Imagine this scenario: eight German residents are injured during hip replacement surgeries performed in German hospitals by German doctors. They all claim that an allegedly defective medical device used during the surgeries caused their injuries. Americans and Europeans designed and assembled the medical device. German and European authorities regulated it. German residents handled installation and maintenance of the machines. When filing their lawsuit seeking damages, the German plaintiffs choose California as the forum simply because the product manufacturer is a California corporation.

With the ever increasing impact of globalization, such a scenario is becoming more and more common. Foreign plaintiffs injured by American manufactured products in their home countries likely will continue to file product liability actions in American courts rather than “at home” at an increasing rate. Why? The reasons are simple. Compared with virtually all other forums throughout the world, the American legal system favors plaintiffs with generous strict liability provisions, large verdicts, and the availability of punitive damages. These characteristics of the American system, combined with more “defendant friendly” rules and verdicts in virtually every other jurisdiction throughout the world, explain why a defendant would want to spend the time and money on a motion to dismiss the case in favor of an alternative forum outside the United States.

So, is there any way to curb the influx of foreign plaintiffs into our legal system? Since the plaintiffs usually wisely fife their actions in the product manufacturer's home state, venue objections are rarely an option. As a result, ‘assuming no statute of limitations or other similar defenses are available, the only available option for many product liability defendants is the seldom used doctrine of forum non conveniens. This article provides the anatomy of a winning forum non conveniens motion when faced with a product liability action brought by foreign plaintiffs injured by a product in their home country or countries.

The Common Scenario Explored

As you might have expected, the scenario presented above is not fiction. It is a simplified version of the fact pattern in a case filed last year in Yolo County, California. In that case, the eight German plaintiffs sought damages for injuries allegedly caused by a medical device in connection with their hip replacement surgeries in Germany. In addition, the plaintiffs sought to be class representatives for over 1,000 other Germans with similar claims. The complaint only alleged product defect and failure to warn claims against the product manufacturer. Despite the fact that doctors and computer technicians operated the device throughout the surgical procedure, the plaintiffs did not name any other parties as defendants. The omission of other defendants likely resulted from the fact that the California court would not have had personal jurisdiction over any of the other parties involved in the subject hip replacement surgeries (e.g., German doctors and hospitals).

The plaintiffs were able to bring the case in California because the defendant product manufacturer was a California corporation doing business in Davis, California, which is in Yolo County. Apart from being based there, the company had very little contact with California related to the machines at issue. Both Europeans and Americans designed and assembled the devices, and most of the parts in the devices were from countries other than the United States, including Scotland and France.

As many American manufacturers do, the device manufacturer initially sold most of its products in Europe because the regulatory approval process there is much more expeditious than the U.S. Food and Drug Administration (FDA) approval process, which usually takes several years. In fact, of the 50 devices sold worldwide at the time of the lawsuit, German hospitals and clinics purchased 28 of them. The other 22 devices ended up elsewhere in Europe, Asia and North America. Use of the device in the United States was limited to clinical trials because the FDA had not yet approved the device.

Notwithstanding the lack of FDA approval, the device had been certified for sale and distribution in Europe by European and German regulatory bodies since 1994. The device also obtained a Conformitee Europeenne (CE) marking, indicating that the product is in compliance with European directives, requirements, and conformity assessments. As part of the CE marking process, the manufacturer had to provide all of the device's design records, device standards, and test results to the authorizing agency for CE markings, which is located in Cologne, Germany.

The vast majority of the devices sold in Germany were not purchased from the United States. Rather, the manufacturer's subsidiaries in Europe sold 26 of the 28 devices in Germany, and six Europeans, including four German residents, played key roles in the product rollout in Germany. Those six individuals installed and maintained the devices, and trained the physicians and technicians at the hospitals and clinics.

Concurrent with its use by hospitals and clinics in Germany, the device was the subject of several German clinical studies and an investigation conducted by a German regulatory authority. The studies showed that the system performed as designed and executed its planned result with a high degree of precision. At the time of the lawsuit, no regulatory authority had disapproved of the use of the system in Germany.

Presented with these facts and claims, our law firm, as the California manufacturer's defense counsel, sought to dismiss the action on a forum non conveniens theory.

Forum Non Conveniens Primer

If you are more than 10 years out of law school, practice locally for the most part, did not pay attention during civil procedure class, or all of the above, chances are you do not remember the ins-and-outs of the forum non conveniens doctrine. Briefly stated, “[f ] orum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the. action may be more appropriately and justly tried elsewhere.” Stangvik v. Shiley, Inc ., 54 Cal. 3d 744, 751 (1991).

While formulation of the relevant standards differs slightly from state to state, most jurisdictions analyze forum non conveniens motions under some variation of the following framework and attendant factors derived from the United States Supreme Court decisions, Gulf Oil Corp. v. Gilbert , 330 U.S. 501 (1947), and Piper Air raft Co. v. Reyno , 454 U.S. 235 (1981).

The court first must determine whether the alternate forum is a suitable place for trial, assessing whether the alternate forum has (a) jurisdiction over the entire case and (b) a viable remedy. If the other forum is not suitable, the inquiry ends and the motion must be denied. If, however, the other forum is suitable, the court continues its inquiry.

Should the alternate forum prove suitable, the court will then consider and balance several “private interest” factors in assessing the convenience of the forum to the litigants, keeping in mind that a foreign plaintiff's choice of forum is entitled to less deference than a resident plaintiff's choice of forum. The private factors typically include:

Finally, if the analysis favors trying the case in a foreign jurisdiction, some jurisdictions require a showing that the plaintiffs can reinstate their action in the alternative forum without undue inconvenience or prejudice. Most courts consider this factor as part of the threshold “adequate forum” analysis.

Assuming the alternative forum is “suitable,” courts typically consider and balance all of the relevant factors to determine which forum is more “convenient” for the litigation, and no one factor determines the outcome of a forum non conveniens motion. [Note: In a very small number of jurisdictions ( e.g ., Connecticut, D.C. Circuit), some controversy exists as to whether courts only consider the public interest factors if the private interest factors fail to establish a “more convenient” forum.] With that in mind, the sections below provide tips on how to frame each factor to give your client the best chance to dismiss a product liability action involving foreign plaintiffs.

Of course, any reader about to embark on a forum non conveniens analysis should not only consult this article and the U.S. Supreme Court's analyses in Gulf Oil and Piper , but should also verify the precise formulation of the analytical framework under the appropriate jurisdictional precedent. While several states follow the framework stated above (e.g., Connecticut, California, Illinois), other states have formulated a framework and/or emphasized factors that differ from those stated here. See, e.g., Candlewood Timber Group, LLC v. Pan Am. Energy, LLC , 859 A.2d 989 (Del. 2004) (indicating that Delaware courts follow a framework based on the six “ CryoMaid ” factors taken from Gen. Foods Corp. v. CryoMaid, Inc ., 198 A.2d 681 (Del. 1964)); see also Islamic Republic of Iran v. Pahlavi , 467 N.E.2d 245 (N.Y. 1984) (holding that a suitable alternative forum is not a prerequisite to dismissal under the forum non conveniens doctrine).

A Winning Motion
Suitability of the Alternate Forum

As a threshold inquiry in most jurisdictions, a court evaluating a forum non conveniens motion must determine whether the alternate forum is a suitable place for trial. While the standards for this determination vary somewhat from state to state, a forum is very likely suitable if jurisdiction exists and the plaintiff has a possible remedy in that forum. Stating that a “forum is suitable where an action ‘can be brought,' although not necessarily won,” California courts require only that: (i) jurisdiction exists; and (ii) no statute of limitations bars hearing the case on the merits. Chong v. Superior Court , 58 Cal. App. 4th 1032, 1036-37, 68 Cal. Rptr. 2d 427 (1997) (citing Shiley, Inc. v. Superior Court , 4 Cal. App. 4th 126, 131, 6 Cal. Rptr. 2d 38 (1992)).

Importantly, what is not relevant to the “suitability” determination is whether the plaintiff has the same odds of winning its case in the alternative forum. In fact, a forum is not rendered “unsuitable” because of a possible unfavorable change in the law unless the change in the law results in no possible remedy for the plaintiff. Piper , 454 U.S. at 254-55. This remains true even if the plaintiff will probably lose in the alternative forum because of the unfavorable change in law. It also remains true if the home forum allows strict liability actions and the alternative forum does not. All that the defendant needs to show is that the plaintiff has some remedy, not an identical remedy, in the other forum.

Under this lenient standard, getting past the threshold “suitability” determination should not be too difficult, assuming the other country provides due process and does not completely bar product liability actions.

Courts have held that several foreign countries are suitable places for trial, considering various grounds in their analyses.

For example, the presence of an independent and developed judiciary, the expectation that the foreign jurisdiction will honor any applicable treaties or international agreements, and adequate or comparable discovery rules have all factored into decisions finding an adequate alternate forum. Further, the lack of a jury trial typically does not preclude a finding of suitability. Lockman Found. v. Evangelical Alliance Mission , 930 F.2d 764, 768 (9th Cir. 1991) (lack of jury trial did not preclude dismissal); but see Lehman v. Humphrey Cayman Ltd ., 713 F.2d 339, 345-46 (8th Cir. 1983) (considering a likely lack of access to a jury trial in reversing a dismissal based on forum non conveniens doctrine). Considering factors such as these, U.S. courts have found several adequate forums in countries within Europe, Asia, and Australia. Piper, 454 U.S. 235 (Scotland provided a suitable forum); Durkin v. Intevac, Inc ., 782 A.2d 103, 112 (Conn., 2001) (collecting cases that held Australia is a suitable forum); Kashyap v. Babcock & Wilcox , 702 N.Y.S.2d 267 (N.Y. App. Div. 2000) (India presents a suitable forum); Dragon Capital Partners v. Merrill Lynch Capital , 949 F. Supp. 1123 (S.D.N.Y. 1997) (Hong Kong presented an adequate forum); Chong , 58 Cal. App. 4th 1032 (same); Stangvik , 54 Cal. 3d 744 (Sweden and Norway are suitable alternate forums); Jones v. Searle Laboratories, 444 N.E.2d 157 (Ill. 1982) (United Kingdom is a suitable forum).

In the hip replacement medical device case described above, we successfully argued that Germany also was an adequate alternative forum. In doing so, we had a German attorney prepare and execute declarations establishing that German courts would have jurisdiction over the defendant manufacturer, despite it being a foreign manufacturer, if any or all of the complaining plaintiffs were to file suit against it in Germany. To ensure jurisdiction of the German courts, we also had our client stipulate to jurisdiction ( i.e., waive any jurisdictional objections) if the plaintiffs re-filed in Germany. In addition, the German attorney's declarations emphasized that the German statute of limitations was more lenient than California's and the plaintiffs would not suffer any prejudice in this regard by filing their case in a German court. Finally, the declaration made clear that plaintiffs, if successful, could recover damages, including pain and suffering damages, in German courts under a strict liability or negligence theory.

While U.S. courts readily find suitable alternate forums in foreign countries, not all forums have made the cut. For example, in Phoenix Canada Oil Co. v. Texaco, Inc ., 78 F.R.D. 445 (D. Del. 1978), a federal district court found that Ecuador did not present a suitable forum for trial because it was (at that time) controlled by a military government that had a veto-like power over judicial matters of national concern, calling into question the judiciary's independence. See also Canadian Overseas Ores Ltd. v. Compania, etc ., 528 F. Supp. 1337, 1342 (S.D.N.Y. 1982) (Chilean courts controlled by military forces presented an unsuitable forum); Rasoulzadeh v. The Assoc. Press , 574 F. Supp. 854, 861 (S.D.N.Y. 1983) (holding that Iran was not a suitable forum because plaintiffs were not likely to “obtain basic justice” there due to asylum issues and the fact that Iranian mullahs administered the courts); Cabiri v. Assasie-Gyimah , 921 F. Supp. 1189, 1199 (S.D.N.Y. 1996) (denying the motion because the plaintiff was “highly unlikely to obtain justice in the Ghanaian courts, and that to force plaintiff to bring this action in Ghana would unnecessarily put him in harm's way.”).

In briefing the “suitability” prong, defendants must remember that it is their burden to demonstrate that an adequate alternate forum exists and argue accordingly. Instead of general or conclusory statements regarding the adequacy of the alternate forum, defendants, through appropriate declarations ( e.g ., foreign attorneys, client), should provide the court with concrete facts showing that the other forum's statutes, procedural rules, and other relevant characteristics establish “suitability.” The declarations should include variations of the following to the extent they are applicable:

Overcoming Plaintiff's Choice of Forum

Normally, a plaintiff's choice of forum is given great deference by U.S. courts, rising to the level of a rebuttable presumption. Naturally then, in a forum non conveniens determination, courts usually apply a strong presumption in favor of the plaintiff's choice of forum and thus deny the motion unless the defendants can show that the public and private interest factors, on balance, strongly militate in favor of adjudicating the action in the other forum.

In the case of a foreign plaintiff that has filed a lawsuit in a U.S. forum, however, the presumption in favor of the plaintiff's choice of forum is substantially weakened. In Re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. , 1984, 809 F.2d 195, 202 (2d Cir. 1987); Picketts v. Int'l Playtex, Inc ., 576 A.2d 518, 524-25 (Conn. 1990). The U.S. Supreme Court further held that a foreign plaintiff's choice of a domestic forum deserves little deference because such a choice is inconsistent with a reasonable assumption that the plaintiff chose the forum for the sake of convenience. Piper , 454 U.S. at 255 -56.

Moreover, a defendant's residence is presumed to be a convenient forum, but that presumption can be overcome with a simple showing that the other forum is a more convenient place to litigate the action. Stangvik , 54 Cal. 3d at 756. Thus, when a foreign resident sues a manufacturer in its home state, the manufacturer can obtain a dismissal of the case under a forum non conveniens theory by showing that a balancing of the private and public interest factors favors litigation in the other forum.

For instance, in our medical device case, the German plaintiffs' choice to file suit in California was entitled to weakened deference, notwithstanding the fact that our client had its principal place of business in California. While the defendant corporation's residence ( i.e., state of incorporation and principle place of business) was presumed to be a convenient forum, we still prevailed on the motion because an examination of the private and public interest factors showed that Germany was a more convenient and appropriate forum. See Stangvik , 54 Cal. 3d at 756 (dismissing a case based on forum non conveniens doctrine despite the fact that the defendant corporation was a California resident).

In light of the above, we will now focus on how to frame the arguments concerning each of the private and public interest factors to give your client manufacturer the best chance of success.

Private Interest Factors

As discussed above, if the court decides that the proposed alternate forum is a suitable place for trial, it must then analyze and balance several private interest factors to determine whether that forum is a more convenient place for trial than the plaintiff's chosen forum. No single factor is dispositive on the matter, and the court must apply the factors flexibly “without giving undue emphasis to any one element.” Stangvik, 54 Cal. 3d at 756.

A defendant making a forum non conveniens motion should always bear in mind that it has the burden of persuading the court that the chosen forum is inconvenient. See, e.g., Picketts, 576 A.2d 518 (framing much of the private interest factor analysis in terms of the defendant's burden). As a result, and given the highly factual nature of these motions, defendants should provide the court with as much information as is reasonably possible to help the court's decision making process, balancing the value of the information with the cost of procuring that information. Without conducting an extensive investigation that would defeat a critical purpose of the forum non .conveniens motion (i.e ., avoiding extensive discovery in the U.S. at a preliminary stage of the litigation), a defendant must provide enough information to allow the court to balance the relative interests. Piper , 454 U.S. at 258-59. Bare assertions of inconvenience and generalized complaints about the lack of access to evidence will not suffice, and it behooves the moving party to make the extra effort to compel the court in its favor.

Access to Sources of Proof

In discussing access to sources of proof, defendants should provide as much information as is reasonably available, in light of cost and strategic issues, demonstrating that there is a lack of, or burdened access to, material sources of proof if the case proceeds in the domestic forum. Such evidence may come in the form of the location of potential witnesses, documentary evidence, and/or physical evidence, and it should be submitted via affidavits or declarations. Further, when the information relates to the need for access to witness testimony, the affidavits should contain (where possible) the names of the potential witnesses, their respective locations, and a general statement regarding the subject matter of the testimony that witness is expected to provide. Piper, 454 U.S. at 258-59; Picketts, 576 A.2d at 528.

In our medical device case, this factor, including the location of potential witnesses and relevant documents, strongly favored a finding that the case should be heard in Germany rather than California. To establish the necessary sources of proof and their locations, we obtained a declaration from the manufacturer's chief executive officer setting forth several facts relating to sources of proof, including:

While it is important to discuss fully and provide concrete examples relating to this factor, the ease of access to sources of proof is not as important today to the analysis as it was 30 years ago. Due to the immediate delivery options for persons and documents, and the effects of globalization, it is pretty easy to get anybody and anything in the world to another location within one or two days. That being said, this factor still plays a role in the court's analysis and should not be ignored by the moving party.

Availability and Cost of Producing Friendly and Unfriendly Witnesses

The domestic court's lack of subpoena power over key witnesses weighs heavily in favor of dismissal on forum non conveniens grounds. The parties potentially suffer the prejudice of an incomplete proceeding if the U.S. court cannot compel the attendance of key nonparty witnesses. Courts have repeatedly acknowledged the relevance of the fact that foreign citizens are beyond the reach of compulsory process, which would result in their unavailability. Chong , 58 Cal. App. 4th at 1039; People v. Denson , 178 Cal. App. 3d 788,792-94; but see Warburg, Pincus Ventures, L.P. v. Dietrich K.H. Schrapper, M.D ., 774 A.2d 264, 270 (Del. 2001) (noting that if the courts do not have compulsory process over witnesses, defendants must identify with specificity the identity of the witnesses and explain why the persons are significant witnesses). Therefore, as to key witnesses over whom a court will likely need to exercise compulsory process (i.e., nonvoluntary witnesses), defendants must identify and emphasize the importance of witnesses who are “outside the reach” of the U.S. court's subpoena power.

Similarly, the defendant should focus on the practical considerations regarding the cost of obtaining friendly witnesses' attendance at trial or deposition. The moving party should contrast the costs to the parties and their “friendly” witnesses if the proceeding were to be held in the U.S. forum with those same costs if the case were to be held in the alternate forum. For example, if a helicopter accident occurred in Australia and several key witnesses reside in Australia, the defendant should highlight the fact that the voluntary witnesses and/or the parties would likely incur much more expense if the case were held in the United States rather than in Australia.

In the example medical device case, we established that the defendant would not be able to compel the presence of key witnesses at trial or deposition if the action were to proceed in California. In particular, we emphasized that several critical categories of witnesses would be absent from the proceedings, including the doctors and healthcare personnel responsible for the plaintiffs' surgeries, individuals knowledgeable about the plaintiffs' damages ( e.g., family members, employers), representatives of the German and European regulatory bodies, and individuals who conducted clinical trials of the medical device in Germany.

In addition, the majority of potentially voluntary witnesses ( e.g., treating physicians, friends/family of plaintiffs) were located in Germany and would have to incur expense to take part in a trial located in California. In contrast, the costs of obtaining their testimony in Germany would have been minimal.

Thus, when discussing the potential witnesses in the case, emphasize the number and importance of witnesses in the other forum, as compared to the current forum.

Need to View the Accident Scene

If there is a legitimate need for the jury and/or expert witnesses to view the accident scene in the alternate forum, such a need further favors dismissing the action on forum non conveniens grounds, and the defendant should thus highlight it in the motion. Notably, however, this factor is usually not too relevant to a forum non conveniens decision in product liability cases, unless the subject product cannot be transported and must be viewed at its current location, or the product was involved in a crash or other catastrophic event.

Enforceability of a Judgment

Another practical and highly significant factor in the court's private interest analysis is the difficulty, or lack thereof, of enforcing a judgment against the defendant if the case is dismissed and the plaintiff ultimately obtains such a judgment in a foreign forum. In connection with this factor, defense counsel should review applicable state statutes and treaties. And; if applicable, counsel should argue that those statutes and treaties, such as the Uniform Foreign Money Judgments Recognition Act (where enacted), as well as principles of comity would dictate acknowledgement of any judgment by courts in the defendant's home state. In Re Union Carbide Corp., 809 F.2d at 204. Finally, to minimize the effect of this factor, defendants can, and should, stipulate to the enforcement of any judgment against it in the alternate forum.

Emphasize Any Other Relevant Factors

A court can also take into consideration any other factors that would make the litigation more expeditious and inexpensive. This category is, of course, a “catch-all” that allows parties to argue any other factors potentially relevant to the court's determination, and allows the courts to use their discretion broadly to consider the entirety of the cases before them.

For example, in the medical device case example, we argued that Germany was a more appropriate forum because the defendant could not effectively seek indemnification or contribution in California from the German doctors and hospitals involved in the subject surgeries, as the Yolo County court did not have jurisdiction over any of them. An inability to implead foreign third parties into a domestic action or seek indemnity from third parties can weigh heavily in favor of dismissal. Piper, 454 U.S. at 267-68; see also Warn v. M/Y Maridome, 961 F. Supp. 1357, 1379 (S.D. Cal. 1997) (same). Thus, to the extent the current forum has no jurisdiction over necessary third party defendants, the moving party should contend that dismissal is necessary to avoid the possibility of inconsistent judgments and the inefficient result of multiple trials, especially when a single trial in the alternate forum is possible.

In sum, when arguing the private interest factors, it is important to be creative, think outside the box, and highlight anything and everything that would reduce the parties' expenses and/or increase efficiency.

Public Interest Factors

The court's final step in analyzing a forum non conveniens motion is balancing several public interest factors. While some courts only consider these factors if the private interests are equally balanced, most U.S. jurisdictions hold that analysis of public interest factors is a necessary and equal consideration in all forum non conveniens motions. Compare Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C. Cir. 1980), and Durkin, 782 A.2d at 112, with Bank of Credit & Commerce Int'l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001), and Jackson v. Am. Univ ., 52 Fed. Appx. 518 (D.C. Cir. 2002) (unpublished decision) (specifically calling into question the analytical steps stated in Pain ). Either way, it is very important to provide the court with a concrete and tangible showing as to why the alternate forum has a much greater interest in the litigation.

Finally, when arguing these factors, remember one critical fact-most U.S. courts are tremendously overworked and often are justifiably eager to get rid of complex disputes involving foreign parties and/or incidents occurring outside of their forum.

Emphasize Burdens on the U.S. Courts

In federal and state courts across the country, dockets are overcrowded and court resources are severely limited. As a result of these and other characteristics of the U.S. legal system, public policy dictates that foreign causes of action should not burden the local courts, and the prevention of “court congestion resulting from the trial of foreign causes of action is an important factor in the forum non conveniens analysis.” Stangvik, 54 Cal. 3d at 758. Thus, any forum non conveniens motion should emphasize the burdens that the litigation would place on the court. Particularly in complex mass tort and/or multiple plaintiff actions where each plaintiff's case will turn on individualized proof, defendants can easily argue that the acceptance of foreign actions would unnecessarily exacerbate the current congestion in the courts. And, such unnecessary clutter in the U.S. courts would lead to further delays for the “preferred potential plaintiffs” - that is, local taxpayers who pay for the administration of those courts.

In the above medical device action, we convinced the court that this factor favored dismissal because all plaintiffs were residents of Germany and all of the subject surgeries and alleged injuries occurred in Germany. Further, there were numerous German residents, in addition to the eight named plaintiffs in the case, who were expected to join the action against our client based upon surgeries performed in Germany. That possible flood of plaintiffs into the Yolo County court system was a critical fact for the court, as it was already overcrowded and thus would have been overwhelmed with a multitude of foreign actions having no real connection to Yolo County. The burdens on the court would have been particularly heavy because class certification in mass tort actions is rare and each plaintiff's claim would have turned heavily on individualized proof as to causation, the running of the statute of limitations, and damages.

Balancing the Forums' Respective Interests

Balancing the forums' respective interests is probably the most important public interest factor, as the court will not want to keep the case if the alternate forum has a much greater interest in the litigation. So, when arguing the competing interests, the key is to play down the interest(s) of the home forum, which usually is limited to the forum's interest in deterring wrongful or negligent conduct by its corporations, by arguing that little or no additional deterrence would result if the case were litigated in the home forum rather than the alternate forum. See Piper, 454 U.S. at 260-261 (holding that, because Scotland had the greater interest in the litigation, “the incremental deterrence that would be gained if [the] trial were held in an American court is likely to be insignificant.”). In fact, if the product is used more in the alternate forum than the home forum, as it was in our case, it is critical to highlight that a negative ruling in the alternate forum is likely to have a greater deterrent effect than a similar finding in the home forum.

One interest of the home forum to emphasize, though, is the interest in protecting its commerce-that is, dismissing foreign actions would prevent “the competitive disadvantage to [the home forum's] business that would result if [the home forum's] manufacturers were called on to defend lawsuits involving extraterritorial injuries.” Stangvik, 54 Cal. 3d at 760.

The moving party must also strongly emphasize the interests of the alternate forum, which usually include protection of its citizens from injuries from allegedly defective foreign products and regulation of corporations doing business in its jurisdiction. For instance in our medical device case, we highlighted Germany's compelling interests in hearing the litigation in German courts. Specifically, Germany had an interest in protecting its own citizens since two-thirds of the approximately 15,000 procedures performed with the medical device took place in Germany (as opposed to approximately 150 in the domestic forum). German doctors performed these procedures in Germany on German patients. Moreover, retention of the case in the U.S. potentially also would have interfered with ongoing regulation of the medical device by German and European regulatory bodies.

Application of Foreign Law by a U.S. Court

The need for application of a foreign law in a U.S. forum also can militate in favor of dismissal. Piper, 454 U.S. at 260 (collecting cases that have held that “the need to apply foreign law favors dismissal”); see also Kashyap, 702 N.Y.S.2d at 268 (noting that the burden on the New York courts of having to apply Indian law favored dismissal). Therefore, when making a motion involving a foreign forum and the application of foreign law (assuming the foreign country's law would govern the action), defendants should argue that the need to apply foreign law favors dismissal because the judges in the alternate forum would be much more familiar with the law and it is unlikely that the presiding judge would have any familiarity with the foreign country's laws. While U.S. courts are competent to apply foreign law when needed, it is an added burden on the courts that is unnecessary when a suitable alternate forum is available.

Interests of Local Residents in the Respective Forums

Courts also consider respective local residents' interests when analyzing forum non conveniens motions. Thus, regarding the plaintiff's chosen forum, defendants should argue that retaining the action will burden local citizens with jury duty in a court system with an already overburdened docket. See Stangvik, 54 Cal. 3d at 751. This is an obvious and weighty argument in light of the impacted court dockets in most jurisdictions. Defendants also should point out that the foreign litigation would force citizens of a local community (i.e ., jurors) to sit through one or more lengthy trials in which they have little or no concern. Moreover, resident plaintiffs in that forum would have to wait longer for their claims to be heard because the litigation would hijack the court's resources for an extended period of time.

Ultimately, when faced with a complaint inconveniently filed in a client's home forum, you should think creatively and realistically when evaluating and arguing the competing local interests of the respective forums. You should strive to show that the local forum's interests are negligible at best, and are greatly outweighed by the foreign forum's interests in the litigation.

Conclusion

Defense attorneys, and especially those who represent manufacturer clients, should always include a forum non conveniens theory as part of their arsenal available to assist in the dismissal of a case filed by a foreign plaintiff in the client's home forum. In making a motion to dismiss using this theory, attorneys need to be as detailed in their briefs as possible without breaking a budget or giving up strategic position. This requires diligence and efficiency in obtaining necessary and supportive facts, and in drafting the briefs and supporting declarations. While time intensive, the success rate increases dramatically when the court has a sufficient and well-framed record with which to work. In the end, we hope that these tips on the use of forum non conveniens will help you dismiss foreign causes of action that have been improperly filed against your clients in their home forums.