Bhatnagar v. Surrendra , 52 F.3d 1220 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-17-1995
Bhatnagar v Surrendra
Precedential or Non-Precedential:
Docket 93-2059
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 93-2059 and 93-2076
___________
URVASHI BHATNAGAR, an Infant by her Mother
and Natural Guardian, Kaplana Bhatnagar;
KAPLANA BHATNAGAR, Individually
vs.
SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, in
personam; M.V. APJ KARAN, her engines,
boilers, tackle, etc. in rem
SURRENDRA OVERSEAS LIMITED, Claimant to
the Res; APEEJAY LINES, in personam and
the M/V APJ KARAN, her engines, boilers,
etc. in rem,
Appellants in No. 93-2059
URVASHI BHATNAGAR, an Infant by her Mother
and Natural Guardian, Kaplana Bhatnagar;
KAPLANA BHATNAGAR, Individually
vs.
SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, in
personam; M.V. APJ KARAN, her engines,
boilers, tackle, etc. in rem
Urvashi Bhatnagar, an infant by her
Mother and Natural Guardian,
Kalpana Bhatnagar, and Kalpana
Bhatnagar, Individually,
Appellants in No. 93-2076
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 92-06321)
___________
ARGUED JULY 19, 1994
BEFORE: SCIRICA, LEWIS and ROSENN, Circuit Judges.
(Filed April 17, 1995)
___________
William G. Downey (ARGUED)
Michael D. Greenberg
Clark, Ladner, Fortenbaugh & Young
2005 Market Street
One Commerce Square, 22nd Floor
Philadelphia, PA 19103
Attorneys for Surrendra Overseas, Apeejay
Lines and M/V APJ Karan
Lenore E. McQuilling (ARGUED)
Harold Gordon
Kahn & Gordon, P.C.
30 Vesey Street, Suite 1400
New York, NY 10007
Attorneys for Urvashi Bhatnagar and Kalpana
Bhatnagar
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
This case principally involves an issue of first
impression for this court: can extreme delay in an alternative
forum render that forum inadequate for purposes of assessing a
forum non conveniens motion? We answer that question in the
affirmative, and then address a number of issues arising from the
trial of this matter.
This case comes to us after final judgment in rem in
favor of plaintiff Urvashi Bhatnagar, a young female Indian
national, against Surrendra Overseas Ltd. ("Surrendra"), an
Indian shipping company, Apeejay Lines, an unincorporated
division of Surrendra,1 and the M/V APJ KARAN, an Indian vessel,
for injuries that Urvashi sustained aboard the APJ KARAN on the
high seas. In 1991, while six-year old Urvashi was playing a
"game" with one of the ship's crew on the bridge of the APJ
KARAN, her right hand and arm were severely lacerated when they
came in contact with a device used to repel water from the
windows of the bridge.
Urvashi and her mother, Kalpana, sued Surrendra in
federal court in New York under the court's admiralty
jurisdiction, then transferred the action to the Eastern District
of Pennsylvania. After discovery, Surrendra filed a series of
motions seeking to dismiss the complaint on the grounds of forum
non conveniens. The district court denied the motions, however,
1
. Surrendra states in its brief that ApeeJay "is not a legal
entity" (Appellant-Cross-Appellee's Br. 5), and in its answer to
the Bhatnagars' complaint, Surrendra alleged that "there is not a
separate corporation as ApeeJay Lines." Joint Appendix
("J.A.") 2. The Bhatnagars accept Surrendra's characterization
of ApeeJay. Appellees-Cross-Appellants' Br. 4. We treat
Surrendra, ApeeJay, and the APJ KARAN as one defendant for
purposes of this appeal.
and after a two-day bench trial during which the court purported
to apply Indian law, the court awarded Urvashi a total of
$189,331.00 in damages. Surrendra appeals the judgment, and
Urvashi and her mother cross-appeal. We will affirm in most
respects but will remand for a redetermination of damages under
Indian law.
I.
A.
The Bhatnagars are a family of Indian citizens. Sanjay
Bhatnagar, Urvashi's father, was hired in India as an assistant
engineer aboard the vessel APJ KARAN, one of eight vessels owned
and operated in international commerce by Surrendra. Sanjay
boarded the APJ KARAN in the Indian territory of Goa in November
1990. With Surrendra's permission, Sanjay's wife, son and
daughter were to join him on the vessel.
The family had planned to board the vessel in India
with Sanjay, but were unable to obtain the requisite visas. With
the Surrendra's assistance, however, Sanjay's wife Kalpana
Bhatnagar and her two children flew to the United States and
boarded the ship in Portland, Oregon, where the APJ KARAN took on
a cargo of grain destined for Alexandria, Egypt.
On board the APJ KARAN, rules and regulations
designated areas where unauthorized people were not allowed to
go. Notices were posted in several places indicating which areas
were off limits. For example, there was a sign posted at the top
of the stairs leading to the bridge which said "off limits," and
a sign posted outside the radio room which said "Navigators
Only." The captain of the APJ KARAN testified that he spoke with
Sanjay Bhatnagar and his family and instructed them not to enter
the restricted areas, and Sanjay also testified that he spoke
with his family concerning the areas they were not allowed to
visit.
Despite these rules, on March 17, 1991, the ship's
steward took Urvashi to the bridge -- an "off limits" area --
while he was serving tea to the duty officer. Once on the
bridge, the steward left Urvashi, and the six-year old approached
the helmsman. The helmsman picked her up and placed her upon a
railing facing the windows and a "clearview screen," a device
which repels rain and other moisture by revolving at a high rate
of speed. It was rainy that day, and the clearview screen
revolved rapidly to provide the helm with an unimpeded view of
the ocean ahead.
For some reason, the helmsman decided to show Urvashi
how to play a "game": he feigned putting his hand on the
clearview screen, then encouraged her to do the same. However,
when Urvashi followed the helmsman's lead her hand slipped, and
the clearview screen severely injured her right hand and portions
of her arm.
The APJ KARAN was steaming in international waters when
the accident occurred. The captain immediately radioed for help
and was transferred to the United States Coast Guard, which
directed the captain to divert the vessel to the nearest
landfall. That turned out to be the island of Antigua, and
Urvashi, her brother and her mother were evacuated there.
After receiving emergency medical treatment on Antigua,
on March 20, 1991 Urvashi and her mother and brother flew to New
York, where their relatives, who are doctors, arranged for
further medical assistance. The three Bhatnagars (later joined
by Sanjay) entered the United States on emergency medical visas
valid for six months.
Despite the expiration of their emergency medical
visas in September 1991, the Bhatnagars have remained in New York
living with relatives since the accident. Urvashi has undergone
therapy for her wounds and has attended school in West Islip, New
York. In all, Urvashi had a series of six operations from March
1991 through May 1992 to repair her hand.
B.
Urvashi and Kalpana Bhatnagar brought suit in September
1992 against Surrendra, ApeeJay Lines, and the APJ KARAN in the
United States District Court for the Southern District of New
York. Urvashi alleged negligence, lack of adequate medical care
and gross negligence, and Kalpana claimed loss of services
resulting from the injuries to her daughter. When the APJ KARAN
was docked at the Port of Philadelphia in October 1992, however,
the plaintiffs transferred the case to the United States District
Court for the Eastern District of Pennsylvania, and Surrendra
issued to the plaintiffs a letter of undertaking of $2 million in
lieu of the vessel's arrest and detention in Philadelphia.
After substantial discovery, Surrendra moved to dismiss
the Bhatnagar's complaint on the ground that it was barred by the
forum selection clause in Sanjay Bhatnagar's employment contract2
or, alternatively, that the district court should exercise its
discretion and dismiss the case under the doctrine of forum non
conveniens. The district court denied the initial motion, denied
Surrendra's motion for reconsideration or certification of the
forum non conveniens ruling under Fed. R. Civ. P. 54(b), and also
denied a second motion for reconsideration filed after further
discovery. Thus, the case went to trial.
The district court, after a bench trial in which it
purported to apply Indian law, awarded Urvashi $33,133 in
pecuniary damages for past medical expenses, $6,000 for future
medical expenses, and $150,000 for pain and suffering,
disability, disfigurement, loss of enjoyment of life, mental
anguish and emotional injury. The court ruled in favor of
Surrendra on Kalpana Bhatnagar's claims, finding that she had not
proven any loss of service or psychiatric injury as a result of
Urvashi's injuries.
Surrendra appeals the denial of the district court's
rulings with respect to forum non conveniens and also contends
that the district court made numerous errors at trial. Urvashi
and Kalpana Bhatnagar cross-appeal the adequacy of the judgment
in favor of Urvashi and also challenge the district court's
judgment in favor of Surrendra on Kalpana Bhatnagar's claims.
The district court had jurisdiction pursuant to 28 U.S.C. § 1333.
We have jurisdiction under 28 U.S.C. § 1291.
2
. This ground is not pressed by Surrendra on appeal.
II.
Surrendra makes three claims of error: (1) the
district court abused its discretion when it failed to dismiss
the case under the doctrine of forum non conveniens; (2) the
court erred in imposing liability upon Surrendra; and (3) the
court erroneously calculated Urvashi's damages. We address each
of these issues in turn.
A.
It is undisputed that the parties in this case are
Indian nationals and the ship on which Urvashi's accident
occurred was an Indian-flagged ship on the high seas. Before the
district court rejected Surrendra's motion to dismiss on the
grounds of forum non conveniens and proceeded to trial, the only
links with the United States present in this case were the
following: (1) the Bhatnagars claim residence in the United
States; (2) Urvashi was treated in the United States by doctors
who were therefore available here to testify about the nature and
extent of her injuries; and (3) the Bhatnagars were able to
secure a letter of undertaking by Surrendra in the United States
-- after the suit was filed -- when the APJ KARAN dropped anchor
in the Port of Philadelphia.
Given these circumstances, it is hardly surprising that
Surrendra argued to the district court that this case should be
heard in India, rather than the United States. Surrendra
contended that the case had a close factual nexus with India and
an absence of ties to the United States. The company also
submitted an affidavit of an Indian law expert noting that India
has a well-developed legal system which would be able to handle
the issues presented in this case. Furthermore, although in
effect conceding that the Indian legal system moves much less
expeditiously than our domestic courts, Surrendra submitted
another affidavit stating that if the case were refiled in India,
it would join in petitioning the appropriate judicial officer for
expedited hearing of the matter, and that it would not file any
unnecessary pleadings or requests that would impede the case.
Surrendra's legal expert, moreover, opined that because of
Urvashi's young age, the Calcutta High Court (which would hear
the case) "would undoubtedly grant an `expedited hearing'
request" if the parties made such a motion. Joint Appendix
("J.A.") 240. Despite Surrendra's arguments, however, the
district court refused to dismiss.
Surrendra complains that the district court abused its
discretion not only when it failed to grant this original motion,
but also when it rejected Surrendra's motion for reconsideration
and, later, rejected a second motion seeking reconsideration
because of alleged discovery abuses by the Bhatnagars. We
conclude that none of Surrendra's contentions has merit.
1.
A district court's determination with respect to forum
non conveniens "may be reversed only when there has been a clear
abuse of discretion; where the court has considered all relevant
public and private interest factors, and where its balancing of
these factors is reasonable, its decision deserves substantial
deference." Lacey v. Cessna Aircraft Co., 932 F.2d 170, 178 (3d
Cir. 1991) (Lacey II), quoting Piper Aircraft Co. v. Reyno, 454
U.S. 235, 257 (1981). Certainly, our case law demands that we
accord deference even to a trial court's decision to refuse to
exercise its lawful jurisdiction, dismiss on grounds of forum non
conveniens and deny the plaintiff the opportunity to litigate in
a United States court. Our deference should be at least as
great, if not greater, when a district court decides not to
dismiss.3 The district court is capable of measuring its own
3
. A rough suggestion of the deference accorded district court
decisions rejecting motions to dismiss on the ground of forum non
conveniens is found in the case law: while hundreds of forum non
conveniens decisions have been reported over the years, one
article concluded that, as of March 1991, only six reported
decisions involved pretrial decisions not to dismiss. See Note,
Review and Appeal of Forum Non Conveniens and Venue Transfer
Orders, 59 Geo. Wash. L. Rev. 715 at 727-28 (1991). "Only once
did an appellate court reverse the denial of a motion to dismiss
for forum non conveniens." Id. at 728 (footnotes omitted). That
case was Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876 (5th Cir.
1987), a case very different from the one before us. In
Gonzalez, "the overwhelming majority" of the witnesses were in
the alternative jurisdiction, and the Fifth Circuit found there
would be difficulties in enforcing a judgment against the
defendant in the United States. Gonzalez, 832 F.2d at 879.
Here, by contrast, Urvashi and her mother, as well as Urvashi's
treating physician, were present in the United States, and the
letter of undertaking would make it possible to enforce a
judgment against Surrendra in the United States. Even more
importantly, in Gonzalez there was no issue of whether the
alternative forum in that case (Peru) was adequate. As noted
infra pp. 15-23, here that issue is dispositive.
docket and assessing the practical administrative difficulties
that may flow from denying such a motion. Indeed, while we may
be able to provide some perspective on the systemic consequences
of individual denials of forum non conveniens motions -- in terms
of future case load and other administrative difficulties that
may result -- we are aware of no evidence suggesting that
district courts are unable similarly to take the long view of a
particular situation. To the contrary, we believe that district
courts are well aware of the caseload pressures they face and
rather zealous in their efforts to control their ever-burgeoning
responsibilities. Given the incentives that press our district
courts to reduce their caseload, we should take particular care
before second-guessing a district court that rejects a forum non
conveniens motion after considering the factors that we and the
Supreme Court have deemed relevant.
The factors to be evaluated in assessing whether to
dismiss for forum non conveniens are by now familiar. First --
and of dispositive significance here -- a district court cannot
dismiss on forum non conveniens grounds if that decision would
render a plaintiff unable to pursue his or her action elsewhere.
That is, since a district court entertaining a forum non
conveniens motion has jurisdiction over the dispute, it is only
when some other forum that would also have jurisdiction is better
suited to adjudicate the controversy that a district court may
exercise its discretion and dismiss the case. See Gulf Oil Corp.
v. Gilbert, 330 U.S. 501, 506-07 (1947) ("In all cases in which
the doctrine of forum non conveniens comes into play, it
presupposes at least two forums in which the defendant is
amenable to process; the doctrine furnishes criteria for choice
between them"). Thus, as we explained in Lacey v. Cessna
Aircraft Co., 862 F.2d 38 (3d Cir. 1988) (Lacey I), at the outset
of its analysis, "[a] district court entertaining a forum non
conveniens motion must first decide whether an adequate
alternative forum exists to hear the case." Id. at 43.
Provided that an adequate alternative forum is
available, the district court must address an additional
threshold issue when the case is brought by a foreigner --
namely, the amount of weight that should be accorded to the
plaintiff's decision to sue in the United States.4 Then, "the
district court must consider and balance several private and
4
. Ordinarily, a plaintiff's choice of forum is entitled to
great deference, but the amount of deference is lessened when a
foreigner has brought suit because we are more skeptical of a
foreigner's claim that a United States forum is in fact the most
convenient forum available. Piper Aircraft Co. v. Reyno, 454
U.S. 235, 255 (1981). The fact that a plaintiff is a foreigner
does not disqualify him or her from suing in the courts of the
United States, nor does it mean that his or her decision to sue
in the United States is entitled to no deference. "Piper[
Aircraft]'s language about according less deference to a foreign
plaintiff's forum choice is `not an invitation to accord a
foreign plaintiff's selection of an American forum no deference
since dismissal for forum non conveniens is the exception rather
than the rule.'" Lacey v. Cessna Aircraft Co., 862 F.2d 38,
45-46 (3d Cir. 1988) (Lacey I), quoting and adding emphasis to In
re Air Crash Disaster Near New Orleans, Louisiana on July 9,
1982, 821 F.2d 1147, 1164 n.26 (5th Cir. 1987). Although we have
acknowledged that the deference evaluation cannot be done with
mathematical precision, the district court must provide some
reasoned indication of how much deference it is according to the
particular foreign plaintiff's decision to sue in the United
States. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 179 (3d Cir.
1991) (Lacey II).
public interest factors that are relevant to the forum non
conveniens determination." Lacey I, 862 F.2d at 43.5 It is the
defendant's burden to demonstrate that forum non conveniens
dismissal is warranted. E.g., Lacey I, 862 F.2d at 43-44; Gulf
Oil, 330 U.S. at 508. Surrendra failed to carry that burden
because it did not make its threshold demonstration that an
adequate alternative forum was available for this litigation.
The Bhatnagars argued in the district court that India
did not constitute an adequate alternative forum because its
court system was in a state of virtual collapse. Plaintiffs
submitted affidavits from Marc S. Galanter and Shardul Shroff in
5
. Certain of these factors were identified in Gulf Oil Corp.
v. Gilbert, 330 U.S.501 (1947). The private interest factors
include such considerations as "the relative ease of access to
sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if view
would be appropriate to the action," and other factors "that make
trial of a case easy, expeditious and inexpensive." Id. at 508.
With respect to the public interest factors, the Supreme
Court has noted that courts should be wary of increasing the
congestion in domestic courts and forcing jury duty upon those
who have no relation to or interest in a particular controversy.
Gulf Oil, 330 U.S. at 508-09. Additionally, courts should prefer
to have cases adjudicated in the forum familiar with the law to
be applied, instead of taking it upon themselves to become
educated about foreign law. Id. at 509. We have further
explained that "[i]n evaluating the public interest factors the
district court must `consider the locus of the alleged culpable
conduct, often a disputed issue, and the connection of that
conduct to plaintiff's chosen forum.'" Lacey I, 862 F.2d at 48,
quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988).
The Supreme Court has cautioned, however, that the list of
public and private factors in Gulf Oil "is by no means
exhaustive, and some factors may not be relevant in the context
of a particular case." Van Cauwenberghe, 486 U.S. at 528-29.
support of this contention (respectively, the "Galanter Aff." and
the "Shroff Aff."). Surrendra responded by proffering the
affidavit of Talat M. Ansari, who stated that there are numerous
ways in which litigation can be expedited in India, including
appointment of special judges, intervention by the Supreme Court
of India or State High Court, or even requests by the parties for
expedition. J.A. 240. Furthermore, Ansari stated that "given
the tender age of the child, the Calcutta High Court (which would
be the court in which the action would have to be filed, given
the amount of compensation claimed) would undoubtedly grant an
`expedited hearing' request." Id. Surrendra also offered the
affidavit of Captain Khosla, the company's General Manager, who
promised that if the district court dismissed this case Surrendra
would cooperate in seeking expedited treatment of any suit
brought by the Bhatnagars in India.
The district court agreed with the Bhatnagars.
Crediting their legal experts, the court found that the Indian
legal system has a tremendous backlog of cases -- so great that
it could take up to a quarter of a century to resolve this
litigation if it were filed in India. J.A. 15-16. Finding that
"this remedy is inadequate and unsatisfactory," the court ruled
that dismissal was inappropriate. Id at 17.6
6
. Although the district court also evaluated the Bhatnagars'
case under the private and public interest factors of Gulf Oil,
we do not reach that analysis because of our affirmance on the
threshold issue of whether an alternative forum is available.
Surrendra contends on appeal that this analysis
constituted an abuse of discretion for two central reasons. The
company contends that the district court committed legal error in
finding that mere litigation delay can render an alternative
forum inadequate, and that in any event the court's fact-finding
with respect to delay in the Indian legal system was clearly
erroneous. We disagree.
(a)
Surrendra's first attack focuses on the court's premise
that litigation backlog can render an alternative forum
inadequate for purposes of forum non conveniens analysis.
Surrendra argues that the alternative forum factor may be used to
deny a motion to dismiss only in "extreme cases, such as where an
action is barred by an alternative forum . . . ." Appellant-
Cross-Appellee's Br. 14. Quoting Piper Aircraft, Surrendra
contends that unless "the remedy provided by the alternative
forum is so clearly inadequate or unsatisfactory that it is no
remedy at all" (Piper Aircraft, 454 U.S. at 254), the alternative
forum must be deemed to be adequate. Appellant-Cross-Appellee's
Br. 14. Thus, although Surrendra does not say so in as many
words, it apparently believes that the district court committed
legal error in finding that mere delay can render the Indian
court system inadequate for purposes of a forum non conveniens
inquiry.
The Supreme Court in Piper Aircraft stated that the
alternative forum requirement "[o]rdinarily . . . will be
satisfied when the defendant is `amenable to process' in the
other jurisdiction." Piper Aircraft, 454 U.S. at 254 n.22,
quoting Gulf Oil, 330 U.S. at 506-07. Yet the Court qualified
this statement:
In rare circumstances, however, where the
remedy offered by the other forum is clearly
unsatisfactory, the other forum may not be an
adequate alternative, and the initial
requirement may not be satisfied. Thus, for
example, dismissal would not be appropriate
where the alternative forum does not permit
litigation of the subject matter of the
dispute.
Id. (emphasis added).
We have never addressed the issue of whether litigation
delay could render an alternative forum so "clearly
unsatisfactory" as to be inadequate. Nor has the Supreme Court
or any of our sister circuits. Thus, we face an issue of first
impression.
At the outset of this discussion, it is necessary to
recognize that delay is an unfortunate but ubiquitous aspect of
the legal process. Our own courts suffer from delay, as does any
other system that attempts to accord some modicum of process.
E.g., Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 519-20 (1981)
(noting that delay is pervasive aspect of American courts); see
also Report of the Federal Courts Study Committee 5-6 (Apr. 2,
1990). Because litigation delay is so pervasive, minor delay
could not possibly serve to undermine the adequacy of an
alternative forum. Thus, we agree with those courts that have
found delays of a few years to be of no legal significance in the
forum non conveniens calculus. E.g., Brazilian Investment
Advisory Services, Ltda. v. United Merchants & Manufacturing,
Inc., 667 F. Supp. 136, 138 (S.D. N.Y. 1987) (delay of up to two
and one-half years); Broadcasting Rights Int'l Corp. v. Societe
du Tour de France, S.A.R.L., 708 F. Supp. 83, 85 (S.D. N.Y. 1989)
(delay of at least two years "and possibly longer").
At some point, however, the prospect of judicial remedy
becomes so temporally remote that it is no remedy at all.
Thus, in a variety of circumstances, we and other courts have
recognized that delay can, in extreme cases, render meaningless a
putative remedy. This principle has been recognized, for
example, in the context of habeas corpus law. In Burkett v.
Cunningham, 826 F.2d 1208 (3d Cir. 1987), we excused a state
prisoner's failure to exhaust his state-law remedies before
seeking federal habeas corpus relief on the ground that he had
suffered five and one-half years of delay in attempting to
vindicate himself in state court. Such delay, we found, "as a
matter of law excuses exhaustion" (id. at 1218), and we
reiterated the well-worn but nevertheless truthful aphorism that
"justice delayed is justice denied" (id.). The same result has
obtained in our sister circuits. E.g., Simmons v. Reynolds, 898
F.2d 865 (2d Cir. 1990) (six-year delay in state appeal excused
exhaustion requirement in federal habeas action); Harris v.
Champion, 938 F.2d 1062 (10th Cir. 1991) (four-year delay before
briefing of prisoner's state appeal and indeterminate amount of
time before appeal would be decided); Coe v. Thurman, 922 F.2d
528 (9th Cir. 1990) (three-year delay).
Similarly, it is well established in administrative law
that excessive delay may, in some circumstances, excuse
exhaustion requirements. E.g., McCarthy v. Madigan, 503 U.S.
140, 147 (1992); Coit Independence Joint Venture v. FSLIC, 489
U.S. 561, 587 (1989); Gibson v. Berryhill, 411 U.S. 564, 575 n.14
(1973). Although part of the concern voiced in such cases
undoubtedly stems from the possibility that a litigant's
subsequent court action may be prejudiced by undue postponement,
courts have also recognized the fundamental principle that a
remedy too long delayed is tantamount to no remedy at all. E.g.,
Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 591 (1926)
("[p]roperty may be as effectively taken by long-continued and
unreasonable delay in putting an end to confiscatory rates as by
an express affirmance of them").
Returning to the facts at hand with these legal
principles in mind, the delay in the Indian legal system
described by plaintiffs' experts in this case is much more than
mere minor delay of the sort long tolerated, albeit ruefully, in
courts of justice. To the contrary, the delay described by the
Bhatnagars' experts is profound and extreme. J.A. 41, 55-65
(Galanter Aff., characterizing Indian legal system as having
delays of "Bleak House dimensions"); J.A. 1368, 1374 (Shroff
Aff., quoting former Chief Justice of India as saying that Indian
legal system is "almost on the verge of collapse"). The district
court explained that, "[i]f this case is an `average' case,
Calcutta's High Court would take 15-20 years to resolve it.
Shroff Aff., p. 7. However, the case would also be subject to
another three to six years of appeals after that." J.A. 16.
Thus, "[i]f this case were to proceed in the Indian court system
it might not be resolved until [Urvashi] is an adult." J.A. 17.
Wherever the line might be drawn separating tolerable
delay from intolerable -- that is, delay that does not vitiate a
remedy and that which does -- delays of up to a quarter of a
century fall on the intolerable side of that line. Delays of
such egregious magnitude would render a remedy "clearly
inadequate" under Piper Aircraft. Thus, we agree with the
district court that delay of the magnitude described in the
Bhatnagars' experts' affidavits can render an alternative forum
inadequate as a matter of law.
(b)
Surrendra also argues, however, that regardless of
whether delay of such proportions can render an alternative forum
inadequate, the district court's fact-finding concerning delay in
India was fatally flawed in this case. Specifically, Surrendra
contends that the district court credited without question the
plaintiffs' Shroff Affidavit, while ignoring Surrendra's
affidavits from Ansari and Khosla. Appellant-Cross-Appellee's
Br. 14-15. However, keeping in mind that it was Surrendra's
burden to prove that India was a viable alternative forum, the
company's arguments are unpersuasive.
Contrary to Surrendra's contention that the district
court "unquestioningly" accepted the Shroff affidavit, the record
reflects that the district court relied on both the Shroff and
Galanter affidavits in making its fact-finding. J.A. 15 (citing
both Shroff Aff. and Galanter Aff.). Additionally, despite
Surrendra's complaints about the district court's reliance on
plaintiffs' experts' affidavits, the company fails to provide a
single reason why the Galanter and Shroff affidavits were not
worthy of credence. Thus, Surrendra's indictment of the district
court's reliance on the Bhatnagars' evidence amounts to a
plaintive assertion that "my experts were better."
In addition to failing to undermine the credibility of
the Bhatnagars' affiants, however, Surrendra also failed to
counter effectively the Bhatnagars' affidavits with evidence of
its own demonstrating that the delays in India's legal system
either were not present or would not make a suit by the
Bhatnagars in India an exercise in futility. Surrendra's expert,
Ansari, stated that there are ways that parties may expedite
litigation in India, but with one exception he did not state that
any of the methods he listed would in fact lead to expedited
treatment of a suit filed by the Bhatnagars. The sole exception
was his assertion that the Calcutta High Court "would undoubtedly
grant an `expedited hearing' request" in Urvashi's case "given
the tender age of the child . . . ." J.A. 240. Evidently, the
district court did not believe Ansari, because it held that the
Bhatnagars' suit was "an average case which would probably not
receive expedited treatment." J.A. 16.
We do not believe this ruling was clearly erroneous.
Ansari cited no legal authority for his hopeful pronouncement,
whereas plaintiffs' experts, Galanter and Shroff, provided both
statistical and anecdotal evidence documenting litigation delays
and tending to show that a suit like the Bhatnagars' would likely
not receive expedited treatment.7
Turning to the Khosla affidavit, the company contends
that the court "ignored" this evidence, but that also is simply
not true. Khosla stated that if the Bhatnagars' suit were
brought in India, Surrendra would cooperate in seeking expedited
treatment of the matter and would not take actions that would
unnecessarily interfere with swift resolution of the case. He
also stated that if Surrendra failed to meet his promises, the
company agreed that the district court could reassume
jurisdiction over the case. As Surrendra is forced to concede
(Appellant-Cross-Appellee's Br. 16), however, the district court
acknowledged on the record that it had reviewed the Khosla
affidavit and "recognize[d] that the defendants would not delay
and would cooperate in requesting the Court to hear the matter
expeditiously" in India (J.A. 285). The court was unpersuaded by
this evidence, noting that even though Surrendra had promised to
cooperate, "there's nothing that gives me comfort that the matter
would be heard in India within a reasonable time." J.A. 285. It
7
. See Galanter Aff., J.A. 60-63 (noting backlog); id. 63-65
(average duration of reported tort suits 1975-84 was 12 years and
nine months); id. 68-70 (results of Bhopal litigation "gives
little reason to believe that the Indian courts presently afford
an adequate forum for an ordinary personal injury case like this
one"); Shroff Aff., J.A. 1375 (stating that if suit were filed in
Calcutta High Court it would "normally" take "about 15-20 years
before it is finally disposed of since, at present, there are
only two judges who are singly hearing suits and proceedings for
final disposal"); id. (quoting retired Chief Justice of India in
1985 speech as noting that "[t]he delay in the disposal of cases
has affected not only the ordinary type of cases but also those
which, by their very nature, call for early relief").
is clear from the record, therefore, that far from "ignoring" the
Khosla affidavit, the district court concluded that Surrendra's
promise to cooperate in trying to expedite litigation in India
did not amount to proof that the litigation would avoid the
unreasonable delays that plaintiffs' experts said were endemic in
that judicial system. Thus, it was not clearly erroneous for the
district court to decide that India was not an adequate
alternative forum based on the evidence before it.
(c)
Surrendra contends that "[e]very other court which has
considered this issue has found that India courts do provide an
adequate alternative forum in the forum non conveniens context."
Appellant-Cross-Appellee's Br. 17. Even if that were so, it
would be irrelevant to the issue of whether Surrendra met its
burden of proof on the issue here. We note, however, that the
cases relied upon by Surrendra are factually distinguishable. In
In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in
Dec., 1984, 809 F.2d 195 (2d Cir. 1987), the court merely found
that the district court's finding that India was a reasonably
adequate alternative forum did not constitute clear error. Id.
at 202-03. Significantly, the district court in that case had
found that India was an adequate alternative forum only because
it expected that the Indian Government would not treat the
litigation arising from the Bhopal tragedy "in ordinary fashion,"
given that it was the "most significant, urgent and extensive
litigation ever to arise from a single event . . . ." In re
Union Carbide Corp. Gas Plant Disaster at Bhopal, India in
December, 1984, 634 F. Supp. 842, 848 (S.D. N.Y. 1986).8
8
. In the only other case cited by Surrendra which
specifically addressed litigation delay in India, the court noted
that the plaintiff's evidence of delay consisted of "one
newspaper article, which includes anecdotal references to
congestion in Indian courts." Chhawchharia v. Boeing Co., 657 F.
Supp. 1157, 1160 (S.D. N.Y. 1987). Such meager support is
nowhere near as extensive as the evidence submitted by the
Bhatnagars in this case. Furthermore, in both Chhawchharia and
R. Maganlal & Co. v. M.G. Chemical Co., Inc., No. 88 Civ. 4896
(MJL), 1990 WL 200621 (S.D. N.Y. 1990), also cited by Surrendra,
the district courts relied upon In re Union Carbide Corp. Gas
Plant Disaster, 809 F.2d 195 (2d Cir. 1987), for the proposition
(d)
(..continued)
that India provided an adequate alternative forum. As noted in
the text, relying on that case for that proposition is at least
misleading, given the special circumstances of the Bhopal
disaster litigation and the other significant factors that formed
the basis of the decision. Surrendra's other putative precedents
are similarly unpersuasive. There is no suggestion that the
issue of delay was briefed in Neo Sack, Ltd. v. Vinmar Impex,
Inc., 810 F. Supp. 829 (S.D. Tex. 1993), or Vaz v. United States
Surgical Corp., No. B-90-328 (WWE), 1991 WL 47341 (D. Conn.
March 13, 1991), neither of which expended any significant effort
in determining the adequacy of India's legal system as an
alternative to litigation in the United States. Surrendra also
cites ETPM v. Noble Drilling Corp., No. H-92-0682 (S.D. Tex.
Jan. 12, 1993), but does not even provide us with a copy of the
case, so that we could not rely upon it even if we were disposed
to credit an unpublished and unreported district court decision
from another circuit.
We should not be read to conclude that the courts of
India are always inadequate fora, making forum non conveniens
dismissal inappropriate whenever an Indian national sues in the
United States. That is neither the thrust nor the end point of
our analysis. In reaching its conclusion that India was an
inadequate alternative forum in this case, the district court was
essentially concluding that Surrendra had not met its burden of
proof on that threshold issue. We agree.9 It may well be that
the next defendant to face the same issue faced by Surrendra
would reach a different result because it would marshal more --
or better -- proof. Furthermore, another district court
presented with the same raw evidence might reach different
factual conclusions, and we might be constrained under our
lenient standards of review to affirm in that case, as well.
Here, however, the district court did not commit legal error in
concluding that delay can render a putative alternative forum
clearly inadequate. Nor did it commit clear error in its factual
findings relating to the issue of delay. That being so, we are
constrained to affirm the district court's exercise of discretion
9
. While defending the district court's finding that India is
an inadequate alternative to the United States because of the
delays endemic in the Indian legal system, on appeal the
Bhatnagars also argue that we can affirm the district court's
finding in this respect on an alternative ground. According to
the Bhatnagars, their claims are now time-barred in India; thus,
they argue, "the court [sic] in India cannot hear the case since
the statute of limitations has expired and cannot be waived."
Appellees-Cross-Appellants' Br. 10. Because we have found that
the district court did not abuse its discretion in ruling that
India was an inadequate forum based on the evidence of delay
presented to that court, we do not reach the Bhatnagars' statute
of limitations argument.
under which it retained jurisdiction over this case and
adjudicated the Bhatnagars' claims.
2.
Ten days after losing the forum non conveniens motion,
Surrendra submitted a motion for reconsideration which included
the unsworn declaration of Shri Venkiteswaran pursuant to 28
U.S.C. § 1746. J.A. 289.10 Venkiteswaran agreed with the
plaintiffs' experts on Indian law that "if no order for
expedition is made there could be" significant delay -- "anywhere
between 10 and 12 years in Bombay and about 10 to 15 years in
Calcutta" -- before the Bhatnagars' claims were resolved. J.A.
292. However, Venkiteswaran disagreed with Surrendra's own
original India law expert (Ansari) as well as both of plaintiffs'
experts by stating that, contrary to the assumptions of those
experts, the Bhatnagars' case could be adjudicated in India as an
admiralty case. Id. Treating the suit as an admiralty action,
Venkiteswaran stated, would reduce the delay to "4 to 5 years if
the plaintiffs pursue their action diligently and if the
defendants are not obstructive in having the matter heard." Id.
In its motion for reconsideration, Surrendra argued that the
Venkiteswaran affidavit demonstrated that the court had erred in
finding that India was an inadequate forum, and that the court
had abused its discretion in evaluating the public and private
interest factors implicated by the case. Alternatively,
10
. 28 U.S.C. § 1746 permits parties to submit unsworn
declarations in lieu of sworn statements in certain
circumstances.
Surrendra requested that the district court certify the forum non
conveniens issue for immediate review. The district court denied
this motion without a written opinion, noting in its order that
"[t]he court considered the factors mentioned in the Motion in
reaching its original conclusion." J.A. 22.
Surrendra contends on appeal that the district court
abused its discretion in failing to change its mind and dismiss
this case on forum non conveniens grounds in the face of
Surrendra's new evidence.11 We disagree for two reasons. First,
Surrendra's motion for reconsideration strikes us as a classic
attempt at a "second bite at the apple." Having failed in its
first effort to persuade the court to dismiss on forum non
conveniens grounds, Surrendra simply changed theories and tried
again, contradicting its earlier evidence with its factual
support for the new theory. We have explained that although we
are not "prepared to enunciate a rule precluding [a] district
court from reconsidering the issue" of forum non conveniens "on
an expanded record in all circumstances," nevertheless we "assume
that such reconsideration [will] be limited to exceptional
circumstances." Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d
604, 608 (3d Cir. 1991). Whatever other circumstances may
11
. In its brief, Surrendra also suggests that, in the
alternative, the district court should have granted the company's
request for interlocutory review of the forum non conveniens
decision under Fed. R. Civ. P. 54(b). Appellant-Cross-Appellee's
Br. 18 n.1. The company does not appeal the denial of
certification, however, so we need not address the knotty
question of whether we could take jurisdiction over a denial of
Rule 54(b) certification. See Republic of the Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 81 (3d Cir. 1994).
justify reconsideration, mere presentation of arguments or
evidence seriatim does not. See Brambles USA, Inc. v. Blocker,
735 F. Supp. 1239, 1240 (D. Del. 1990) (reargument "should not be
used as a means to argue new facts or issues that inexcusably
were not presented to the court in the matter previously
decided").
In any event, the district court was entitled to
disbelieve the Venkiteswaran declaration. Venkiteswaran
contradicted the Ansari affidavit, which -- according to
Surrendra in its earlier papers -- had accurately stated the law.
Thus, the district court may reasonably have concluded that the
putative new "expert" testimony was of no evidentiary value.
Furthermore, Venkiteswaran provided the district court with no
citation to legal authority suggesting that his conclusion that
the Bhatnagars could bring an admiralty action in India was
entitled to any weight. Given the incompatibility of his
testimony with that of Ansari and the Bhatnagars' experts, the
district court may reasonably have concluded that it should not
credit the newly proffered opinion. We cannot conclude that the
district court abused its discretion in denying the motion for
reconsideration.
3.
After denial of the motion for reconsideration,
discovery proceeded apace for another two and one-half months.
Then, on the day after the Bhatnagars' trial brief was submitted,
Surrendra filed a Motion for Relief from the Order Denying
Claimant's Motion to Dismiss on Grounds of Forum Non Conveniens.
See J.A. 9. In this motion, Surrendra again contended that the
district court should reconsider the motion to dismiss. This
time, Surrendra premised its request for relief on allegations
that the Bhatnagars, in a wilful abuse of discovery, had
misrepresented their immigration status to Surrendra and the
court. In fact, Surrendra contended, the Bhatnagars had been
illegal aliens when they first brought their action in
Pennsylvania. Had the Bhatnagars not wilfully misrepresented
their immigration status to the court, the company claimed, the
court would have granted the forum non conveniens motion because
the withheld information would have negated the court's findings
of fact -- namely, that Urvashi intended to reside in the United
States until all medical treatment was completed and that she
sought to remain permanently in the United States, if permitted.
Surrendra apparently also contended that the motion to dismiss
should be reconsidered and granted as a sanction for the
Bhatnagars' bad faith during discovery.
The district court rejected this third bite at the
apple, noting that this case was "not an immigration appeal."
J.A. 26. Furthermore, although the court stated that the
"court's role is not to determine . . . whether the plaintiffs
reside here legally," the court explained that it had "considered
the possibility that the minor plaintiff could be deported" at
the hearing on Surrendra's initial motion to dismiss. Id.
(Indeed, the court had done so, apparently aware at that time
that the plaintiffs were potentially residing in the United
States illegally. J.A. 272.) Additionally, relying on Hagl v.
Jacob Stern & Sons, Inc., 396 F. Supp. 779, 784 (E.D. Pa. 1975),
the court ruled that "even if the minor plaintiff is an illegal
alien, she still has the right to use this country's courts to
sue those persons who allegedly physically injured her."
J.A. 26.
The district court did not abuse its discretion in
denying this second motion for reconsideration, which amounted to
a third motion to dismiss on the ground of forum non conveniens,
and which asserted grounds already briefed to the district court.
Reconsideration "should not be granted where it would merely
`allow wasteful repetition of arguments already briefed,
considered and decided.'" Brambles USA, 735 F. Supp. at 1240,
quoting Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D. N.Y.
1989). Furthermore, despite Surrendra's protestations of bad
faith and lack of candor by the Bhatnagars, the evidence does not
compel the conclusion that the Bhatnagars acted with bad faith,
and the district court found no such bad faith. In short,
Surrendra has provided no reason to upset the district court's
discretionary decision to deny this final motion for
reconsideration.
B.
Turning to the merits of the trial, Surrendra next
contends that the court erred in finding the company negligent
under Indian law.12 Surrendra's challenge takes two forms.
First, the company alleges that the court erred in finding that
liability could be imposed upon the company on the ground that
Surrendra's duty officer should have known of Urvashi's presence
on the bridge at the time of the accident. Alternatively,
Surrendra argues that the court erred in denying Surrendra's
motion for a directed verdict on the ground that there was
insufficient evidence either that Surrendra's steward and
helmsman had acted within the scope of their employment or that
the duty officer had become aware of Urvashi's presence on the
bridge. Surrendra's arguments, however, leave us unpersuaded.
12
. In their cross-appeal, the Bhatnagars contend that the
district court erred in concluding that Indian law applied. They
reason that because Indian and American law are essentially
identical with respect to principles of negligence, the court did
not have to find that Indian law applied because there was no
"true conflict" of law. See Coons v. Lawlor, 804 F.2d 28, 30 (3d
Cir. 1986). We agree with the Bhatnagars that Indian and
American negligence law are essentially the same with respect to
duty, breach, cause-in-fact and proximate cause, as well as how
one determines the scope of the duty owed by the defendant to the
plaintiff, if any. However, as we discuss infra pp. 33-36,
Indian courts award damages in a manner different from American
courts. Thus, the district court did not err in making a choice
of law inquiry. Furthermore, despite the Bhatnagars' contentions
to the contrary, it is clear that, under Lauritzen v. Larsen, 345
U.S. 571 (1958), Indian law applies to this dispute. The law of
the flag and the allegiance of the parties to India at the time
of the accident point strongly towards the application of Indian
law, and the Bhatnagars' subsequent sojourn in the United States
does not create sufficient counterbalance to require application
of domestic law to the dispute.
The district court made the following findings of fact
relevant to this portion of the appeal:
16. On March 17, 1991, the ship's steward, Mr. Abdul
Mutalib, took the plaintiff, Urvashi, to the
bridge of the vessel.
17. At the time in question the duty watch officer was
on the bridge together with the duty helmsman.
The duty watch officer's duties included enforcing
the ship's rules that the Bridge of the ship was
off limits to all unauthorized persons.
18. At approximately 4:00 p.m. while the plaintiff and
Mr. Mutalib were on the bridge, the helmsman
picked up plaintiff Urvashi and placed her on a
ledge in front of the clear view screen on the
bridge. . . .
20. The helmsman of the vessel showed the minor
plaintiff how to put her hand on the clear screen
a [sic] part of a "game." He feigned putting the
palm of his hand on the clear screen [sic] and
asked her to do likewise. When minor plaintiff
placed her hand on the clear view screen, her
right hand and portions of her arm were injured.
The helmsman fainted on the bridge.
21. The defendant admits that the acts of the helmsman
and steward were negligent. The steward was
taking tea to the duty officer on the bridge at
the time just before the accident.
22. The duty officer, who is in charge of the bridge,
did not stop the helmsman and steward from acting
negligently. The duty officer should have known
of their permitting the minor plaintiff to play on
the bridge.
23. The duty officer, acting for the defendant,
breached a duty of care owed to plaintiffs [sic]
by permitting plaintiff to be on the bridge, an
unauthorized area, and on the ledge in front of
the clear view screen. The duty officer should
have known of the minor plaintiff's presence on
the bridge.
24. The duty officer's failure to stop the helmsman's
and steward's negligent acts was a substantial
factor in bringing about the harm to the
plaintiff.
25. Plaintiff's injury was proximately caused and
caused in fact by defendant's breach of duty owed
to plaintiff.
26. It was reasonably foreseeable to the duty officer
that plaintiff was in danger of sustaining injury
on the bridge in general and on the ledge in front
of the clear view screen in particular.
J.A. 31-33. As these findings of fact indicate, the district
court found that the duty officer had a duty to prevent Urvashi
and other unauthorized persons from being on the bridge and to
enforce safety precautions during his watch. This finding is
amply supported in the record by the unambiguous testimony of the
Captain of the APJ KARAN. J.A. 1055. The duty officer breached
that duty by failing to act in a manner that would have permitted
him to avert the negligent actions of the steward and helmsman.
Contrary to Surrendra's argument, the district court's
decision did not constitute a finding of strict liability. In
fact, we find Surrendra's contention quite puzzling. It is
permissible to find that someone breached a duty of care owed to
another without actually knowing that a victim has been harmed
until after the fact, so long as a reasonable person would know
that acting or failing to act would create an unreasonable risk
of harm to a class of persons that includes the plaintiff. See
generally Restatement (Second) of Torts § 281, comment "c"
(1965). Surrendra concedes that under Indian law, like American
law, negligence
consists in the neglect of ordinary care or
skill towards a person to whom the defendant
owes a duty of observing ordinary care . . .
the standard of care which would determine
whether or not there has been a breach of
duty is that of a reasonable person who must
be presumed to have foreseen the consequence,
or at least, ought to have seen it.
Appellant-Cross-Appellee's Br. 37. Under this standard, the
district court could properly conclude that, had the duty officer
(Surrendra's agent, acting within the scope of his employment)
reasonably fulfilled his duty to enforce the rules of the bridge,
Urvashi would not have been harmed. Thus, the district court did
not err in finding Surrendra liable.
Furthermore, because of this conclusion, it was
entirely proper for the district court to reject Surrendra's
motion for directed verdict based on the sufficiency of the
evidence. It did not matter whether the plaintiffs had
established that the steward and helmsman were acting within the
scope of their employment.13 Nor did it matter whether there was
evidence that the duty officer actually knew of Urvashi's
presence on the bridge, given that the district court had
reasonably concluded that if the duty officer had been performing
his job properly, she would not have been. Thus, the district
court did not err in denying the motion for a directed verdict.
13
. Although we see no reason why the court could not have
concluded that Surrendra was liable through the actions of the
helmsman and steward, the court made no findings to that effect.
C.
Surrendra next contends that the district court erred
in awarding Urvashi a total of $189,331.00 in damages, including
$39,133 in pecuniary losses and $150,000 in non-pecuniary losses,
"including pain and suffering, disability, disfigurement, loss of
enjoyment of life, mental anguish and emotional injury, past,
present and future as a result of the accident . . . ." J.A. 37.
According to the company, the district court's non-pecuniary
damages award was grossly excessive under Indian law.14 We agree
with Surrendra that the district court erred in its application
of Indian damages principles regarding non-pecuniary damages.
Under Indian law, three principles govern awards of
"non-pecuniary" or "general" damages: "(1) Compensation must be
reasonable and must be assessed with moderation[;] (2) Regard
must be had to awards in comparable cases[; and] (3) sums awarded
should, to a considerable extent, be conventional." J.A. 1444
(Opinion of S.C. Pratap (Sept. 16, 1993));15 J.A. 1397 (Affidavit
of Shardul S. Shroff (Sept. 30, 1993)) ("Shroff Aff. II") As the
experts for the Bhatnagars and Surrendra agree, in applying these
14
. Surrendra does not appear to contest the district court's
award of $39,133.00 in pecuniary damages. See Appellant-Cross-
Appellee's Third Step Reply Br. 21. In any event, we find no
error in the district court's award of pecuniary damages. See,
e.g., J.A. 1443 (discussing permissible pecuniary damages under
Indian law).
15
. This document, an opinion by a former judge of the High
Court of Bombay and ex-Chief Justice of Andhra Pradesh, was
accompanied by an unsworn declaration of Shri Venkiteswaran under
28 U.S.C. § 1746 (see J.A. 1466), and is admissible under Fed. R.
Civ. P. 44.1 for purposes of determining the law of India.
principles Indian courts attempt to make awards comparable and
uniform among Indian tort victims. J.A. 1398 (Shroff Aff. II);
1448 (Pratap Opinion). Thus, Urvashi was entitled to an award of
non-pecuniary damages, but she was not entitled to an award
comparable to what a similarly situated American would receive in
this country. Rather, the district court should have sought to
award an amount comparable to what a similarly situated plaintiff
would have received in India.16
Viewed in this light, the district court's award of
$150,000 in non-pecuniary damages may be grossly excessive. One
American dollar in early 1995 is worth approximately 31.39
rupees.17 Thus, the district court's award, in rupees, was in
the neighborhood of Rs. 4,708,500. The parties' experts have
provided a number of examples of compensation by Indian court
victims for various personal injuries, but the highest award
mentioned is less than 20 percent of the amount awarded in this
16
. As the Supreme Court explained in Lauritzen v. Larsen, 345
U.S. 571 (1952), "[t]he purpose of a conflict-of-laws doctrine is
to assure that a case will be treated in the same way under the
appropriate law regardless of the fortuitous circumstances which
often determine the forum." Id. at 591.
17
. The Wall Street Journal (Feb. 28, 1995) p. C6. Of course,
the relevant exchange rate is actually the one in effect on the
date of the verdict and judgment in the district court. However,
Surrendra asserted that the exchange rate of rupees to dollars
was "more than" 31:1 during the relevant period (Appellant-Cross-
Appellee's Br. 42, and the Bhatnagars do not contest this
assertion. Thus, the calculation in the text is a reasonable
approximation of the value of the district court's award in
rupees.
case, and it was awarded for an injury that was much more serious
than that suffered by Urvashi.18
Because the award in this case was so disproportionate
to the amounts awarded in other Indian tort cases, we will vacate
the award of non-pecuniary damages and remand with instructions
to reassess those damages in accordance with Indian law. We
leave it to the district court to determine whether there is
sufficient material in the record to make that determination, or
whether supplemental briefing and evidence will be necessary.19
18
. The amounts awarded in the cases cited by the Bhatnagars'
damage expert, Shroff, range from 5500 rupees (for damage to a
left arm) to 143,400 rupees (for an "arm injury"), although in
neither of these extreme cases does Shroff note whether the
figure is for both pecuniary and non-pecuniary damages, or only
non-pecuniary. J.A. 1400. Surrendra's damages expert, Pratap,
describes a great many more cases with a broader range of awards
(id. 1448-56), but the largest award listed was 857,352 rupees,
awarded to a former judge who was injured in an automobile
accident and suffered 100 percent disability and paraplegia below
the waist.
19
. We also note an apparent scrivener's error in the district
court's rendition of judgment: also the court's award amounts to
only $189,133 ($39,133 + $150,000), the court's judgment was
rendered in favor of Urvashi Bhatnagar for $189,331. J.A. 40.
Since we are vacating this judgment so that the district court
can properly determine non-pecuniary damages under Indian law,
the typographical error is of no moment because the district
court will undoubtedly correct its calculation upon remand.
III.
We have already addressed and rejected one of the
contentions raised in the Bhatnagars' cross-appeal -- namely,
that the district court erred in concluding that the law of India
applied in this case. See supra n.12. However, the Bhatnagars
also argue that the court erred in failing to award damages to
Kalpana Bhatnagar, and that the court erred in rendering a
"clearly inadequate" award in favor of Urvashi.20 We address
these contentions below.
20
. The Bhatnagars also contend that the district court erred
in admitting certain testimony of the Captain of the APJ KARAN
which the Bhatnagars contend was hearsay. However, given that
this testimony pertained to the finding of negligence against
Surrendra, and given that we have affirmed that finding of
negligence, we find that this claim of error is moot.
A.
The district court found that Kalpana Bhatnagar had
"not demonstrated a loss of service as a result of plaintiff
Urvashi's injury." J.A. 37. In their cross-appeal, the
Bhatnagars contend that this finding was erroneous, but they
provide no evidence that damages for loss of services are
compensable under Indian law (see Appellees-Cross-Appellants' Br.
43-45), whereas Surrendra's expert opined that Kalpana's claim is
"unsustainable" under Indian law (J.A. 1458). Furthermore, the
Bhatnagars failed to demonstrate that Kalpana lost any of
Urvashi's services, even assuming that compensation for such loss
is cognizable under Indian law. For these two independent
reasons, the district court did not commit error in denying
Kalpana recovery.
B.
The Bhatnagars also contend that the district court
erred in awarding a "clearly inadequate" award in favor of
Urvashi. Their argument, however, is confined to the district
court's "non-pecuniary" award, which we have already explained in
section II(C) must be vacated and remanded for redetermination
because of its excessiveness under Indian law. We reject the
Bhatnagars' claim that Urvashi's award was inadequate for the
reasons we noted in finding that the award was grossly excessive
under Indian law.
IV.
Prophets of litigation doom may contend that our forum
non conveniens analysis in this case will cause a flood of
litigation as foreigners rush to the United States to bring
claims that have nothing to do with our nation, our people or our
business. We recognize that the possibility of securing a trial
before an American jury, under American law, provides a strong
draw to foreigners. Indeed, the Supreme Court itself has
recognized that our courts are "extremely attractive to foreign
plaintiffs." Piper Aircraft, 454 U.S. at 252.
Still, we are not troubled by the precedential effect
of our decision. A careful reading of section II(A) makes clear
just how narrow and unusual are the facts and circumstances of
this case. Additionally, it is likely that future defendants
will develop a record (if such can be made) adequate to support
dismissal in similar circumstances. Finally, we have confidence
that our district courts well understand the weight of their
dockets and will not hesitate to dismiss those actions that have
no business being before them. Of course, if they do not, we
will exercise our superintendence at that time, but we see no
reason to reverse a defensible decision to retain jurisdiction in
the face of a claim of forum non conveniens based upon mere
speculation that our courts may have to exercise their discretion
more often in the future.
The judgment of the district court will be affirmed
except as to the award for non-pecuniary damages. As to the non-
pecuniary damages, the judgment of the district court will be
vacated and the case remanded to the district court to
redetermine those damages in accordance with Indian law.
Two-thirds of plaintiffs' costs will be taxed against the
defendants.
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