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McConnell v. B. Braun Medical Inc.

Superior Court of Pennsylvania

October 16, 2019

BEONCA MARIA MCCONNELL, AN INDIVIDUAL, Appellant
v.
B. BRAUN MEDICAL INC., A PENNSYLVANIA CORPORATION, B. BRAUN INTERVENTIONAL SYSTEMS INC., A DELAWARE CORPORATION, AND B. BRAUN MEDICAL S.A.S., A FRENCH CORPORATION

          Appeal from the Order Dated August 21, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): June Term, 2017 No. 17-0601744

          BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J. [*]

          OPINION

          PELLEGRINI, J.

         The Appellant, Beonca Maria McConnell (McConnell), appeals the order of the Court of Common Pleas of the Philadelphia County (trial court) dismissing her products liability suit against B. Braun Medical Inc. (BMI); B. Braun Interventional Systems, Inc. a Delaware Corporation (BIS); and B. Braun Medical S.A.S., a French Corporation (B. Braun France) (collectively, the Braun Defendants), on the ground of forum non conveniens. McConnell argues that the trial court abused its discretion because the Braun Defendants failed to show that Pennsylvania is an inconvenient forum for her claims. For the reasons below, we vacate the order dismissing her case.[1]

         I.

         McConnell's products liability action arises from the implantation of a "VenaTech LP Vena Cava Filter" (VenaTech Filter).[2] It is undisputed that at the time of the implantation in 2003, McConnell resided in Michigan where the procedure was performed. Between 2008 and 2013, McConnell resided in North Carolina. In 2015, while residing in Texas, McConnell underwent a CT scan that allegedly revealed that the VenaTech Filter had caused recoverable damages.

         According to McConnell's complaint, the device is designed to be implanted in a person's inferior vena cava, a central vein in the heart. Complaint, 6/16/2017, at ¶ 18. The device's purpose is to prevent blood clots from traveling from the legs and pelvis to the heart and lungs. Id. at ¶ 19. Once the VenaTech Filter is literally hooked to the heart, it remains fixed in place permanently and cannot be safely removed. Id. at ¶¶ 20-22.

         McConnell asserts that the device "failed" and has "penetrated through the caval wall," posing a danger of the fatal medical events the device was meant to prevent, as well as the risk of further perforation of her heart. Id. at ¶¶ 23-25. This will require "ongoing medical care and monitoring for the rest of her life." Id. at ¶ 25.

         McConnell filed her complaint in 2017 in the trial court setting forth seven causes of action: Negligence, Strict Products Liability/Failure to Warn, Strict Products Liability/Design Defect, Strict Products Liability/Manufacturing Defect, Breach of Implied Warranty of Merchantability, Negligent Misrepresentation, and Punitive Damages.

         Within the next year and before the parties began discovery, BMI and BIS filed a two-part motion based on the doctrine of forum non conveniens. First, they moved to dismiss McConnell's complaint, arguing that the suit should be refiled in her home state of Texas or in Michigan, where the device was implanted. Alternatively, they sought for the case to be transferred to Lehigh County, Pennsylvania. Once B. Braun France joined the motion, the Braun Defendants all consented to a trial in Texas or Michigan; they also agreed to waive a statute of limitations defense in the event of dismissal.[3]

         At the hearing on the subject motion, the trial court heard argument and took evidence on the forum non conveniens issue. It was undisputed that each of the Braun Defendants had a role in putting the VenaTech Filter into the stream of commerce, but have varying degrees of local presence in McConnell's chosen forum of Philadelphia County. BMI is a Pennsylvania corporation with a headquarters in Lehigh County, Pennsylvania. BIS is a Delaware corporation with a principal place of business in Lehigh County. B. Braun France is a French corporation with no physical presence in the United States.

         B. Braun France designed and manufactured the VenaTech Filter, but the United States Food and Drug Administration (FDA) only approved the domestic sale and marketing of the device in 2001. From that date and on an exclusive basis, BMI imported and distributed VenaTech Filters throughout the United States.

         In 2007, BMI transferred its FDA clearances to BIS, who has since maintained exclusive rights to the VenaTech Filter in the United States. BMI and BIS allegedly marketed the device as safe for permanent placement in a human subject's heart. Either BMI or BIS marketed and sold the particular device at issue in McConnell's suit, along with every other unit of the VenaTech Filter distributed and sold in the United States since 2001.

         The Braun Defendants emphasized at the hearing on their motion to dismiss that the VenaTech Filter was designed and manufactured in France; that McConnell had the VenaTech Filter implanted in Michigan; and that she has never resided in Pennsylvania. They claimed that the parties have minimal connections to Pennsylvania, that Pennsylvania has little interest in the litigation, and that another forum is available and more convenient for trial purposes.

         Notably, however, the Braun Defendants had introduced an affidavit by the president of BIS, Paul O'Connell (O'Connell), who stated that although he resides in Illinois, other "potentially relevant witnesses from BIS - for example, the employees who are responsible for distribution, sales, and post-market surveillance of the VenaTech Filter - reside and work in Lehigh County." O'Connell, Affidavit, ¶ 13.

         In the motion, the Braun Defendants identified and described these potential trial witnesses as follows:

• Doris Benson, a Senior Market and Quality Associate who can testify to distribution, sales, post-market surveillance of the VenaTech Filter.
• Peter Flosdort, an engineering manager responsible for the Quality/Regulatory/Product Development departments, which includes "complaint reporting and medical device report" and investigation of "non-conforming lots" in the event of a recall.
• Jason Curtis, a Project Manager who is a "Quality" designee for BIS in charge of "certain tasks that only he is authorized to perform."

         BMI and BIS, Motion to Dismiss or Transfer for Forum Non Conveniens, 8/8/2017, at 9-12. All three of those BIS employees stated in an affidavit that it would be a hardship for them to leave their homes in Lehigh County in order to attend a trial 60 miles away in Philadelphia County.[4]

         Despite that evidence, the trial court dismissed McConnell's suit. In its opinion, the trial court found that Pennsylvania has little interest in resolving McConnell's products liability claims because "the record indicates - despite the corporate presence of [BMI and BIS] - the decisions and documentation for the locus of [McDonnell's] action arose outside of Pennsylvania." Trial Court Opinion, 2/14/2019, at 10.

         The trial court also outlined several other reasons for granting the dismissal. It reasoned that if the case were re-filed in McConnell's home state, potential difficulties in applying out-of-state law would be avoided and the presence of witnesses could more easily be ensured. Id. It was presumed that causation and damages would be hotly contested issues at trial, and that McConnell's medical care providers in Texas would be unwilling to attend a Pennsylvania trial. See id. at 9.[5]

         The trial court assigned no weight to the fact that employees of BMI and BIS made marketing, sale and distribution decisions within Pennsylvania. Id. at 11-12. Similarly, the trial court ruled that the existence of any documentation or evidence in Pennsylvania would be immaterial. Id. at 10-11. The trial court did not rule on the Braun Defendants' alternative motion to transfer the case to Lehigh County.

         McConnell timely appealed and both McConnell and the trial court complied with Rule 1925. In her brief, McConnell asserts ...


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