If you’re a defendant, you don’t want to be in thePhiladelphia Court of Common Pleas – for well-known reasons. One of those reasons isblatant, plaintiff-friendly forum shopping. As ATRA’s latest report states:
Forum Shopping: The Philly Phenomenon
Pennsylvania law provides significant flexibility toplaintiffs’ lawyers as to where to file their cases. For example, Pennsylvania law permits claimsagainst businesses anywhere in the state that they conduct more than incidentalor isolated business activity. In a 2009 ruling, a Pennsylvania court candidlyacknowledged that “Pennsylvania does not forbid ‘forum shopping’ per se – tothe contrary, our venue rules give plaintiffs various choices of differentpossible venues, and plaintiffs are generally free to ‘shop’ among those forumsand choose the one they prefer.” Whilecourts can transfer or dismiss cases “for the convenience of parties andwitnesses,” Pennsylvania judges place a heavy burden on the defendant topresent detailed information proving that the plaintiff’s choice of court is“oppressive or vexatious.” Such requestsare often denied, even when there is little or no connection between the lawsuitand the county in which it is filed.
A couple of recent cases buck this trend, so wethought we’d tell you about them. Themost notable case is Stoner v. Penn Kleen, Inc., ___ A.3d ___, 2012 WL4748204 (Pa. Super. Oct. 5, 2012). Onereason it’s notable is that it’s by the Pennsylvania Superior Court, source ofmost of the pro-plaintiff forum non conveniens rulings (Philly trial judgeshave repeatedly tried and largely failed to evict the litigation tourists) thatATRA was complaining about in the first place. See Zappala v. James Lewis Group, 982 A.2d 512, 520 (Pa.Super. 2009) – source of the quote in the ATRA piece.
Stoner was – surprise! – a product liabilitycase, but not a drug case; it involved a "pressure washer." The plaintiff, from York County(mostly Amish country rural and conservative) sued a supposed Adams (next toYork) County intermediate supplier along with product liability defendants fromNorth Carolina, Minnesota, Arizona, and Denmark. Legally, the suit was bogus – the plaintiff,a junk yard employee allegedly “was injured by an explosion which occurredduring the course of his disassembly” of the product. Stoner, 2012 WL 4748204, at *1. Disposal/recycling of a product after it hasworn out and been thrown away is not, as a matter of law, an “intended use” ofthe product under Pennsylvania law. Milescov. Norfolk Southern Corp., 2010 WL 55331, at *5 (M.D. Pa. Jan. 5, 2010) (“asa matter of law, the recycling of a product after the end of its useful life isnot a use of the product reasonably foreseeable to the manufacturer”); U.S.v. Union Corp., 277 F. Supp.2d 478, 493 (E.D. Pa. 2003) (“the dismantlingand processing of junk electrical components was not a reasonably foreseeableuse”); Kalik v. Allis–Chambers Corp., 658 F. Supp. 631, 635 (W.D. Pa. 1987)(product recycling not an intended/foreseeable use). To maximize its chance of survival, thisbogus lawsuit gets filed in Philadelphia, thus sticking Philadelphia taxpayers(such as some of us) with the costs of litigation completely unrelated to Philadelphia.
But not so fast. At the request of the Pennsylvania distributor (not the productmanufacturer defendants), a brave Common Pleas judge (unfortunately notacknowledged in the opinion) ordered a transfer to Adams County (wherethe Battle of Gettysburg was fought). That’s an appealable order, and for once the Superior Court affirmed thetransfer:
[Defendant] averred that each of the fact witnesses waslocated in Adams County, where the accident took place, and that the employeesof [defendant] work and reside only in York County. Second, [defendant] presented affidavits andother submissions which established that venue in Philadelphia would not merelybe inconvenient to itself and the witnesses, but that it was a substantialburden.
Stoner, 2012 WL 4748204, at *3. That’s good, but before anybody gets tocelebrating too much, here’s what those affidavits said:
[Defendant] submitted an affidavit from [its] President . . .,who stated that venue in Philadelphia County would cause him to have to shut down the business during the courseof the trial, resulting in loss of income. These statements were corroborated by theaffidavits of [defendant’s] employees, who determined that travel toPhiladelphia would take in excess of three-and-a-half hours, involve at least200 roundtrip miles, and impose significant costs. At the same time, these employees noted thattravel to Adams County would involve only 31 to 75 miles' travel, and would notinvolve the same tolls or parking fees.
Id. (emphasis added). While non-Philadelphia corporate defendantscould probably adduce similar – or better – travel cost evidence, it’s doubtfulthat any significant sized business could make the same sort of business shutdown argument. So, while Stoneris a useful first step, it in no way gets us out from under all that bad lawmentioned by ATRA.
But if a defendant can get the case removed tofederal court, then things look up quite a bit.
That’s the lesson of McLaughlin v.Glaxosmithkline, LLC, 2012 WL 4932016 (E.D. Pa. Oct. 17, 2012)(Buckwalter, J.). The plaintiff in McLaughlinwas another litigation tourist, this time from outside Pennsylvania – fromLouisiana. Another feature that McLaughlinshares with Stoner is that the case is bogus on the merits. The plaintiff took only a generic drug. Oops, Mensing preemption. So the plaintiff also sued the maker of thebioequivalent branded drug she didn’t take. But that theory’s just about as dead as dead can be in Louisiana. See Stanley v. Wyeth, Inc., 991So.2d 31, 33-35 (La. App. 2008); Demahy v. Schwarz Pharma, Inc., ___Fed. Appx. ___, 2012 WL 5261492, at * 3-4 (5th Cir. Oct. 25, 2012); Morrisv. Wyeth, Inc., 2011 WL 4975317, at *3-4 (W.D. La. Oct. 19, 2011); Cooperv. Wyeth, Inc., 2010 WL 4318816, at *2-3 (M.D. La. Oct. 26, 2010); Craigv. Pfizer, Inc., 2010 WL 2649545, at *2-4 (Mag. E.D. La. May 26, 2010), adopted,2010 WL 2649544 (W.D. La. June 29, 2010); Morris v. Wyeth, Inc., 2009 WL4064103, at *4-6 (W.D. La. Nov. 23, 2009); LeBlanc v. Wyeth, Inc., 2006WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006); Possa v. Eli Lilly & Co.,2006 WL 6393160, at *1, (M.D. La. May 10, 2006); Tarver v. Wyeth, Inc.,2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL1517546, at *2-3 (W.D. La. Jan. 26, 2006). So once again, we in Pennsylvania get stuck with having to entertain alitigation . . . in this case more of a “refugee” than a “tourist.”
But like Stoner the plaintiff in McLaughlingot sent packing (back to Louisiana) under the federal forum non conveniensstatute, 28 U.S.C. § 1404(a). This timethe grounds are more generally applicable. Plaintiff was a Louisiana resident, where all the operative factsoccurred, so her choice of an out-of-state forum is entitled to lessweight. McLaughlin, 2012 WL4932016, at *3. The defendant prefersthe Louisiana forum even though headquartered in Pennsylvania. Id. The “operative facts” of a products liabilityaction are deemed to occur where the allegedly defective product was used andinjury occurred, which was Louisiana. Id.at *4. Witnesses from Louisiana couldnot be compelled to come to Pennsylvania whereas the defendant’s employees maybe subpoenaed to come to Louisiana. Id. In this electronic age, nobody gives adamn any longer about the location of books and records. Id. at *5. There is no difference inthe enforceability of a judgment. Id. The location of many witnesses exclusivelyin Louisiana was a practical consideration supporting transfer. Id. at *6. The per-judge docket in the Western Districtof Louisiana was a third the burden shouldered by judges in the EasternDistrict of Pennsylvania. Id. And finally, controversies should be decided wherethey arise, in this case here Louisiana, and a Louisiana judge will be morefamiliar with Louisiana law. Id.at *7.
Under those facts, forum non conveniens transfer toLouisiana (and to probable dismissal with prejudice) was granted. Significantly, the facts in McLaughlinare likely to be replicated in just about any litigation tourism case. So if the defendant can get into federalcourt (often a big “if”) then transfer under the principles set out in McLaughlinis likely to be available. Kiss that one goodbye.
So, to all you litigation tourists in federal court–see y’all later.
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