Metropolitan News-Enterprise


Monday, June 15, 2015


Page 1


C.A. Upholds Forum Non Conveniens Dismissal Where Plaintiffs Sued ‘Nominal’ California Defendant


By a MetNews Staff Writer


The joinder of a resident defendant will not necessarily preclude application of the forum non conveniens doctrine to other defendants whose ties to California are minimal, the Court of Appeal for this district ruled Friday.

Div. Eight affirmed the dismissal of claims against several defendants in products litigation claims involving Infuse, a medical device approved for use in a limited class of spinal fusion surgeries. Thirty-seven patients who had Infuse implanted for off-label uses alleged they suffered neck and back pain and other ill effects as a result.

The action was filed in Los Angeles Superior Court. Only one of the plaintiffs lives in California, and that plaintiff lives in Sacramento County.  

The defendants include Medtronic, Inc. and affiliated companies—the manufacturers and sellers of Infuse—as well as Wyeth, Inc. and affiliates, which allegedly sold Medtronic a genetically engineered protein that is part of the device, and Dr. Gary K. Michelson, alleged to be one of the inventors of a metal cage used to house the protein.

Michelson is a resident of Los Angeles County. The defendants alleged in their forum non conveniens motions that Michelson wasn’t involved in marketing or manufacturing Infuse, and said his ties to the state should not be considered in concluding whether to grant the motion.

They further argued that the issues as to each plaintiff were unique, and that each plaintiff should therefore be required to litigate in his home state, or in the California plaintiff’s case, in his home county.

Superior Court Judge Terry A. Green agreed and dismissed the action as to all defendants, except that the Sacramento plaintiff’s claims were transferred to the Sacramento Superior Court.

Justice Laurence Rubin, writing for the Court of Appeal, said the trial judge was correct as to all defendants except Michelson.

The plaintiffs, the justice noted, did not argue on appeal that Michelson was more than a nominal defendant, so “this case squarely presents the issue of whether the existence of a nominal defendant, over whom jurisdiction cannot be established in the proposed alternative forum, can defeat a forum non conveniens motion which should otherwise be granted.”

The answer, he said, is no, citing federal precedent.

On the other hand, Rubin wrote, federal courts have divided on whether the “nominal defendant” exception to the rule weighing against dismissal if the selected forum is convenient to at least one defendant requires dismissal of the nominal defendant along with the others. The “only reasonable” answer, the justice said, is that the claims against the nominal defendant should be severed and tried in California.

“Were it otherwise, the nominal defendant – who may, in fact, be liable – would escape liability on nothing more than the moving defendant’s showing that he is at best only peripherally liable, but is not subject to suit in a more convenient forum for pursuit of the main action,” Rubin said.

The case is David v. Medtronic, Inc., 15 S.O.S 2925.


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