Terry Pantuso v. Wright Medical Technology Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 11, 2015 Session
TERRY PANTUSO v. WRIGHT MEDICAL TECHNOLOGY INC., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT00155214 Donna M. Fields, Judge
________________________________
No. W2014-02315-COA-R9-CV – Filed August 31, 2015
_________________________________
In this interlocutory appeal, the defendants appeal the trial court‟s denial of their motion to
dismiss a product liability lawsuit on the ground of forum non conveniens. Discerning no
abuse of discretion by the trial court, we affirm.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which BRANDON O.
GIBSON, J., and KENNY ARMSTRONG, J., joined.
George T. Lewis, III, and Quinn N. Carlson, Memphis, Tennessee, for the appellants, Wright
Medical Group, Inc., and Wright Medical Technology, Inc.
Michael O. Fawaz, Royal Oak, MI, for the appellants, Wright Medical Group, Inc., and
Wright Medical Technology, Inc., Pro Hac Vice.
R. Christopher Gilreath, Memphis, Tennessee, and Michael Jerome Warshauer, Atlanta,
Georgia, for the appellee, Terry Pantuso.
OPINION
Background
On April 7, 2007, Plaintiff/Appellee Terry Pantuso filed a complaint alleging product
liability against Defendants/Appellants Wright Medical Technology, Inc., (“Wright Medical
Technology”) and its wholly owned subsidiary, Wright Medical Group, Inc. (“Wright
Medical Group,” and together with Wright Medical Technology, “Wright Medical”) in the
Shelby County Circuit Court. Mr. Pantuso is a resident of Utah. Wright Medical Technology
is a Delaware corporation with its principal place of business in Memphis, Tennessee and is
registered to do business in both Tennessee and Utah. Wright Medical Group is a Delaware
corporation with its principal place of business in Memphis, Tennessee and is registered to
do business in Tennessee.
According to the complaint, Wright Medical was the designer, manufacturer, and
marketer of a hip replacement system, known as the Profemur hip device, that was surgically
implanted into the left and right sides of Mr. Pantuso‟s body in 2007 in a Utah hospital.
According to Mr. Pantuso‟s complaint, the Profemur hip device was chosen by Mr. Pantuso‟s
physician due to the device‟s marketing as the appropriate hip replacement system for active
individuals. Despite this marketing, Mr. Pantuso alleged that Wright Medical had knowledge
that the Profemur hip device was experiencing higher-than-anticipated rates of failure due to
fractures of the modular neck in the device.
On April 12, 2013, a component of Mr. Pantuso‟s left-side Profemur hip replacement
device allegedly “suddenly and catastrophically failed.” Accordingly, on April 15, 2013, the
Profemur hip device was surgically removed from Mr. Pantuso‟s left side and replaced with a
different artificial hip device, manufactured by a different company. Although Mr. Pantuso
retains the Profemur device in his right hip, he alleged that the risk of failure prevents him
from engaging in the levels of activity that he otherwise could and should have been capable
of enjoying, given the marketing of the device by Wright Medical. Mr. Pantuso requested
both compensatory and punitive damages resulting from the harm he suffered from Wright
Medical‟s manufacture, design, and marketing of the Profemur hip device.
On April 17, 2014, Wright Medical filed a motion to dismiss the complaint based
upon the doctrine of forum non conveniens. Therein, Wright Medical Technology admitted
that it was headquartered in Memphis, Tennessee. Wright Medical argued, however, that the
appropriate forum was in Utah, where Mr. Pantuso lived and received all medical treatment
related to his hip replacements. According to Wright Medical, it would be prejudiced by
proceeding in Tennessee because it would have “no access to any third-party witness or any
third-party documents because they are all in Utah, beyond the subpoena power of
[Tennessee] Court[s].” Wright Medical also alleged that while many of its employees were
located in Tennessee, Mr. Pantuso “would have access to Wright Medical employees and
Wright Medical documents under ordinary rules of civil procedure.” Wright Medical further
asserted that because Utah law applied to the cause of action, to hear the action in Tennessee
state court would cause a substantial burden on the Shelby County courts, which Wright
Medical argued are among the most overburdened courts in Tennessee. Accordingly, Wright
Medical argued that Utah provided an appropriate forum in which Mr. Pantuso could
prosecute his case.
2
On May 22, 2014, Mr. Pantuso filed a motion for pre-trial consolidation of all pending
actions involving the alleged failure of the Profemur hip devices. Specifically, Mr. Pantuso
alleged that eight cases were currently pending in Shelby County Circuit Court concerning
the alleged failure of Wright Medical‟s Profemur hip device and that because of common
issues of law and fact, the use of a coordinating judge would promote judicial economy.
On the same day, Mr. Pantuso also filed a response in opposition to Wright Medical‟s
motion to dismiss on the ground of forum non conveniens. Mr. Pantuso contended that Utah
was not an available forum because Wright Medical Group was not subject to personal
jurisdiction in Utah and “has a recent history of not voluntarily appearing or accepting
service of process in states where it is not registered to do business.” Further, Mr. Pantuso
argued that the crux of his complaint concerned not the medical treatment he received
relative to his hip replacements, but the decisions made by Wright Medical concerning the
manufacture, design, and marketing of the Profemur hip device, all of which occurred at
Wright Medical‟s Memphis office. According to Mr. Pantuso, the witnesses that could testify
regarding these issues were Tennessee residents who may not be amenable to process in
Utah. Further, Mr. Pantuso contended that because the fact witnesses that reside in Utah were
medical providers, it was nearly certain that their testimony would be submitted by
deposition. Because Utah law clearly provides a method to subpoena witnesses for
deposition, Mr. Pantuso argued that Wright Medical would not be prejudiced should it be
unable to obtain live testimony of these witnesses. Mr. Pantuso further argued that the Utah
witnesses pertained only to damages, rather than liability, unlike the Tennessee witnesses.
Wright Medical filed a reply to Mr. Pantuso‟s response on May 29, 2014, generally
denying the allegations and contentions made by Mr. Pantuso. Importantly, Wright Medical
admitted that Utah had no personal jurisdiction over Wright Medical Group; however,
Wright Medical alleged that Wright Medical Group took no part in the design, manufacture,
distribution, or marketing of the Profemur hip devices, and, therefore, was nothing more than
a nominal party. Regardless, Wright Medical asserted that in the event that Wright Medical is
found a necessary party to this lawsuit, Wright Medical Group would waive any personal
jurisdiction defense it was entitled to assert in Utah. Wright Medical also reiterated all the
factors it contended militated in favor of dismissal.
The trial court heard Wright Medical‟s motion on June 2, 2014. During the hearing,
the trial court expressed its belief that regardless of where the trial took place, “one or the
other side will be inconvenienced.” Speaking to counsel for Wright Medical, the trial court
noted “I don‟t think it‟s any more inconvenient for you than it would be for plaintiff[] if we
moved back to Utah.” Accordingly, on June 19, 2014, the trial court entered an order denying
Wright Medical‟s motion to dismiss.
3
On July 10, 2014, Wright Medical filed a motion for an interlocutory appeal to this
Court. Mr. Pantuso objected, but the motion was ultimately granted on November 14, 2014.
This Court likewise granted the application for an interlocutory appeal on February 9, 2015.
While the appeal was pending, this Court also granted three motions filed by Wright Medical
for this Court to consider additional facts regarding the number of cases involving Wright
Medical pending in Shelby County Circuit Court. According to the motions filed by Wright
Medical, as of August 4, 2015, seventeen cases were pending in Shelby County Circuit Court
against Wright Medical, involving plaintiffs from California, Indiana, Maryland, Ohio,
Oregon, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
Issue Presented
In its February 9, 2015 order, this Court indicated that it would review the following
issue: Whether the circuit court erred in denying Wright Medical‟s motion to dismiss based
upon the doctrine of forum non conveniens?
Applicable Law
Both parties agree in this case that our review is governed by the Tennessee Supreme
Court‟s seminal Opinion in Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767 (Tenn. 1968).
In Zurick, the plaintiff, a resident of Georgia, sued the defendant, a resident of Alabama, for
injuries related to a traffic accident that occurred in Georgia. The only apparent connection
to Tennessee was the fact that the plaintiff had been transported to Tennessee for medical
treatment after the accident. Consequently, the defendant filed a motion to dismiss the action
on the basis of forum non conveniens. The trial court dismissed the case, but the Court of
Appeals reversed. Id. at 396.
The Tennessee Supreme Court affirmed the Court of Appeals but held that Tennessee
Courts have inherent power to apply the doctrine of forum non conveniens. As the Court
explained:
Generally speaking, forum non conveniens deals with the
discretionary power of the court to decline to exercise a
possessed jurisdiction whenever, because of varying factors, it
appears that the controversy may be more suitably or
conveniently tried elsewhere.
Id. at 769 (quoting Cotton v. Louisville & Nashville R.R. Co., 14 Ill. 2d 144, 152 N.E.2d 385,
388 (Ill. 1958)). According to the Court, the doctrine of forum non conveniens originated
based on the concept that:
Where it appears that complete justice cannot be done here, that
the defendant will be subjected to great and unnecessary
4
inconvenience and expense, and that the trial will be attended, if
conducted here with many if not insuperable difficulties which
all would be avoided without special hardship to the plaintiff if
proceedings are brought in the jurisdiction where the defendant
is domiciled, where service can be had, where the cause of
action arose and where justice can be done our courts decline to
take jurisdiction on the general ground that the litigation may
more appropriately be conducted in a foreign tribunal.
Zurick, 426 S.W.2d at 769 (quoting Universal Adjustment Corp. v. Midland Bank, Ltd., of
London, England, et al., 281 Mass. 303, 184 N.E. 152, 158 (Mass. 1933)).
The doctrine of forum non conveniens places a high burden on the defendant seeking
dismissal; indeed, “unless the balance is strongly in favor of the defendant, the plaintiff‟s
choice of forum should rarely be disturbed.” Zurick, 426 S.W.2d at 772 (quoting Gilbert, 330
U.S. at 508). Additionally, because “the application of the doctrine is a matter of discretion
with the trial court[,] the review here on appeal is limited to whether there has been an abuse
of discretion.” Zurick, 426 S.W.2d at 772 (citing 48 A.L.R. 2d 823, § 12). According to the
Tennessee Supreme Court:
The abuse of discretion standard of review envisions a
less rigorous review of the lower court‟s decision and a
decreased likelihood that the decision will be reversed on
appeal. Beard v. Bd. of Prof’l Responsibility, 288 S.W.3d 838,
860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189,
193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several
acceptable alternatives. Overstreet v. Shoney's, Inc., 4 S.W.3d
694, 708 (Tenn. Ct. App. 1999). Thus, it does not permit
reviewing courts to second-guess the court below, White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or
to substitute their discretion for the lower court‟s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate
Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998). The abuse of
discretion standard of review does not, however, immunize a
lower court's decision from any meaningful appellate scrutiny.
Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct.
App. 2002).
. . . . An abuse of discretion occurs when a court strays beyond
the applicable legal standards or when it fails to properly
consider the factors customarily used to guide the particular
5
discretionary decision. State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007). A court abuses its discretion when it causes an
injustice to the party challenging the decision by (1) applying an
incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence. State v. Ostein, 293
S.W.3d 519, 526 (Tenn. 2009); Konvalinka v. Chattanooga-
Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex
rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d
at 42.
To avoid result-oriented decisions or seemingly
irreconcilable precedents, reviewing courts should review a
lower court's discretionary decision to determine (1) whether the
factual basis for the decision is properly supported by evidence
in the record, (2) whether the lower court properly identified and
applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court‟s decision was within
the range of acceptable alternative dispositions. Flautt & Mann
v. Council of Memphis, 285 S.W.3d 856, 872–73 (Tenn. Ct.
App. 2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc.
v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *3
(Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11
application filed)).
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524–25 (Tenn. 2010).
In order to guide a trial court in the exercise of its discretion, the Zurick Court set out
a comprehensive test for determining whether the doctrine of forum non conveniens requires
dismissal of an action in favor of another, more suitable forum. First, the doctrine
“presupposes the court has jurisdiction of both the parties and the subject-matter.” Zurick,
426 S.W.2d at 771. Next, there must exist “at least one forum other than the forum chosen
where the plaintiff may bring his cause of action, and it is necessary the trial court determine
such other forum is available.” Id. at 772. If an alternative forum is established, the court
must then consider the private interests of the litigants, which may include the enforceability
of any judgment obtained; “„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 all other practical problems that make trial of a case easy, expeditious and
inexpensive.‟” Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843,
91 L. Ed. 10 (1947)). In considering these factors, the court must “weigh relative advantages
6
and obstacles to fair trial.” Zurick, 426 S.W.2d at 771 (quoting Gilbert, 330 U.S. at 508). The
Court explained that in considering these factors, the court‟s purpose is to ensure that “the
plaintiff may not, by choice of an inconvenient forum, „vex,‟ „harass,‟ or „oppress' the
defendant by inflicting upon him expense or trouble not necessary to his own right to pursue
his remedy.” Zurick, 426 S.W.2d at 772 (quoting Gilbert, 330 U.S. at 508).
In addition to the private factors outlined above, the Zurick Court held that courts
must also consider any applicable public factors. According to the Court:
Administrative difficulties follow for courts when litigation is
piled up in congested centers instead of being handled at its
origin. Jury duty is a burden that ought not to be imposed upon
the people of a community which has no relation to the
litigation. In cases which touch the affairs of many persons,
there is reason for holding the trial in their view and reach rather
than in remote parts of the country where they can learn of it by
report only. There is a local interest in having localized
controversies decided at home. There is an appropriateness, too,
in having the trial of a diversity case in a forum that is at home
with the state law that must govern the case, rather than having a
court in some other forum untangle problems in conflict of laws,
and in law foreign to itself.
Zurick, 426 S.W.2d at 772 (quoting Gilbert, 330 U.S. at 508). Because the defendant failed
to establish that “the ends of justice in a broad sense require the case be tried in another
forum,” the Zurick Court ultimately concluded that the trial court erred in dismissing the case
on the basis of forum non conveniens. Zurick, 426 S.W.2d at 775.
Alternative Available Forum
There is no dispute in this case that Wright Medical is subject to personal jurisdiction
in Tennessee and that the Shelby County Circuit Court has jurisdiction to preside over this
dispute. Accordingly, we first consider the issue of whether there exists an alternative
available forum in which Mr. Pantuso can prosecute this action. See Zurick, 426 S.W.2d at
772. Wright Medical argues that Utah constitutes an alternative available forum because it is
the locus of Mr. Pantuso‟s injuries.
Mr. Pantuso does not dispute that he resides in Utah and that all of his medical
treatment occurred in Utah. Instead, in defending the motion to dismiss, he raises “[t]he two
most common situations in which another forum is not available to the plaintiff[:] where the
cause of action would be barred by the applicable statute of limitations in the other forum and
where the defendant is not amenable to service of process in the other forum.” Package Exp.
7
Ctr., Inc. v. Snider Foods, Inc., 788 S.W.2d 561, 563 (Tenn. Ct. App. 1989) (quoting Ryan
& Berger, Forum Non Conveniens in California, 1 Pac.L.J. 532, 536–37 (1970) (footnotes
omitted)). Specifically, in his brief, Mr. Pantuso argues that Utah is not an available forum
because the Utah statute of limitations has expired. See Utah Code §78B-6-706 (providing a
two year statute of limitations for product liability claims from when the “claimant in the
action discovered, or in the exercise of due diligence should have discovered, both the harm
and its cause”). Because Mr. Pantuso asserts that he discovered his injury on April 2, 2013,
he contends that the statute of limitations in Utah has now expired. In addition to this statute
of limitations argument, Mr. Pantuso also argued in the trial court that one of the defendants,
Wright Medical Group, was not subject to the personal jurisdiction of Utah.
In response to Mr. Pantuso‟s argument regarding the amenability of Wright Medical
Group to service of process in Utah, Wright Medical asserted at trial that “in the event” that
the court determines that Wright Medical Group is a “necessary party to this lawsuit,” Wright
Medical Group “will waive a personal jurisdiction defense in Utah to allow this action to
proceed there against it.” Similarly, in its reply brief to this Court, Wright Medical asserts
that if this Court dismisses this action on the basis of forum non conveniens and Mr. Pantuso
“refiles this lawsuit in Utah, Wright Medical will waive any statute of limitations defense by
treating the refiled Utah action as having been filed on April 7, 2014, the date [Mr. Pantuso]
filed this action in Tennessee.” Thus, Wright Medical argues that its promises to waive the
defenses of lack of personal jurisdiction and statute of limitations render Utah an available
forum.
This Court confronted a similar situation in In re Bridgestone/Firestone, 138 S.W.3d
202 (Tenn. Ct. App. 2003). In Bridgestone/Firestone, the plaintiffs were all residents of
Mexico who had been injured in automobile accidents throughout Mexico. Id. at 204. The
plaintiffs filed product liability lawsuits against the automobile manufacturer, a Michigan
resident, and the tire manufacturer, a Tennessee resident, in Tennessee state court. Id. The
defendant manufacturers subsequently filed motions to dismiss on the basis of forum non
conveniens. Id. at 205. The defendant manufacturers argued that Mexico was an available
forum and that it was the more appropriate venue in which to litigate the lawsuits. Id. The
trial court denied the motions, finding that Mexico was not an available forum, noting that
Mexico failed to provide a “truly adequate alternative forum that would allow the fair
disposition of these cases.” Id.
The Court of Appeals reversed the trial court‟s ruling on this issue. Specifically, the
Court, relying on Zurick, held that the relevant question was not whether another forum was
“adequate” but whether it was available. Id. at 206. According to the Court:
8
We disagree with the lower court‟s characterization of the
applicable analysis. The relevant inquiry encompasses the
availability of an alternative forum, but not its adequacy.
We begin our discussion with the plain language of the
Zurick decision. In that case, the Tennessee Supreme Court held
that “[t]he doctrine [of forum non conveniens] presupposes there
is at least one forum other than the forum chosen where the
plaintiff may bring his cause of action, and it is necessary the
trial court determine such other forum is available.” [Zurick,
426 S.W.2d at 772] (emphasis added). The plain language of
this holding contemplates the availability of an alternative
forum, but makes no mention of adequacy. Thus, the plain
language of Zurick does not support the lower court's use of an
adequacy requirement.
In addition, no Tennessee court has previously used an
adequacy requirement when applying or interpreting Zurick.
Instead, courts have limited their inquiries to the availability of
alternative fora. See, e.g., Guardsmark, Inc. v. Borg-Warner
Protective Services, No. 2A01-9409-CH-00207, 1998 WL
959664 at *1 (Tenn. Ct. App. Nov. 4, 1998); Shoney’s Inc. v.
Chic Can Enters., Ltd., 922 S.W.2d 530 (Tenn. Ct. App. 1995);
Cummings, Inc. v. H.I. Mayaguez, Inc., No. 01-A-01-9306-
CH-00258, 1993 WL 398475 at *1 (Tenn. Ct. App. Oct. 1,
1993); Smith v. Priority Transp., Inc., No. 02A01-9203-CV-
00074, 1993 WL 29021 at *1 (Tenn. Ct. App. Feb. 9, 1993);
Package Express Ctr., Inc. v. Snider Foods, Inc., 788 S.W.2d
561 (Tenn. Ct. App. 1989); Bourland v. Bourland, 1988 WL
77628 at *1 (Tenn. Ct. App. July 28, 1988); Chapman Chem.
Co. v. Reichhold Chems., Inc., 1987 WL 9724 at *1 (Tenn. Ct.
App. April 24, 1987); Raja v. Soundranayagam, 1984
Tenn.App. LEXIS 3432 at *1 (Tenn. Ct. App. Oct. 12, 1984).
Nor can it be said that the analysis of availability in these cases
implicitly takes into consideration the adequacy of the remedies
offered by the alternative forum. Instead, the analysis typically
focuses on whether the cause of action would be barred by the
applicable statute of limitations in the other forum or whether
the defendant would be amenable to service therein. Package
Express, 788 S.W.2d at 563. Thus, a plaintiff's ability to bring
9
suit is, by itself, determinative of the issue of availability. There
is no need to consider the nature of remedies afforded by the
alternative forum. In the present matter, the record indicates that
both Ford and Firestone have consented to waive any
jurisdictional defenses, including any applicable statutes of
limitations, if plaintiffs file suit in Mexico. As such, the courts
of Mexico provide an available alternative forum.
Bridgestone/Firestone, 138 S.W.3d at 206–07. As is relevant to this appeal, where the
plaintiffs asserted that an alternative forum was unavailable due to lack of jurisdiction and
the expiration of the statute of limitations, the Court of Appeals held that the defendants‟
agreement to waive any jurisdictional and statute of limitations defenses in the alternative
forum was sufficient to conclude that the forum was available. Id.
The same situation is presented in this case. Here, Mr. Pantuso has argued that Utah is
not an available forum because it lacks personal jurisdiction over one defendant and the Utah
statute of limitations has now expired. Like the defendants in Bridgestone/Firestone, Wright
Medical has consented to waive any statute of limitations defense, and Wright Medical
Group has consented to waive any jurisdictional defense. We understand Mr. Pantuso‟s
reluctance to accept these concessions on the part of Wright Medical, and we acknowledge
the difficulty both the Bridgestone/Firestone litigants and this Court experienced in the wake
of that decision.1 However, the Bridgestone/Firestone Opinion is binding precedent on this
1
The Court in Bridgestone/Firestone ultimately dismissed all the pending lawsuits on the basis of
forum non conveniens. After the dismissal in Tennessee, the plaintiffs filed their claims in Mexico. The claims
in Mexico were all later dismissed. Three additional Tennessee appellate Opinions resulted from the plaintiffs‟
attempts to refile the claims in Tennessee on the basis that Mexico ultimately proved to be an unavailable
forum. In the second case, In re Bridgestone/Firestone, 286 S.W.3d 898 (Tenn. Ct. App. 2008) (hereinafter
“Bridgestone/Firestone II”), the defendants filed a motion to dismiss the refiled claims on the basis of issue
preclusion, arguing that the question of whether Mexico was available for purposes of the doctrine of forum
non conveniens could not be re-litigated. The trial court denied the motion but granted an interlocutory appeal.
Id. at 900. The Court of Appeals concluded that issue preclusion could apply to a finding that an alternative
forum is available, but that the plaintiffs may avoid preclusion by showing that the dismissals in Mexican
courts resulted from good faith efforts to litigate in Mexico, rather than procedural manipulation. Id. at 909.
Accordingly, the cases were remanded back to the trial court for a determination of these issues.
Next, in Ramirez v. Bridgestone/Firestone, Inc., 414 S.W.3d 707 (Tenn. Ct. App. 2013), the trial
court dismissed a number of the cases on either of two different grounds: (1) failure to join an indispensible
party in the Mexican litigation, which constituted manipulation of the Mexican proceedings to secure
dismissals; and (2) discovery sanctions. The Court of Appeals affirmed the dismissals on these grounds. Id. at
710. The trial court, however, made an alternative ruling: that dismissal was appropriate because the
unavailability of the Mexican courts was foreseeable to the plaintiffs at the time of the original forum non
conveniens dismissal in Bridgestone/Firestone. With regard to this ruling, the Court of Appeals also affirmed,
holding that “even if the trial court erred in dismissing the cases [on the above grounds] . . . the trial court
10
Court with which we are constrained to adhere. Accordingly, we must conclude that Utah is
an available forum in which Mr. Pantuso may assert his claims against Wright Medical.
Therefore, we go on to consider whether the trial court “review[ed] and balance[]d the public
and private factors that guide any consideration of the doctrine” of forum non conveniens.
Bridgestone/Firestone, 138 S.W.3d at 205 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235,
257, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)).
Private Factors
We next consider the private factors that impact this case. At trial and on appeal, both
parties focus on three of the applicable factors: (1) the relative ease of access to sources of
proof; (2) the availability of compulsory process for the attendance of unwilling witnesses;
(3) and the cost of obtaining attendance of willing witnesses.2 See Zurick, 426 S.W.2d at
reached the correct result because it was foreseeable to the [p]laintiffs, and should have been argued in
[Bridgestone/Firestone], that Mexico would not accept jurisdiction over their cases.” In reaching this result,
we concluded that a plain reading of Mexican law indicated that Mexican courts could never accept
jurisdiction over foreign defendants in a personal injury action, and noted that plaintiffs, in their application for
permission to appeal to the Supreme Court in Bridgestone/Firestone, argued “that Mexico was not an
available forum.” Id. at 722.
Finally, in the recent case of In re Bridgestone/Firestone, No. M2013-02849-COA-R3-CV, 2015 WL
3623591, at *1 (Tenn. Ct. App. June 10, 2015), the defendants filed motions to dismiss the plaintiffs‟
remaining claims, this time on the basis of collateral estoppel. The trial court granted the motions, relying on
the foreseeability analysis adopted in Ramirez. The Court of Appeals reversed, concluding that while collateral
estoppel was applicable to a dismissal on forum non conveniens grounds, two independent exceptions may
preclude its application; 1) that dismissal in the alternative forum was unforeseeable at the time of the forum
non conveniens dismissal in this Court; or 2) that the plaintiffs proceeded in good faith in the alternative forum
but that their claims were nevertheless dismissed. Thus, the Court held that “an alternate exception to collateral
estoppel may apply regardless of whether the unavailability of a Mexican forum was foreseeable.” Id. at *9.
The Court of Appeals therefore reversed the dismissal of the plaintiffs‟ claims and remanded for further
proceedings.
2
Wright Medical also argues in its brief that “courts have placed particular emphasis on the private
factor regarding the forum in which the events at issue took place,” citing Dowling v. Richardson-Merrell,
Inc.,727 F.2d 608, 616 (6th Cir. 1984). While the Sixth Circuit is free to place particular emphasis on this
factor, this Court is not. Indeed, the Zurick Court specifically held that:
That the cause of action arose outside the State is not a factor to be
considered on the question of whether the doctrine should be applied in a
particular case. It is necessary this fact exist and be shown in order to raise
the question of the application of the doctrine.
Zurick, 426 S.W.2d at 773 (emphasis added). Accordingly, we disagree with Wright Medical that this factor
militates in favor of dismissal.
11
772. Because the Zurick Court directed that courts should consider the “relative” ease of
access, we consider how these factors will impact not only Wright Medical but also Mr.
Pantuso. Id. at 773 (considering the residences of both the plaintiff‟s and defendant‟s
witnesses).
Specifically, Wright Medical argues that all witnesses who will testify regarding Mr.
Pantuso‟s medical treatment, including his initial surgery to implant the Profemur hip devices
and any treatment he received to remove the allegedly defective device in his left hip, are
residents of Utah. Thus, Wright Medical asserts that it will be difficult, if not impossible, to
compel these witnesses to testify at trial, and that the cost of deposing these witnesses will be
prohibitive.3 Wright Medical, therefore, asserts that these factors militate in favor of
dismissing the lawsuit in Tennessee.
To support its argument, Wright Medical cites this Court‟s Opinion in Package
Express Center, Inc. v. Snyder Foods, Inc., 788 S.W.2d 561, 562 (Tenn. Ct. App. 1989). In
Package Express, the plaintiff lessor brought an action against the defendant lessee for
breach of a lease. Although the lessee was a Missouri corporation, the parties‟ lease
designated Greene County, Tennessee as the proper venue for any litigation and granted
Tennessee personal jurisdiction over the parties. The negotiation and performance of the
contract, however, took place completely in Missouri. After an alleged breach of the lease,
the lessor filed suit in Tennessee. The trial court denied the lessee‟s motion to dismiss on the
basis of lack of jurisdiction, but ultimately dismissed the lawsuit on the basis of forum non
conveniens.
The Court of Appeals affirmed the trial court‟s decision to apply the doctrine of forum
non conveniens. In reaching its decision, the Court focused on the trial court‟s finding that
while the dispute had little connection with Tennessee, as “the vast majority, if not all, of the
witnesses reside in Missouri. The contract was to be performed in Missouri and any breach of
the contract occurred in Missouri. Similarly, any fraudulent misrepresentation by plaintiff
occurred in Missouri.” The Court of Appeals cited with apparent approval the following
findings of the trial court:
3
Both Tennessee and Utah have enacted substantially similar versions of the Uniform Interstate
Depositions and Discovery Act (“the Act”). Under the Act, a party seeking to conduct a deposition by foreign
subpoena must first obtain a foreign subpoena from the court having jurisdiction over the case. The party must
then “submit [the] foreign subpoena to a court in the judicial district in which discovery is sought to be
conducted in Utah.” Utah Code Ann. § 78B-17-201; see also Tenn. Code Ann. § 24-9-203 (“A party may
submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this
state.”). Accordingly, while only one subpoena need be issued to depose a party residing in the state where the
case has been filed, two subpoenas are required to depose a foreign witness. Regardless, there can be no
dispute that either party will be able to depose foreign witnesses regardless of where the action is ultimately
prosecuted.
12
Most of the evidence would have to be taken by
deposition since all of the non-party witnesses would be beyond
the subpoena power of this Court. Needless to say, deposition
evidence is quite inferior to testimony presented from the
witness stand since the Court is deprived of the ability to
observe the witness. It is anticipated that practically all of the
witnesses would be those from Missouri. Since it was plaintiff
that solicited this contract in Missouri, it is difficult to see how it
could be terribly inconvenient for plaintiff to litigate this suit in
Missouri. On the other hand, it would be extremely inconvenient
and burdensome for defendant to be compelled to litigate here in
Tennessee.
Package Exp., 788 S.W.2d at 563–64. Thus, Wright Medical argues that following the
reasoning in Package Express, this Court should dismiss this case because Wright Medical
will be unable to obtain live testimony from all of the necessary medical witnesses.
Respectfully, we do not agree. First, as discussed above, the defendant seeking
dismissal in Package Express was a non-resident of Tennessee. The trial court and the Court
of Appeals, therefore, concluded that it would “be extremely inconvenient and burdensome”
to litigate in Tennessee. Id. The same cannot be said in this case. Here, Wright Medical,
rather than the plaintiff, is a resident of Tennessee. This Court has previously remarked that
“it is indeed unusual to have the native citizen cry forum non conveniens.” Bourland v.
Bourland, No. 34, 1988 WL 77628, at *2 (Tenn. Ct. App. July 28, 1988). Requiring Wright
Medical to litigate in its home state certainly does not rise to the level of inconvenience and
burden that would have been experienced by the Package Express defendant, who had no
contact whatsoever with the State of Tennessee other than through the choice of forum
provision included in the contract.
Moreover, the defendant in Package Express filed the affidavits of three employee
witnesses “who, because of their own health, the health of their immediate family, and other
personal problems, testified they were unable to come to Tennessee for trial.” Package Exp.,
788 S.W.2d at 564. The Zurick Court thoroughly explained the defendant‟s burden on this
factor:
[T]he fact there are out-of-state witnesses is not of itself enough
to support an application of the doctrine. This factor has to be
supported by facts showing why, due to out-of-state witnesses,
there is a strong likelihood defendant will be done an injustice if
forced to go to trial in the forum selected by plaintiff. This can
be done by giving the names of the witnesses, nature and
13
materiality of their testimony, and any other applicable facts. It
is upon these facts the trial court exercises its discretion in the
application of the doctrine.
Zurick, 426 S.W.2d at 775 (“The failure of the defendant to give the names of its witnesses,
to indicate what their testimony would be, to show how vital that testimony would be to the
defense of the case and to show why the depositions of these witnesses could not be used
successfully, furnished a reasonable basis for [the trial judge] to find that the defendant failed
to sustain its burden of showing that the balance as to the convenience of the witnesses was
so strongly in favor of the defendant as to overcome the weight to be given to the plaintiff‟s
choice of forum.”) (quoting General Portland Cement Co. v. Perry, 204 F.2d 316, 397 (7th
Cir. 1953)). In this case, the trial court noted at the hearing on the motion to dismiss that it
had not been furnished with any list of witnesses that would be unable to be presented live at
trial, the materiality of these witnesses‟ testimony, or anything detailing “the strong
likelihood” that Wright Medical will be done an injustice if forced to litigate in Tennessee. A
thorough review of the record on appeal reveals no such document was submitted by Wright
Medical.4
Finally, and most importantly, in Package Express, “the vast majority, if not all, of the
witnesses reside[d] in Missouri.” Package Exp., 788 S.W.2d at 563. The same is simply not
true in this case. Here, Mr. Pantuso argues that his complaint concerns not the medical
treatment he received in Utah, but the design, manufacture, and marketing of the Profemur
hip devices. It is reasonable to assume that witnesses who are able to testify to these issues
will be available in Tennessee, as Wright Medical is headquartered here. In its brief to this
Court, Wright Medical asserts that all employees of Wright Medical will be available through
traditional discovery. Specifically, in its brief, Wright Medical asserts that: “Wright
Medical‟s counsel has represented Wright Medical employees and former employees, and,
therefore, Wright Medical can procure their presence at depositions and trials. Further Wright
Medical‟s documentary evidence can be produced no matter where the action is pending,
since Wright Medical would be a party.”
This statement in Wright Medical‟s brief, however, is not an accurate reflection of
Wright Medical‟s assurances in the trial court. Indeed, at the June 2, 2014 hearing on the
motion to dismiss, the trial court questioned whether Wright Medical “would assure [Mr.
Pantuso] contractually, because that is what this is going to be if they dismiss this and go up
4
We note that the witnesses that reside in Utah generally concern medical treatment received by Mr.
Pantuso. Accordingly, it is not clear from the record that Wright Medical was able to obtain the necessary
information to determine the names and materiality of each and every medical witness at this early stage of
litigation. However, several medical providers are named in Mr. Pantuso‟s complaint. Accordingly, it appears
that Wright Medical could certainly have provided the names and the materiality of the testimony of these
medical providers as support for its motion to dismiss. Wright Medical, however, failed to do so.
14
there, that all those witnesses and anybody else they want from Wright Medical will be
compelled to come testify in person in Utah?” Counsel for Wright Medical responded that:
“To my knowledge, they‟ve never asked us if we would consent to do that. And I don‟t have
authority to tell you that right this instant.” From our review of the trial court record, no such
assurance was ever offered by Wright Medical. Accordingly, despite Wright Medical‟s
contentions in its brief, we are unwilling to assume that Mr. Pantuso will be able to obtain
live testimony from all Wright Medical‟s employees and formers employees should the case
be dismissed in Tennessee and refiled in Utah.
Because of Mr. Pantuso‟s possible inability to call all his necessary witnesses in Utah,
the trial court specifically found that “one or the other side will be inconvenienced.” Under
these circumstances, we must agree with the trial court‟s finding that regardless of where the
case is litigated, one side may be prejudiced by its inability to call live witnesses. The trial
court determined that given the fact that both sides would be prejudiced, Wright Medical
failed to meet its burden to show that dismissal was appropriate. This Court has previously
held that where “trials promise to be costly, time-consuming, and difficult for the litigants
regardless of whether they are held in Tennessee or [another forum,]” the trial court was
within its discretion to conclude that the private factors do not weigh in favor of dismissal on
the basis of forum non conveniens. See Bridgestone/Firestone, 138 S.W.3d at 207.
Consequently, we agree that Wright Medical has “„failed to sustain its burden of showing
that the balance as to the convenience of the witnesses was so strongly in favor of [Wright
Medical] as to overcome the weight to be given to [Mr. Pantuso‟s] choice of forum.‟”
Zurick, 426 S.W.2d at 775 (quoting Perry, 204 F.2d at 397).
From our review, the other factors outlined in Zurick also do not favor dismissal.
First, unlike in Zurick, this case does not involve two opposing parties who are both non-
residents, or even a plaintiff/resident and a defendant/non-resident. See Zurick, 426 S.W.2d
at 773 (“The non-residency of the parties is a factor in application of the doctrine when
considered with other circumstances relating to non-residency.”). According to the Zurick
Court, this factor is relevant “when the forum chosen by the plaintiff would require a
defendant a great expense and inconvenience to transport himself and/or his witnesses a long
distance[.]” Id. Clearly, this factor cannot apply in this case, as Wright Medical seeks to
move this litigation from its own home domain to a forum hundreds of miles away. In
addition, there is no dispute that this case will not require either party to present proof
regarding premises, where a view of the premises would be relevant. See id. at 772.
Accordingly, this factor cannot militate in favor of dismissal.
15
Wright Medical next contends that this Court should consider persuasive Masters v.
Wright Medical Technology, Inc., 2:11-cv-2451 (W.D. Tenn. May 9, 2012), which also
concerned the availability of foreign witnesses in a case against Wright Medical. In Masters,
the plaintiff was a resident of Great Britain and all of her medical treatment related to the
implantation of the Profemur hip device occurred there. Wright Medical asserted generally
the same argument in favor of dismissal due to its inability to compel foreign witnesses to
testify. The trial court agreed with Wright Medical and dismissed the complaint on the basis
of forum non conveniens.
We respectfully decline to follow Masters for several reasons. First, the Masters
decision was issued by a federal district court; while it may be persuasive, it has no
precedential value and we are free to disregard its decision. See Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011) (“Although federal judicial
decisions „interpreting rules similar to our own are persuasive authority for purposes of
construing the Tennessee rule,‟ they „are non-binding even when the state and federal rules
are identical.‟”) (quoting Harris v. Chern, 33 S.W.3d 741, 745 n. 2 (Tenn. 2000)). Second,
the Masters decision is a trial court decision; accordingly, the Masters Court was tasked with
making an initial determination as to whether the doctrine of forum non conveniens required
dismissal. See Masters, 2:11-cv-2451, at *1. In this case, however, we are not tasked with
making an initial determination, but must review the trial court‟s decision to deny the motion
to dismiss under the deferential abuse of discretion standard. See Richardson v. Spanos, 189
S.W.3d 720, 725 (Tenn. Ct. App. 2005) (describing the abuse of discretion as “deferential”).
As such, the procedural posture and standard of review in Masters are simply not analogous
to the situation presented in this case.
Finally, the Masters Opinion bases its decision to dismiss on the law that where a
plaintiff is “foreign,” the plaintiff‟s choice in forum “is given less deference.” Masters, 2:11-
cv-2451, at *2 (involving a plaintiff resident of Great Britain). Indeed, the federal cases that
have applied this less deferential standard have typically involved claims filed by plaintiffs
from foreign countries. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 235, 102 S. Ct. 252,
255, 70 L. Ed. 2d 419 (1981) (involving plaintiff residents of Scotland); Stewart v. Dow
Chem. Co., 865 F.2d 103, 104 (6th Cir. 1989) (involving a Canadian plaintiff); see also
Duha v. Agrium, Inc., 448 F.3d 867, 874 (6th Cir. 2006) (noting that “[t]his lesser standard
of deference should presumptively not apply to a U.S. plaintiff‟s choice of forum”); but see
Cincinnati Ins. Co. v. O’Leary Paint Co., 676 F. Supp. 2d 623, 632 (W.D. Mich. 2009)
(applying the less deferential standard where the plaintiff was a non-resident of the forum
state). Tennessee Courts have never indicated that a less deferential standard will apply to the
plaintiff‟s choice of forum where the plaintiff is not a resident of Tennessee. Because this
case involves a dispute between two United States citizens and Tennessee law has never
16
applied a less deferential standard in this situation, we decline to assign the Masters decision
any persuasive value.
In sum, although we agree with Wright Medical that it may be prejudiced by its
inability to call live witnesses, we must balance this prejudice against the prejudice that may
result to Mr. Pantuso if he is likewise unable to also call live witnesses. In addition, because
Wright Medical is headquartered in Tennessee, we cannot give great weight to its argument
that requiring it to litigate in its home state will cause it considerable expense and
inconvenience. Given the deference accorded to a plaintiff‟s choice of forum, we cannot
conclude that the balance of the private factors weighs in favor of dismissal.
Public Factors
Wright Medical next asserts that the public factors weigh in favor of dismissal. We
respectfully disagree. As previously discussed, the public factors that must be considered
include: (1) whether a Tennessee court will be required to apply the law of another forum; (2)
whether the litigation in Tennessee will impose a burden on our courts and jurors; and (3)
whether another forum has a greater interest in deciding the controversy. See Zurick, 426
S.W.2d at 772 (quoting Gilbert, 330 U.S. at 508).
Wright Medical first contends that Tennessee courts will be required to apply Utah
law in deciding the issues presented in this case, and that the large number of cases involving
Wright Medical will result in a strain on the Shelby County Circuit Court. Mr. Pantuso does
not appear to dispute that this case will involve the application of Utah law, or that the large
number of filings against Wright Medical, in addition to other cases, could possibly cause
strain or delays in Shelby County Circuit Court. In Zurick, however, the Tennessee Supreme
Court indicated that this factor would only weigh in favor of dismissal where the law to be
applied is “so materially different from our own that their application would present
difficulty to the court; or the laws of the foreign state, applicable to the case, are against the
public policy of our State.” Id. at 774 (citing Mexican Nat. R. Co. v. Jackson, 89 Tex. 107,
33 S.W. 857, 31 L.R.A. 276 (Tex. 1896); Whitlow v. N.C. & St. L. Ry. Co., 114 Tenn. 344,
357, 84 S.W. 618, 68 L.R.A. 503 (1904)). The Zurick Court concluded that because the
defendant failed to show that the applicable law was materially different from the law of
Tennessee or in violation of Tennessee‟s public policy, the defendant failed to meet its
burden to show that this factor weighed in favor of dismissal. Zurick, 426 S.W.2d at 774.
The same is true in this case. Nothing in Wright Medical‟s brief to this Court explains or
even asserts that Utah‟s product liability law is so materially different from Tennessee law as
to present great difficulty for our courts or that Utah law in any way violates public policy.
Accordingly, this factor cannot weigh in favor of dismissal.
17
We also respectfully reject Wright Medical‟s argument regarding the strain this case,
and others like it, will place on the Shelby County Circuit Court. In Bridgestone/Firestone,
the Court of Appeals concluded that this factor weighed in favor of dismissal as:
[T]he trial of these cases will involve the civil codes of at least
eleven different Mexican states. This means that the cases would
not likely be consolidated into a single action for trial, given the
substantial likelihood of jury confusion arising from the
multiplicity of statutory schemes. It follows that multiple juries
would have to be empaneled increasing the burden upon the
community of Davidson County. This burden does not seem
warranted, considering that Davidson County's only link to the
litigation is Firestone‟s alleged conspiratorial activity. By
contrast, Mexico is linked to the current litigation by almost
every critical event at issue. As such, the public interest factor
regarding jury duty would seem to favor dismissal.
Bridgestone/Firestone, 138 S.W.3d at 209. Unlike in Bridgestone/Firestone, Wright
Medical offers no explanation as to how Shelby County Circuit Courts will be overburdened
by litigation involving Wright Medical, other than a conclusory assertion regarding the
number of cases filed. Indeed, there is nothing in the record to establish that Shelby County
juries would be confused by the issues presented in this case or that none of the other pending
cases can be consolidated.5
Additionally, as previously discussed, this Court‟s review is limited to determining
whether the trial court “review[ed] and balance[]d the public and private factors that guide
any consideration of the doctrine” of forum non conveniens. Bridgestone/Firestone, 138
S.W.3d at 205. The trial court clearly considered Wright Medical‟s argument regarding the
strain this case may cause, but ultimately rejected this argument, finding that it was
insufficient to defeat the plaintiff‟s choice of forum. We are unwilling to second-guess a trial
court‟s decision regarding its ability to manage a voluminous docket.
Wright Medical also argues that “Utah has a greater interest in the outcome of this
case because it is where the alleged injuries occurred.” According to Wright Medical, Utah
courts and jurors should decide this controversy, as all of Mr. Pantuso‟s injuries allegedly
occurred in Utah. To support this argument, Wright Medical relies on this Court‟s Opinion in
Bridgestone/Firestone. As previously discussed, the Bridgestone/Firestone case involved
5
Unlike in Bridgestone/Firestone, the pending cases against Wright Medical were not consolidated
for purposes of this appeal. We note, however, that there is a pending motion filed by Mr. Pantuso in which he
requests consolidation of all pending cases against Wright Medical for pre-trial activities.
18
product liability claims involving Mexican citizens, where the products were utilized and
allegedly failed in Mexico. As the Court explained:
In the present matter, all the deceased were from Mexico; all the
plaintiffs are from Mexico; the cars and tires at issue were
purchased in Mexico; the cars and tires at issue were serviced
and maintained in Mexico; the accidents all occurred in Mexico;
and Mexican law will govern all substantive issues. In short, the
present litigation is of primary local interest to Mexico, rather
than Tennessee. The plaintiffs‟ allegations of a conspiracy
involving Firestone are not sufficient to counterbalance
Mexico's interest, as a sovereign nation, in deciding
controversies that involve its citizens and occur within its
borders.
Bridgestone/Firestone, 138 S.W.3d at 210. We agree that the facts in Bridgestone/Firestone
are somewhat analogous to this case. There are some important differences, however.
First, unlike in Bridgestone/Firestone, this case does not involve the interest of a
sovereign nation to decide controversies involving its own citizens. In addition, a careful
review of the claims asserted by Mr. Pantuso indicate that his claims have little relation to the
medical treatment he received in Utah; instead, he claims that his injuries result from
decisions made by Wright Medical at its headquarters in Tennessee. Accordingly, the State of
Tennessee has an interest in having the case resolved here. Finally, unlike in this case, the
Bridgestone/Firestone Court concluded that other factors weighed in favor of dismissal,
including the likelihood that a Tennessee court presiding over the case would be required to
apply materially different Mexico law and the fact that thirty-one juries were likely to be
required to resolve the pending disputes. See id. at 209. Given the fact that most other factors
either do not weigh in favor of dismissal or are equally balanced between the parties, we
cannot conclude that this factor alone renders the trial court‟s denial of the motion to dismiss
an abuse of discretion.
In sum, after considering the relevant public and private factors, we cannot conclude
that the trial court abused its discretion in denying Wright Medical‟s motion to dismiss on the
ground of forum non conveniens. The trial court‟s judgment is, therefore, affirmed.
Conclusion
The judgment of the Circuit Court of Shelby County is affirmed and this cause is
remanded to the trial court for all further proceedings. Costs of this appeal are taxed to
Appellants Wright Medical Technology, Inc. and Wright Medical Group, Inc. and their
surety.
19
_________________________________
J. STEVEN STAFFORD, JUDGE
20