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HARRISON v. WYETH LABS. DIV. OF AMERICAN HOME PROD

February 19, 1980

Anthony HARRISON and Janet Harrison
v.
WYETH LABORATORIES DIVISION OF AMERICAN HOME PRODUCTS CORPORATION, et al.



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

Plaintiffs in these actions are all citizens and residents of the United Kingdom. They each allege that they purchased oral contraceptives within the United Kingdom, used them in accordance with the directions and instructions, and as a direct and proximate result of such usage suffered injury, damages, and/or death. Presently before this Court is the defendant's motion to dismiss *fn1" on grounds of forum non conveniens. For the reasons to follow, the motion is granted, subject to the defendant's agreement to the conditions specified in this memorandum and order.

 I

 Plaintiffs allege that defendant has its principle place of business in Pennsylvania, and is engaged in the development, testing, manufacture, production, sale, marketing, promotion and advertising of the oral contraceptives Ovram-30, Ovram, and Ovranette.

 Plaintiffs allege that defendant caused the marketing, sale and distribution of the drugs in the United Kingdom and either actually produced and manufactured the drugs marketed in the United Kingdom themselves, or did so through others by agency, license, or otherwise. Plaintiffs allege that defendant was negligent in its conduct of these activities, and in its failure to give reasonable or adequate warning concerning the serious risk of which it had knowledge associated with the use of these drugs.

  Defendant has submitted the affidavit of David Gibbens, the Secretary of John Wyeth & Brothers Limited (JWB), incorporated under the laws of the United Kingdom, a wholly owned subsidiary of American Home Products Corporation (AHPC). According to the affidavit, JWB is a sub-licensee of AHPC and pays royalties to AHPC for use of synthetic progestrogens, for which AHPC holds the exclusive license, in the contraceptives it manufactures, including Ovram-30, Ovram, and Ovranette. The affidavit states that all three of the drugs are manufactured, packaged and labelled in the United Kingdom by, or on behalf of, JWB for distribution in the United Kingdom and Ireland. The affidavit further states that JWB received product licenses under the laws of the United Kingdom authorizing distribution and marketing of the drugs. Defendant argues that the litigation could and should more conveniently and appropriately be brought in the United Kingdom, as that country is the domicile of the plaintiffs, and the situs of the licensing, manufacture, packaging, prescription, purchase, and ingestion of the drugs. Defendant contends that the activities complained of did not occur in Pennsylvania, and Pennsylvania has no legitimate interest in regulating the conduct of its citizens beyond its borders. Defendant reasons that the marketing decisions were made in light of British regulation and law, and should be judged by the standards of the community affected by the allegedly tortious activity. Thus they argue that the more appropriate forum is a court in the United Kingdom.

 Plaintiffs argue *fn2" that while it may well be true that the particular drugs which caused the injury in these cases were actually manufactured and sold in the United Kingdom, such facts are not dispositive of its claim. Plaintiffs contend that the alleged tortious conduct consisted of marketing the drugs and placing them in the stream of commerce with knowledge that the warning accompanying the drugs was inadequate, thus creating an unreasonable risk of harm, irrespective of where the drugs were sold. Plaintiffs claim that the fundamental manufacturing and marketing decision, conceiving the formula for the drugs, the knowledge of the risks involved, the alleged withholding of adequate warning, and the distribution of the drugs, all were made by defendant in Pennsylvania. Plaintiffs argue that the alleged tortious acts occurred in Pennsylvania, and that Pennsylvania has an interest in and direct concern with the safety of products which emanate from its borders and with conduct which occurs within Pennsylvania which may cause harm to others, regardless of where that harm may have occurred. Plaintiffs thus contend that under Pennsylvania choice of law rules, the law of Pennsylvania would apply in this case.

 II

 Under the doctrine of forum non conveniens a Court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947). The doctrine presupposes at least two forums in which the defendant is amenable to process and furnishes criteria for choice between them. Id. Where the more convenient forum is in a foreign country, the traditional forum non conveniens remedy of dismissal is proper. DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (3rd Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1449, 55 L. Ed. 2d 494 (1978). Determination as to whether to dismiss on grounds of forum non conveniens is entrusted to the sound discretion of the trial court. Paper Operations Consultants Intern., Ltd. v. S. S. Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975).

 
Important considerations are the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining, willing witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.

 Gulf Oil Corp. v. Gilbert, 330 U.S. at 508, 67 S. Ct. at 843.

 Furthermore,

 
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 entangle problems in conflict of laws, and in law foreign to itself.

 Id. at 508, 67 S. Ct. at 843.

 A.

 The local interest in having this localized issue decided at home is strong. A Court versed in the law that must govern the case and familiar with the people and the community in which the law is to govern, is better able to establish the ...


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