September 01, 2016 Practice Points

(Properly) In Pursuit of the Perfect Forum

By Chelsea R. Stanley

Selecting an advantageous forum is critical to maximizing the likelihood of success in a products liability lawsuit. At the outset, venue and jurisdiction requirements limit the number of available forums. Nevertheless, several options are generally available in products liability actions because the product was likely designed, manufactured, distributed, used, and/or allegedly failed in several different states. Opposing parties frequently dispute which available forum should hear the case because the substantive laws of the available forums may compel different outcomes.

The plaintiff, by filing the action, chooses the initial forum. Defendants, however, have a number of procedural devices at their disposal, including: (1) motions for change of venue, (2) motions for lack of personal jurisdiction, (3) removal, (4) choice-of-law arguments, and (5) motions to dismiss for forum non conveniens.

With respect to choice of law, for example, filing a lawsuit in a state's court does not guarantee the application of that state's law. Rather, courts employ choice-of-law rules, which vary by state, to determine which jurisdiction's substantive laws apply. The majority rule is that the action is governed by the laws of the state with the "most significant relationship" to the action. Other states simply apply the law of the "place of the wrong" (generally the place of the injury).

Dismissal on the basis of forum non conveniens has been of particular interest recently. Pursuant to this doctrine, a court has the discretion to dismiss a claim where (1) an alternate forum is available and adequate for all defendants; and (2) private and public interests weigh in favor of adjudicating the action in the alternate forum. Some products liability plaintiffs seek to thwart the application of this doctrine by simply naming a "sham" defendant subject to jurisdiction only in the filing state.

This improper gamesmanship was recently exposed in David v. Medtronic, Inc., 237 Cal. App. 4th 734 (2d Dist. Ct. App. 2015). In David, thirty-seven plaintiffs brought suit against medical device manufacturers and a California doctor alleging harm from off-label use of a medical device. The manufacturers filed a motion to dismiss for forum non conveniens, seeking to require plaintiffs to litigate their actions in their home states. The California doctor was admittedly not a primary defendant—he had no involvement in the manufacture or marketing of the device. Accordingly, the manufacturers argued that it was unnecessary to establish jurisdiction over the California doctor in the alternate forum for the purposes of obtaining forum non conveniens relief. The court agreed, stating that otherwise "an enterprising plaintiff could preclude a forum non conveniens dismissal by [merely] naming an additional defendant over whom the alternative forum could not exercise jurisdiction." Id. at 737.

The "nominal defendant" exception to forum non conveniens had not previously been widely explored in products liability actions. Rather, the David decision found support from the general rule that a plaintiff cannot defeat a motion to transfer by simply naming a nominal defendant that cannot be transferred to another court. Id. at 744.

Practice Pointers:

  • Prior to filing, plaintiffs should review the choice-of-law rules in each of the available forums and the respective states' procedural and substantive laws implicated by the products liability action. Through diligent research, the plaintiff should be able to determine which of the available forums offers the best opportunity for success.
  • If, using the same analysis above, the defendant determines that another forum would be advantageous to it, the defendant should determine which procedural vehicle can be used to move the action to that forum. This analysis should be conducted early in the litigation because many of the procedural devices are subject to statutory time limitations.
  • The defendant should also consider the costs associated with threshold disputes over forum. If the differences between available forums are far from decisive, expending resources that could otherwise be devoted to litigating the merits of the action may not worthwhile.
  • Finally, keep apprised of legal developments that serve as additional tools to avoid litigating in unfavorable forums.

Chelsea R. Stanley is with Stites & Harbison, PLLC, in Jeffersonville, Indiana.


Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).