Tuesday, August 26, 2008

State ex. rel. Wyeth v. Grady[1]

Opinion handed down August 26, 2008[1]
Link to Mo. Sup. Ct. Opinion

In State ex. rel Wyeth v. Grady, the Missouri Supreme Court refused to issue a writ of prohibition that would have prevented the St. Louis Circuit Court from denying a motion to dismiss a lawsuit based on forum non conveniens[2]. Plaintiffs were hormone therapy users who sued drug manufacturers for injuries sustained from use of their pharmaceuticals.[3] The court reasoned that because the defendants could not show that taking the case would be an undue burden for the Missouri court system or that trying the case in Missouri courts would be oppressive to the companies, the trial court did not abuse its discretion in dismissing the forum non conveniens motion. [4]

I. Facts and Holding[5]

In 2004, a group of 186 women who had taken prescription hormone therapy drugs manufactured by Wyeth and other companies brought suit against a group of 34 pharmaceutical companies and pharmacies that manufactured and sold the drug. After a removal to federal court and a subsequent remand to state court, defendants sought and obtained a motion to sever the individual complaints. Of the 186 plaintiffs, eleven remained with non-diverse claims in the Circuit Court of St. Louis. Defendants then sought a motion to dismiss ten of those claims on forum non conveniens grounds. The trial court denied the motion.

The defendants sought a writ of prohibition based on the trial court’s alleged abuse of discretion in denying the motion to dismiss. The Missouri Supreme Court began by examining the relevant factors that determine whether a forum is inconvenient. The Court noted that none of the women had ingested the pharmaceuticals in the state of Missouri.[6] All of the potential witnesses for the trial were located outside the state and out of range of the court’s subpoena powers; however, defendant drug manufacturers could not provide specifics about which witnesses would be unable to attend the trial.

The Court next noted that neither the plaintiffs nor the pharmaceutical companies were located in Missouri. The nexus with the forum was that the pharmaceutical companies routinely sold the drug and did business within the state. While the pharmaceutical companies argued that the case would overburden the Circuit of St. Louis, the Missouri Supreme Court could not find evidence to support this inference. Finally, the Court noted that while there were other cases open around the country, even in the home states of some of the plaintiffs, the allegations were not sufficiently specific to weigh the factor in favor of the defendants.

The Missouri Supreme Court concluded that defendants had not produced sufficient evidence to show an abuse of discretion by the trial court in allowing the litigation to proceed. In a concurring opinion, Judge Clark agreed with the majority opinion but emphasized that the Court should be wary of sanctioning interlocutory appeals of forum non conveniens because of the discretionary nature of the doctrine.[7]

II. Legal Background

Where a plaintiff could have brought an action in another court, the court in which suit was instituted may, in its discretion, decline jurisdiction for prudential reasons.[8] Forum non conveniens is a fact-driven, factor-based inquiry. The six relevant factors for a court to consider are:

“(1) place of accrual of the cause of action, (2) location of witnesses, (3) the residence of the parties, (4) any nexus with the place of suit, (5) the public factor of the convenience to and burden upon the court, and (6) the availability to plaintiff of another court with jurisdiction of the cause of action affording a forum for plaintiff's remedy.”[9]

Along with these six factors, there are two other considerations for a court to weigh: “whether permitting the trial to proceed in Missouri would cause an injustice due to oppression of the defendant or [create] undue burden on the court.”[10] The defendant alleging forum non conveniens must meet a high burden of proof, showing that the factors weigh heavily in their favor.[11]

Commentators have noted that each jurisdiction follows its own rules in determining whether the plaintiff is using a forum properly.[12] Appeals on issues of forum non conveniens are relatively rare, and success is non-existent. No Missouri appellate court has issued a writ “directing a trial court to dismiss a case on grounds of forum non conveniens.”[13] Appeals courts are content to afford trial courts discretion in determining whether the fact-driven inquiry is met.

III. Comment

The probability of the defendants prevailing in the action was small. The law is clear that the factors in favor of dismissal on forum non conveniens grounds must weigh heavily in favor of the defendant. Moreover, a writ of prohibition is an extraordinary remedy. Together, it would seem that any factor weighing against a defendant’s motion would be sufficient to defeat that motion.

However, the entire litigation strategy of the defendants could charitably be described as war by attrition. The pharmaceutical companies were represented by some of the larger firms in Missouri. The defendant companies have deep pockets. In high-stakes product liability litigation, appeals for extraordinary writs are more commonplace because the potential dismissal is too tantalizing to resist.

The streak of consistent denials of writs of prohibition should give all practitioners cause to reflect. Even in “bet the company” cases, should a practitioner use client resources to pursue an end with no historical success? If the end is simply to delay litigation, then perhaps that answer is in the affirmative. Though, such a strategy could have certain ethical implications. Certainly, in Wyeth the litigation over the forum non conveniens issue added an extra year and a half to the litigation process.

Drawing out the litigation process is especially attractive to defendants facing a class action worth significant sums of money. Class action plaintiff law firms are a risky business, where such delay can be an effective countermeasure and determent to future litigation by nudging class actions out of the business reality. Such gamesmanship of the system should be discouraged.
This context justifies the outcome of Wyeth. The trial court noted the procedural dance had been drawn out long enough. The removal, remand, severing, amending of complaints, and interlocutory appeal process perhaps weighed in the back of the trial court’s and Supreme Court’s minds. The procedural delay may have been the best argument in favor of the plaintiffs.

- Brian T. Bear

[1] State ex. rel Wyeth v. Grady, 262 S.W.3d 216 (Mo. 2008) (en banc).
[2] Id.
[3] Id. at 218.
[4] Id. at 223.
[5] Id. at 217-22.
[6] Plaintiffs were located in the northeast region of the country. Id. at 220.
[7] Id. at 230-31.
[8] See Martin J. McMahon, Forum Non Conveniens Doctrine in State Court as Affected by Availability of Alternative Forum, 57 A.L.R. 4th 973 (2005).
[9] State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165 (Mo. 1999) (en banc).
[10] Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298 (Mo. 1992) (en banc).
[11] Id. at 203 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).
[12] Michael D. Murray, Jurisdiction Venue Limitations, 12 Missouri Practice § 2:44 (2008) (For example, in the Circuit of St. Louis County, the court will accept cases based on transactions arising within 300 miles of the court.)
[13] See Wyeth, 262 S.W.3d at 230-31.