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6th Cir. Dismisses Second Forum Case in Just as Many Weeks

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By Jonathan R. Tung, Esq. on July 15, 2016 6:57 AM

The Sixth Circuit just affirmed a second dismissal on forum non conveniens grounds in just as many weeks.

In this case with international implications, the Sixth Circuit found that American citizen Brandon Hefferan should have brought suit in Germany instead of the United States, following his nightmarish experience with a surgical stapler that malfunctioned.

Forum Non Conveniens

Hefferan is an American citizen who was living in Deutschland with his German wife in 2002, when he underwent surgery. That surgery didn't go too well, leading to complications that required twenty follow-up surgeries and permanent injuries -- due, Hefferan alleged, to the surgical stapler manufactured in the United States. When Hefferan sued, Ethicon, the manufacturer, sought to have the case dismissed in favor of proceeding in Germany.

The Sixth Circuit's step-by-step analysis let it to the simple conclusion that Hefferan's suit should be dismissed as a more appropriate forum was available elsewhere.

The Circuit turned to its earlier case, Solari v. Goodyear Tire & Rubber Co. and looked at a three pronged test outlined there: first the court must determine the level of deference it must give to the plaintiff's initial choice of forum; then it must analyze whether or not the defense has proposed adequate alternative forum; finally, it must apply the "unnecessarily burdensome" balancing test.

Re: Deference

Hefferan's case differed from Solari in that he was an American living in Germany rather than plaintiffs facing suit in a foreign overseas land. Since Hefferan was an American citizen, he had more connections to the forum state than those parties in Solari, a "sliding convenience scale" was applied to differentiate American plaintiffs living in foreign lands. This meant that the presumption of convenience of the parties was less of a concern than had they been American parties living in America.

Re: Alternative Forum

With regards to the adequate alternative forum aspect, traditional forum non conveniens law is primarily concerned with whether or not another forum would strip the plaintiff's remedy of substantial value. That was clearly not the case here, the court concluded. This is because the court, in applying the "most significant relationship test" would have concluded that the plaintiff's loss of consortium injuries could not be recoverable.

Re: Other Factors

After taking into account the various competing interest, the court found that Germany was the more appropriate forum because that country had a strong interest in adjudicating a case over a product that was purchased and used within its borders -- this despite the malfunctioning of the staple occurring within American borders.

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