Brandon Hefferan v. Ethicon Endo-Surgery , 2016 FED App. 0158P ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0158p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BRANDON HEFFERAN; SABINE HEFFERAN, ┐
Plaintiffs-Appellants, │
│
│
v. > No. 15-3619
│
│
ETHICON ENDO-SURGERY INC.; JOHNSON & │
JOHNSON, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:14-cv-00911—Timothy S. Black, District Judge.
Argued: March 16, 2016
Decided and Filed: July 8, 2016
Before: BOGGS, and ROGERS, Circuit Judges; and BERG, District Judge.
_________________
COUNSEL
ARGUED: Sara Ann Strickland, MORELLI RATNER LAW FIRM PLLC, New York, New
York, for Appellants. David F. Abernethy, DRINKER, BIDDLE & REATH LLP, Philadelphia,
Pennsylvania, for Appellees. ON BRIEF: Adam E. Deutsch, MORELLI RATNER LAW
FIRM PLLC, New York, New York, for Appellants. David F. Abernethy, DRINKER, BIDDLE
& REATH LLP, Philadelphia, Pennsylvania, Susanne M. Cetrulo, CETRULO MOWERY &
HICKS, PSC, Edgewood, Kentucky, for Appellees.

The Honorable Terrence G. Berg, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 2
_________________
OPINION
_________________
BOGGS, Circuit Judge. Brandon and Sabine Hefferan, an American husband and
German wife, have lived together in Germany since 2002. They seek damages for complications
that arose when a surgical stapler manufactured by American corporation Ethicon Endo-Surgery
allegedly malfunctioned during a surgery that Brandon Hefferan underwent in Germany. The
district court granted Ethicon’s motion to dismiss on the ground of forum non conveniens in
favor of litigating in Germany. That decision was not an abuse of the court’s discretion. We
therefore affirm.
I
Since 2002, Brandon and Sabine Hefferan have lived as a married couple in Germany. In
2012, complications arose during a surgery that Brandon Hefferan underwent there. As a result,
he has allegedly endured twenty follow-up surgeries and sustained severe permanent injuries.
The Hefferans point the finger at a surgical stapler used during his initial procedure, which they
claim malfunctioned. The stapler was manufactured in Mexico by Ethicon Endo-Surgery, which
is incorporated and headquartered in Ohio.
In 2014, the Hefferans filed suit in the District of New Jersey against Ethicon and its sole
shareholder Johnson & Johnson, which is incorporated and headquartered in New Jersey
(collectively “Ethicon”). Ethicon moved to dismiss based on forum non conveniens. Instead of
ruling on the motion, the New Jersey court transferred the case to the Southern District of Ohio.
The Hefferans filed an amended complaint in the Ohio federal court stating claims for
negligence, loss of consortium, and violations of Ohio product-liability law. Ethicon again
moved to dismiss on forum non conveniens grounds in favor of proceeding in Germany. The
district court granted the motion and the Hefferans appealed.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 3
II
“Under the common law doctrine of forum non conveniens, a district court may decline
to exercise its jurisdiction, even though the court has jurisdiction and venue.” Rustal Trading
US, Inc. v. Makki, 17 F. App’x 331, 335 (6th Cir. 2001) (quotation marks omitted). Forum non
conveniens dismissal involves a three-step analysis. After the court determines the degree of
deference owed the plaintiff’s forum choice, the defendant carries the burden of establishing an
adequate alternative forum and showing that the plaintiff’s chosen forum is unnecessarily
burdensome based on public and private interests. Id. at 335–36; Zions First Nat’l Bank v. Moto
Diesel Mexicana, S.A. de C.V., 629 F.3d 520, 523–24 (6th Cir. 2010).
We review a district court’s forum non conveniens determination for abuse of discretion.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). To overturn, we must have “a definite
and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton
Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). In forum non conveniens cases, the district
court’s decision deserves substantial deference when the court has considered all relevant public-
and private-interest factors, and has balanced those factors reasonably. Estate of Thomson ex rel.
Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 364 (6th Cir. 2008).
The Hefferans appeal the grant of Ethicon’s forum non conveniens motion on three
grounds. They contend that: (1) their choice of forum was not accorded proper deference;
(2) Germany is inadequate as an alternative forum; and (3) the court erroneously weighed the
public- and private-interest factors. For reasons that follow, we uphold the district court’s order.
A
Since each forum non conveniens case “turns on its facts,” the Supreme Court has
“repeatedly rejected the use of per se rules in applying the doctrine.” Am. Dredging Co. v.
Miller, 510 U.S. 443, 455 (1994) (quotation marks omitted). Nonetheless, we have found useful
a few basic observations about a plaintiff’s choice of forum. When a domestic plaintiff initiates
a suit in his home forum, that choice is normally entitled great deference because it is
presumptively convenient for the plaintiff. Zions, 629 F.3d at 523–24. In contrast, a foreign
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 4
plaintiff’s forum choice is usually accorded less deference because the assumption of
convenience is “much less reasonable.” Piper Aircraft, 454 U.S. at 256.
“In general, the standard of deference for a U.S. plaintiff’s choice of a home forum
permits dismissal only when the defendant ‘establishes such oppressiveness and vexation to a
defendant as to be out of all proportion to plaintiff’s convenience, which may be shown to be
slight or nonexistent.’” Duha v. Agrium, Inc., 448 F.3d 867, 873–74 (6th Cir. 2006) (quoting
Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)) (alterations omitted).
Although descriptively accurate and useful in many cases, that is not an unyielding rule that
district courts must apply with equal force in every situation. Indeed, the Duha court
distinguished a case where the “somewhat attenuated” connection of an American plaintiff to the
United States justified less deference to his forum choice. Id. at 875.
The deference normally accorded an American plaintiff’s forum choice is based on the
premise that holds in some, but not all, cases that the decision to bring suit in one’s home forum
is a matter of convenience. Piper Aircraft, 454 U.S. at 255–56 (“When the home forum has been
chosen, it is reasonable to assume that this choice is convenient.”); Koster, 330 U.S. at 524
(defendants must establish “oppressiveness and vexation . . . out of all proportion to plaintiff’s
convenience”). Yet “[c]itizenship and residence are” but “proxies for convenience.” Piper
Aircraft, 454 U.S. at 256 n.24 (stating reasoning of Pain v. United Techs. Corp., 637 F.2d 775,
797 (D.C. Cir. 1980)). Although useful, they are indirect (and sometimes imperfect) estimates of
convenience. Underlying the convenience presumption is a concern that defendants will uproot
plaintiffs as a form of litigation strategy. See id. at 255 n.23 The degree of deference owed a
plaintiff’s forum choice will inevitably vary with circumstances, even among plaintiffs who
claim the United States as home. As one circuit has put it, the greater the plaintiff’s connection
to the United States “and the more it appears that considerations of convenience favor the
conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain
dismissal for forum non conveniens.” Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.
2001) (en banc); see also Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 876 (3d Cir.
2013).
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 5
This sliding convenience scale explains the disparity in deference that we have accorded
the forum choices of differently situated American plaintiffs. In Kryvicky v. Scandinavian
Airlines System, for example, an American who had been abroad for at least eight years was
living in Spain where her husband died in a plane crash. 807 F.2d 514 (6th Cir. 1986). After
reestablishing United States residency, she brought a wrongful-death action against an American
company and a foreign company. Although the court gave Kryvicky’s choice of home forum
greater deference than if she were foreign, it upheld the district court’s forum non conveniens
dismissal. Id. at 517. In a later case, Duha v. Agrium, we noted that Kryvicky’s “actual ties to
the home forum were much weaker” than those of an American plaintiff on a two-year work
assignment abroad who maintained United States residency. 448 F.3d at 875.
The district court acted within its discretion when it concluded that the Hefferans’ forum
choice is entitled to less deference than those of American plaintiffs living in the United States.
A person’s true home, the centuries-old concept of domicile, requires physical presence and
intent to remain: that is, “residence at a particular place accompanied with positive or
presumptive proof of an intention to remain there for an unlimited time.” Mitchell v. United
States, 88 U.S. 350, 352 (1874) (citation omitted); see also Restatement (Second) of Conflicts §
15(2) (1971) (domicile of choice requires “physical presence” and “an attitude of mind”);
Black’s Law Dictionary 592 (10th ed. 2014). Once established, domicile continues until it is
superseded. See Restatement (Second) of Conflicts § 19. The Hefferans advise that they “may
move back to the United States.” Yet unlike the Duha plaintiff who temporarily worked abroad
while maintaining United States residency, or even the Kryvicky plaintiff who lived abroad for at
least eight years before reestablishing United States residency, the Hefferans are still domiciled
in Germany and had been for twelve years when they filed suit. What is more, Sabine Hefferan
is a German citizen whose only apparent connection to the United States was a brief stint as a
foreign exchange student over a dozen years ago. The Hefferans have not shown that their
decision to file suit in the United States was motived by a legitimate reason such as convenience
or the ability to obtain jurisdiction over the defendants rather than tactical advantage. See
Iragorri, 274 F.3d at 72–73. The presumption of convenience therefore applies with less force to
their choice of the United States as a forum.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 6
B
An alternative forum is adequate when the defendant is amenable to process in another
jurisdiction that may remedy the alleged harm. Piper Aircraft, 454 U.S. at 254–55. In
extraordinary cases, an unfavorable difference in law is relevant to the inquiry. If the available
remedy in the alternative forum is “clearly inadequate or unsatisfactory”—for example, the
jurisdiction “does not permit litigation of the subject matter of the dispute”—dismissal would
thwart the interest of justice. Id. at 254 & n.22 (citing Phx. Can. Oil Co. v. Texaco, Inc.,
78 F.R.D. 445 (Del. 1978)). Law that is simply less favorable to the plaintiff in the alternative
forum is not so extraordinary as to render that forum inadequate. Wong v. PartyGaming Ltd.,
589 F.3d 821, 831 (6th Cir. 2009).
Ethicon has consented to service in Germany and the Hefferans do not contend that a
German court would lack subject-matter jurisdiction over their claims. Nonetheless, the
Hefferans maintain that Germany is an inadequate forum for two reasons.
1
First, Germany’s legal system operates differently than that of the United States, in ways
that make it an inadequate alternative forum according to the Hefferans. For example, the
German system employs court-appointed experts, has lower average damages awards for pain
and suffering than the United States, and lacks jury trials, party-directed pretrial discovery, and
punitive damages. That a foreign legal system has its own procedures and idiosyncrasies is to be
expected. The relevant question for purposes of forum non conveniens is whether those
differences render the possible remedy so clearly inadequate that forcing a plaintiff to bring suit
there would be unjust.
Like many civil-law jurisdictions, Germany relies on judges to investigate the facts,
appoint experts, and serve as factfinder. Geoffrey C. Hazard, Jr., Discovery and the Role of the
Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017, 1022 (1998). To be sure, the
investigatory and decision-making power of its judiciary means that tort claims are litigated
differently in Germany than the United States. But the Hefferans do not show how that would
limit their access to critical evidence, let alone deprive them of an adequate remedy if forced to
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 7
bring suit there. Nor is a forum inadequate simply because of the likelihood of lesser damages.
See Gerald Spindler & Oliver Rieckers, Tort Law in Germany 134 (2011) (“All in all, the sums
awarded for pain and suffering [in Germany] are rather modest, especially when compared with
US verdicts.”) If that were a sufficient ground to defeat the motion, then a district court might
never be within its power to dismiss a tort suit for forum non conveniens in favor of a German
court. See Smith Kline & French Lab. Ltd. v. Bloch, [1983] 1 W.L.R. 730, 733 (C.A.) (Eng.)
(“As a moth is drawn to the light, so is a litigant drawn to the United States.”). The differences
in Germany’s legal system do not reveal an alternative forum that provides a remedy “so clearly
inadequate or unsatisfactory” that it is “no remedy at all.” Piper Aircraft, 454 U.S. at 254.
2
Second, German law does not allow Sabine Hefferan to recover for loss of consortium.
The district court concluded, based on a dictum from the unpublished opinion of another circuit,
see Adams v. Merck & Co., 353 F. App’x 960, 963 (5th Cir. 2009), that inability to pursue a
claim for loss of consortium does not render a forum inadequate. We do not reach that question
because we agree with the district court’s alternative finding: Even if litigated in a United States
district court, Sabine Hefferan’s claim would be governed by German substantive law.
Like nearly all states, New Jersey recognizes a spouse’s right to sue for loss of
consortium. See Kibble v. Weeks Dredging & Constr. Co., 735 A.2d 1142, 1149 (N.J. 1999);
Black’s Law Dictionary 1088–89. According to the Hefferans’ expert (with whom Ethicon
apparently agrees), German law does not permit a comparable claim when the victim-spouse
survives. An actual conflict between New Jersey and German loss-of-consortium law raises the
question whether dismissal in favor of proceedings in Germany would result in an unfavorable
difference in law. Germany might be an inadequate alternative forum if dismissal deprives
Sabine Hefferan of a remedy that would be available if the suit remained in the United States.
See Piper Aircraft, 454 U.S. at 254–55. But that would be the case only if her right to recover
would be determined by the law of a jurisdiction that does compensate for loss of consortium,
rather than Germany’s.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 8
If the case remained in the United States, the district court would need to determine
which jurisdiction’s choice-of-law rules would dictate the law to be applied in deciding Sabine
Hefferan’s right to recover. In cases of voluntary transfer, the transferee forum applies the laws
of the transferor court. Ferens v. John Deere Co., 494 U.S. 516, 523 (1990). Thus, transfer of a
diversity action between federal district courts pursuant to 28 U.S.C. § 1404(a) does not change
the applicable choice-of-law rules in American courts—in this case, those of New Jersey.
In personal-injury cases where a conflict of laws arises, New Jersey courts apply the
“most significant relationship” test from the Restatement (Second) of Conflicts. P.V. ex rel. T.V.
v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008). In cases of actual conflict, the parties’ rights
and liabilities are decided according to the law of the jurisdiction where the injury occurred
unless another jurisdiction has a more significant relationship to the occurrence and the parties.
Ibid.; Restatement (Second) of Conflicts § 146. To determine the jurisdiction with the most
significant relationship, the Restatement takes into account:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil [sic], residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Restatement (Second) of Conflicts § 145(2). Analysis of those contacts is “not merely
quantitative.” P.V., 962 A.2d at 463. “The purpose is to determine their bearing for the guiding
touchstones of Section 6 of the Restatement, which, ‘[r]educed to their essence,’ are: ‘(1) the
interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field
of tort law; (4) the interests of judicial administration; and (5) the competing interests of the
states.’” Cornett v. Johnson & Johnson, 998 A.2d 543, 552 (N.J. Sup. Ct. App. Div. 2010)
(quoting P.V., 962 A.2d at 463).
“Ordinarily, choice-of-law determinations are made on an issue-by-issue basis, with each
issue receiving separate analysis.” Erny v. Estate of Merola, 792 A.2d 1208, 1213 (N.J. 2002).
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 9
For purposes of forum non conveniens, the district properly anticipated that a New Jersey court
would probably apply German law to this claim.1
For Sabine Hefferan’s loss-of-consortium claim, most of the contacts are clear cut. The
parties do not dispute that the alleged injury occurred in Germany where the Hefferans live. The
residence-of-the-parties factor does not clearly point toward or away from Germany. Both
appellees are incorporated and headquartered in the United States; Sabine Hefferan is a German
citizen living in Germany. To the extent the parties have a relationship, Germany appears to be
its locus. Although the stapler’s alleged defect originated in the United States or Mexico, it was
purchased and used in Germany. See Cornett, 998 A.2d at 552 (relationship between patient and
medical-device company was in state where healthcare provider received and used device). As
to the “place where the conduct causing the injury occurred,” the facts point away from
Germany, but not necessarily toward the United States alone. New Jersey courts appear to
consider only the place of the defendant’s alleged misconduct. See, e.g., P.V., 962 A.2d at 461.
In a case involving a Florida medical-device manufacturer (another Johnson & Johnson
subsidiary), a Kentucky resident died after being implanted with an allegedly mislabeled stent.
Cornett, 998 A.2d at 550. The court’s “place of the conduct” analysis focused only on the
location of the manufacturer’s “specific and identifiable activities.” Id. at 552. Ethicon’s alleged
misconduct in manufacturing a defective product occurred in Ohio and Mexico.
Germany has the most significant relationship to the parties and occurrence. The injury
occurred there and it is the place of the parties’ relationship. Sabine Hefferan is a German
citizen living at home. Although the defendants are United States corporations and the conduct
causing the injury occurred at least partially in the United States, those contacts do not outweigh
Germany’s. Moreover, the interests of comity and judicial administration favor application of
German law to a question of liability flowing from an injury that occurred within its borders
caused by a product sold and used there. See id. at 553; Restatement (Second) of Conflicts § 6.
The public-policy step of the analysis also favors litigating in Germany. The “most
significant relationship” test is not simply an exercise in adding contacts. New Jersey courts
1
Our analysis for forum non conveniens purposes does not purport to control the German court’s resolution
of conflict-of-laws issues.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 10
“identify the governmental policies underlying the law of each state and how those policies are
affected by each state’s contacts with the litigation and the parties. If a state’s contacts are not
related to the policies underlying its law, then that state does not possess an interest in having its
law apply.” Fu v. Fu, 733 A.2d 1133, 1153 (N.J. 1999) (citation omitted); see also Rowe v.
Hoffman-La Roche, Inc., 917 A.2d 767, 771–72 (N.J. 2007).
Under New Jersey law, neither Ohio nor New Jersey has an interest in protecting Sabine
Hefferan’s right to recover for loss of consortium. A state “undoubtedly has an interest in
regulating the safety of any activities in [a local] facility that might have contributed to the
injury.” Cornett, 998 A.2d at 380. But Ethicon did not manufacture the stapler in either state.
Whatever policy underlies Germany limiting spousal recovery for loss of consortium, its interest
in the claim cannot be less than those of Ohio or New Jersey.
Litigating in Germany would not result in an unfavorable change in law for Sabine
Hefferan on her loss-of-consortium claim because the federal court in Ohio would likely apply
German law. This case therefore does not present those “rare circumstances” where a forum’s
“clearly unsatisfactory” remedy renders it an inadequate alternative. Piper Aircraft, 454 U.S. at
254 n.22.
C
The onus of showing that a plaintiff’s choice of forum is unnecessarily burdensome falls
on the defendant. That inquiry is guided by public- and private-interest factors set forth by the
Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The “obligation to consider all
factors applies to each analytically distinct set of claims.” Duha, 448 F.3d at 879. The
Hefferans argue that the district court abused its discretion because, on the whole, it erroneously
weighed the factors. Although a different court may have given the factors different weight, the
district court’s balancing was not unreasonable.
1
Private-interest factors include “the relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling, and the cost of obtaining
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 11
attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy, expeditious and
inexpensive.” Gulf Oil, 330 U.S. at 508. To examine them, “the district court must scrutinize
the substance of the dispute between the parties to evaluate what proof is required, and determine
whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s
cause of action and to any potential defenses to the action.” Van Cauwenberghe v. Biard, 486
U.S. 517, 528 (1988).
Ease of Access to Sources of Proof. The charge to examine the relative ease of access to
sources of proof requires courts to dig into the substance of the dispute to assess the relevant
evidence. Ibid.; see also Iragorri, 274 F.3d at 74. The district court here found that accessing
witnesses would be easier in Germany. Most of the Hefferans’ proposed witnesses, including
“all of the medical witnesses”—five specific physicians and the “doctors and medical providers”
of two medical facilities—are in Germany. Ethicon disclosed only two witnesses with
discoverable information relating to the stapler’s design, application, and manufacture, both
apparently located in the United States.
According to the Hefferans, the district court’s analysis did not sufficiently focus on the
issues likely to be tried. All of the Hefferans’ claims center on Ethicon’s liability for an
allegedly defective stapler. That will require a close examination of the surgery and the harm
attributable to the stapler as opposed to other potential causes. Accordingly, the district court
properly took into account the location of potential witnesses involved in Brandon Hefferan’s
surgery and subsequent medical care. The court also properly determined that the surgeons who
actually used the device were critical to the Hefferans’ claims.
Other kinds of proof such as documents, photographs, and electronically stored
information are also part of ease-of-access analysis. See Duha, 448 F.3d at 876. Both parties
disclosed non-witness sources of proof. The district court found, and Ethicon emphasizes on
appeal, that Germany does not compel the production of pretrial documents for foreign courts
such as those of the United States. Germany has made a reservation to pretrial document
discovery under the Hague Evidence Convention, Mar. 18, 1970, 23 U.S.T. 2555, and it
generally rejects pretrial discovery requests from foreign courts, see Anke Meier, U.S.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 12
Discovery: The German Perspective, 37 Deutsch-Amerikanische Juristen-Vereinigung Newsl.
9, 10 (2012).
However, exhaustive ease-of-access analysis demands more precise scrutiny than
answering the question whether a foreign jurisdiction has in place procedures to compel
document discovery. The location and language of relevant documents, and the need to resort to
the comparatively more restrictive process, are also germane. See Duha, 338 F.3d at 876. The
district court’s reference to German policy on pretrial documents does not take into account the
impact on Ethicon’s ability to obtain relevant evidence were the trial in the United States.
We give little weight to the ease-of-access factor because the district court did not fully
consider which witness and non-witness sources of proof are “critical, or even relevant” to
Ethicon’s case. Van Cauwenberghe, 486 U.S. at 528.
Availability of Compulsory Process. This factor is “properly considered when witnesses
are unwilling” to appear. Duha, 448 F.3d at 877. However, it receives less weight “when it has
not been alleged or shown that any witness would be unwilling to testify.” Ibid. Ethicon
speculates that if trial proceeded in federal district court, they would be “severely restricted” in
obtaining the testimony of German witnesses. But they do not allege, much less show, that any
witness is unwilling to testify, and that compulsory process is therefore needed.
Similarly, a foreign forum’s more burdensome procedures for compelling the production
of evidence receives less weight when the defendant has neither alleged nor shown the need to
avail itself of that process. To be sure, “[m]utual knowledge of all the relevant facts gathered by
both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). And
the district court may have been correct that in foreign proceedings, it is easier to compel the
production of evidence located in the United States through 28 U.S.C. § 1782 than evidence in
Germany through the Hague Evidence Convention. Cf. Catherine Piché, Discovery in
International Litigation, 38 Int’l Law. 329, 329 (2004) (Section 1782 “does not require that
requests for evidence be channeled through governmental bureaucracies as would be required
under the Hague Convention”). But the Hague Convention is not a “rule of exclusivity” that
deprives district courts of other methods of obtaining evidence from abroad. Société Nationale
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 13
Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522, 539 (1987). Germany’s more
taxing process for compelling discovery for foreign proceedings receives less weight than if
Ethicon had shown that litigating in the United States would in fact produce an evidentiary
imbalance.
Other Practical Problems. The list of private-interest factors includes a catch-all for
“practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil,
330 U.S. at 508. This includes a plaintiff’s financial ability to practicably bring suit in the
alternative forum. See Murray v. British Broad. Corp., 81 F.3d 287, 294 (2d Cir. 1996); Mercier
v. Sheraton Int’l, Inc., 981 F.2d 1345, 1353 (1st Cir. 1992); Reid-Walen v. Hansen, 933 F.2d
1390, 1398 & n.11 (8th Cir. 1991). However, this factor receives less weight when a plaintiff
does not demonstrate its inability to shoulder the cost of litigating in the alternative forum. See
Duha, 448 F.3d at 877.
The Hefferans point to three costs that allegedly weigh against dismissal. First, their
expert asserts that in German court, upfront filing fees can be significant for personal-injury
claims. Although the Hefferans submitted evidence suggesting that German filing fees can be
significant, they did not establish that these fees would be greater than the out-of-pocket costs
they might incur if the case proceeded in the United States. Next, they point to a bond required
of claimants who file suit in Germany but who do not have a “habitual place of residence” in the
European Union. It is not clear that such a bond would even apply to the Hefferans, both of
whom are domiciled in Germany. Besides, Ethicon has agreed to waive the requirement.
Last, the unavailability of contingency-fee arrangements in Germany will, by the
Hefferans’ estimation, “likely amount to at least tens of thousands of dollars” in additional costs
for them. Contingency payment of legal fees certainly opens a litigation system to otherwise
priced-out plaintiffs. However, the Hefferans do not support their assertion with evidence of the
fees that they would avoid if the case proceeded in the United States.
The district court’s conclusion was not in error. Relative ease of access to sources of
proof and the availability of compulsory process for proceedings abroad support dismissal.
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 14
2
Public-interest factors include “administrative difficulties flowing from court congestion;
the ‘local interest in having localized controversies decided at home’; the interest in having the
trial of a diversity case in a forum that is at home with the law that must govern the action; the
avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and
the unfairness of burdening citizens in an unrelated forum with jury duty.” Piper Aircraft,
454 U.S. at 241 n. 6 (quoting Gulf Oil, 330 U.S. at 509). To evaluate them, district courts “must
consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of
that conduct to the plaintiff’s chosen forum.” Van Cauwenberghe, 486 U.S. at 528. These
factors will typically “thrust the court into the merits of the underlying dispute.” Ibid.
Local Interest in Deciding a Local Controversy. The primary local-interest
considerations are the parties’ connections to the local forum and the location of the injury. For
example, when a case pits an American manufacturer against foreign nationals injured at home
by a product sold there, the “incremental deterrence” of trial in the United States usually cannot
overcome the foreign forum’s interest in the dispute. Piper Aircraft, 454 U.S. at 260; see also
Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 615 (6th Cir. 1984). Adding an American
plaintiff to the mix does not necessarily tip the scales. After her husband died in a plane crash
near Madrid, the Kryvicky plaintiff, a Michigan resident who at the time of the accident had been
living in Spain, sued a Swedish airline and an American plane manufacturer. We reasoned that
“the country where the injury occurred ha[d] a greater interest in the ensuing products liability
litigation than the country where the product was manufactured.” 807 F.2d at 517.
Here, the stapler’s design and manufacture by an American company does not outweigh
Germany’s interest in the controversy, to say nothing of the Hefferans’ German domicile. The
country where a product is sold, used, and regulated has a strong interest, often an
insurmountably strong interest, in litigation involving that product.
Conflict of Laws. As with the loss-of-consortium claim, Part II.B.2, supra, the Hefferans’
right to recover on their other claims would likely be decided by German law. The United States
does have an additional contact to Brandon Hefferan. He is an American citizen. Yet like his
No. 15-3619 Hefferan, et al. v. Ethicon Endo-Surgery, Inc., et al. Page 15
wife, Brandon Hefferan lives and works in Germany. In light of his longtime German domicile,
Brandon Hefferan’s American citizenship does not increase United States contacts enough to
give it a greater interest in his claims. The district court correctly concluded that the interest of
proceeding in a forum whose law will decide the parties’ rights and liabilities supports dismissal.
Jury Duty. We do not rely on the district court’s conclusion that the unfairness of
foisting jury duty on United States citizens with “no relation to the litigation” weighs in favor of
dismissal. That analysis turns what should be an independent factor into a redundancy.
The court’s conclusion that the public-interest factors support granting forum non
conveniens was in any event correct. Germany has a strong interest in deciding a controversy
involving a product purchased and used within its borders, especially because the suit will
involve the application of its law to determine the parties’ rights and liabilities.
III
Where a district court has considered all relevant public- and private-interest factors, and
has reasonably balanced those factors, its decision deserves substantial deference. The court
here correctly concluded that Ethicon met its burden of showing that if the case remained in the
Southern District of Ohio, the vexation it would endure and trouble to the court would be out of
proportion to the Hefferans’ minimal convenience.
The district court did not specify whether its dismissal was with or without prejudice.
However, when the appropriate disposition is well established, we read ambiguity according to
that convention. See Bell v. Konteh, 450 F.3d 651, 653 n.4 (6th Cir. 2006). It is well established
that the appropriate disposition of a granted forum non conveniens motion is dismissal without
prejudice to filing in the alternative forum. See Manez v. Bridgestone Firestone N. Am. Tire,
LLC, 533 F.3d 578, 583 (7th Cir. 2008). We therefore read the district court’s order as such and
AFFIRM without prejudice to the case being refiled in Germany.