 2007, Defendants did not call a single treating physician or first responder as witnesses during trial—even though such persons were within the Court’s subpoena power. Nor did Defendants introduce their pre-trial testimony by transcript or video. Miller Decl. at ¶11. Similarly, in Hodgemire v. Alza, et. al., No. 2004-CA-001311 (Fla. Seminole County Ct.), another fentanyl death case involving Duragesic which was tried in Florida late last year, Defendants again failed to call live, by video or transcript the medical examiner, decedent’s treating physicians, or the first responders. Miller Decl. at ¶13. Most recently in DiCosolo v. Alza, et. al., No. 04-L-5351, (Ill. Cook County Ct.), a three week trial ensued in Illinois state court involving death from Duragesic. Only one treating physician of the decedent (the prescribing doctor) was called to testify live—by the Plaintiffs. The medical examiner who performed the decedent’s autopsy in that case was also called as a witness, again, by the Plaintiffs. Defendants, in contrast, failed to introduce the pre-trial testimony of or call at trial any treating physicians, first responders, or persons from the medical examiner’s office. Miller Decl. at ¶12.

The case at bar is virtually identical to these cases in relevant respects. In every case, the decedent’s body was found by someone; in every case, the decedent had a medical history that was thoroughly dissected by the Defendants; and in every case, an autopsy was performed. Nonetheless, Defendants have never deemed the testimony of decedent’s treating physicians, first responders or medical examiners sufficiently critical to elicit or otherwise introduce at trial. To the extent that local non-party testimony has been elicited, it has been limited to, at most, one or two witnesses that would likely be called not by the Defendants, but by the Plaintiffs. In short, there is no reason to believe that more than one or two witnesses residing in Michigan will be called to testify at trial in this case.

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. Miller Decl. at ¶14. 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.”).

Considering these facts, the cases cited by Defendants are inapposite. 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 an 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. 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 nearly 200 other defendants for injuries sustained as a result of many years of exposure to asbestos. Ultimately, the original plaintiff died and his heirs filed claims for wrongful death. But, the nature of the facts, claims and the damages alleged Hansen made it such that virtually 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, 759-60. Again, that is not the case here.

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 inured 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, one of the defendants has its 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 Defendant Alza has its principal place of business in California. As such, California is presumptively a convenient forum. A resident defendant like Alza 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 Alza, it is the state in which the Meeusen Patch that is the subject of this lawsuit was designed, manufactured and initially marketed. Plaintiff’s claims for strict products liability, design defect, manufacturing defect and warnings defect are all focused on activity that occurred in California. Under these facts, it is disingenuous for Defendants to claim that Plaintiff’s claims “have only tenuous connection to this state.” Motion at p. 11. Where, as here, the 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. The undersigned are lead counsel in many wrongful death, product liability lawsuits brought in California against Alza involving its fentanyl pain patches. In fact, there are currently pending in this state well over twenty (20) cases similar to the instant case. Among these cases are at least eighteen cases (18) involving deaths that occurred outside of California. Some fifteen (15) of the cases are pending in Orange County, including several before this Court. Despite claiming that any case where the Decedent dies outside California should be tried in that state, Defendants have filed motions to dismiss for forum non conveniens in only a handful of the foregoing cases: this case and the Helzer case, both pending in Michigan, and the Davenport and Meads cases involving deaths in North Carolina. As Defendants admit, Michigan law provides manufacturers of prescription drugs an absolute defense to a products liability claim when their drug was approved by the FDA. Motion at p. 10. North Carolina does not recognize strict products liability. Curiously, these four cases involving deaths in Michigan and North Carolina are the only cases involving out-of-state deaths that Defendants have moved to dismiss on the basis of forum non conveniens.

It 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 those states in which they perceive some tactical legal advantage while being content to litigate in California more than fifteen 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 manufacture of Defendant’s product in California weigh heavily in favor of California venue.

Defendants argue that these factors favor venue in Michigan because “Plaintiff’s case has no meaningful ties to California, its judicial systems, or its jurors.” Motion at p. 10. This statement is both false and misleading. As set forth above, it is uncontested that the very patch that killed Terrence Meeusen was designed, manufactured and marketed by Defendant Alza in California. Where, as here, an allegedly defective product was designed, manufactured, labeled 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 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. Applying these principles, another California court recently denied Defendants’ motion to dismiss a fentanyl pain patch case on the basis of forum no conveniens under nearly identical factual circumstances. The Court in Davenport v. Johnson & Johnson held:

With regard to the public interest factors, any litigation represents a burden to the local courts. Defendants have not made a sufficient showing that this litigation will present an overburden to this court. Inasmuch as this cases involves a drug manufactured in California and distributed nationwide, California and its citizens have just as much of an interest in this litigation as citizens of the State of North Carolina. Since the balance of private and public interest factors do not weight strongly in favor of the defendant, the plaintiff’s choice of forum shall stand.

Miller Dec. Exh. 6. The instant Motion should likewise be denied.

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 concede that there are other lawsuits pending in this state involving the wrongful death of California residents allegedly caused by Defendants’ fentanyl patches. Motion at p. 10; Zellers Decl. ¶ 14. 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.

 

Defendants concede that “deterring a resident defendant’s wrongful conduct” is an appropriate goal that bears on maintenance of venue in California. Motion at p. 10. This admission recognizes that 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 p. 10; Zellers Decl. ¶ 14. 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. This is especially true where, as here, Alza would be able to completely escape liability for its wrongful conduct should the case proceed in Michigan. See Motion at p. 10, n.1.

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, manufacture 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 above, there are currently pending in this state well over twenty (20) cases similar to the instant case. Each of these cases involves a wrongful death caused by a defective fentanyl patch designed, manufactured and marketed by Defendant Alza in California. Among these cases are at least eighteen cases (18) involving deaths that occurred outside of California. Some fifteen (15) of the cases are pending in Orange County, including several before this Court.

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 Plaintiff respectfully prays that the Court deny Defendants’ Motion to Dismiss or Stay on Grounds of Forum Non Conveniens Per CCP § 410.30 and grant her such other and further relief to which she may show herself to be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
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