J-A21033-18

                               2019 PA Super 112

 FREEMAN MAURICE VAUGHAN, JR.,           :   IN THE SUPERIOR COURT OF
 ADMINISTRATOR OF THE ESTATE OF          :        PENNSYLVANIA
 JANICE VAUGHAN, DECEASED                :
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :   No. 3101 EDA 2017
                                         :
 OLYMPUS AMERICA, INC., OLYMPUS          :
 CORPORATION OF THE AMERICAS,            :
 OLYMPUS MEDICAL SYSTEM CORP.            :
 AND CUSTOM ULTRASONICS, INC.            :

             Appeal from the Order Entered August 18, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 2308 September Term 2016


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                          FILED APRIL 10, 2019

     Decedent Janice Vaughan underwent medical procedures at Carolinas

Medical Center in Charlotte, North Carolina, during which physicians used an

Olympus TJF-Q180V duodenoscope (scope). The scope is designed for reuse

on multiple patients and must be disinfected – or “reprocessed” – after each

use. Allegedly, the scope used on Mrs. Vaughan was contaminated, and she

developed a multi-drug-resistant infection and in May 2015, passed away.

     Her widower, Freeman Maurice Vaughan, Jr., as administrator of her

estate, instituted this suit in Philadelphia. Olympus Medical System Corp.

(OMSC) filed preliminary objections seeking dismissal for lack of personal

jurisdiction, which the trial court sustained. Because OMSC had contacts with

Pennsylvania that were sufficiently related to the causes of action on which
J-A21033-18



Vaughn is suing OMSC, it is subject to Pennsylvania’s specific jurisdiction. We

therefore reverse the order sustaining the preliminary objection to personal

jurisdiction over OMSC.

       Other defendants – Olympus America, Inc. (OAI), Olympus Corporation

of the Americas (OCA), and Custom Ultrasonics, Inc. (Custom) – sought

dismissal based on the doctrine of forum non conveniens. See 42 Pa.C.S. §

5322(e). In our view, the lower court abused its discretion when it found

“weighty reasons” to disturb Vaughan’s choice of forum. See Bochetto v.

Dimeling, Schreiber, & Park, 151 A.3d 1072 (Pa.Super. 2016). Accordingly,

we also reverse the order granting the forum non conveniens dismissal.

I.     Factual and procedural background

       According to the Complaint, OMSC redesigned the scope several years

before Decedent’s procedures but did not update the reprocessing procedures

and instructions, known as the “reprocessing protocol.” See Complaint, ¶¶ 1,

3, 22, 23.1 As a result, end users were allegedly unable to sanitize the

redesigned scope effectively. Id., ¶ 3. Vaughan claims that OMSC failed to

update the reprocessing protocol despite its allegedly receiving notice in 2013

of infections in patients involving scopes in the same product line as the

subject scope, as well as in another line of scopes. Id., ¶ 24.

       The Complaint names three defendants: OMSC, OAI, and OCA. OMSC

allegedly designed and manufactured the subject scope. Id., ¶ 11. OMSC is a
____________________________________________


1See also OMSC’s Br. at 56 (“OMSC as the manufacturer is responsible for
designing the product and creating or revising its reprocessing instructions.”).

                                           -2-
J-A21033-18



foreign corporation organized under the laws of Japan, and has its principal

place of business in Tokyo. Complaint, ¶ 11. As a foreign manufacturer

marketing a medical device in the United States, it must not only register with

the Food and Drug Administration (FDA), but also must designate an agent in

the United States to meet its statutory reporting requirements. See 21

U.S.C.A. § 360(i)(1)(A)(ii); 21 C.F.R. §§ 803.58, 807.40.

       OCA and OAI are New York corporations, and each maintains its principal

place of business in Center Valley, Pennsylvania. OMSC’s Preliminary

Objections, ¶ 6.2 It is undisputed that for FDA purposes, OCA is OMSC’s agent.

See OMSC’s Memorandum of Law in Support of Preliminary Objections, at 12;

Exhibit I to OMSC’s Preliminary Objections, Affidavit of Laura Storms, ¶ 7. In

addition, OCA and OAI are allegedly involved in the marketing, distribution,

and post-marketing safety surveillance of the scope. Complaint, ¶ 9, 10.

       Vaughan alleges that the FDA granted clearance for marketing the scope

pursuant to a procedure known as “section 510(k)[3] premarket notification.”

See Complaint, ¶ 17. Under this procedure, certain classes of medical devices

may be marketed if “the FDA concludes on the basis of the [section] 510(k)

notification that the device is ‘substantially equivalent’ to a pre-existing

____________________________________________


2
 See also OCA’s Answer to Complaint With New Matter, ¶ 10; OAI’s Answer
to Complaint With New Matter, ¶ 9.

3 “Section 510(k)” “refers to the original section of the [Medical Device
Amendments of 1976 to the Federal Food, Drug, and Cosmetic Act] describing
this review process.” Gross v. Stryker Corp., 858 F. Supp. 2d 466, 484 (W.D.
Pa. 2012).

                                           -3-
J-A21033-18



device . . . .” Medtronic, Inc. v. Lohr, 518 U.S. 470, 478, 479 (1996).

Section 510(k) submissions must include, among other things, proposed

labels, labeling, and advertisements sufficient to describe the device, its

intended use, and the directions for its use. Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 345 (2001) (citing 21 CFR § 807.87(e)). After the FDA

granted section 510(k) clearance, OMSC allegedly “remained directly involved

with the dissemination of information about the device such as warnings,

instructions, and other safety information within the U.S.” Complaint, ¶ 17.

      The Complaint also alleges certain of the regulatory duties of a medical

device manufacturer such as OMSC. Id., ¶ 2 (citing 21 C.F.R. §§ 820.181,

820.30(j)). FDA regulations require a device manufacturer to obtain approval

of a device master record, defined as “a compilation of records containing the

procedures and specifications for a finished device.” 21 C.F.R. §§ 820.30,

820.181. This includes information regarding device maintenance, as well as

servicing procedures and methods. 21 C.F.R. § 820.181(e).

      OMSC allegedly had a duty to ensure that an effective and validated

reprocessing protocol is disseminated to medical facilities and professionals.

Complaint, ¶¶ 2, 26. Nonetheless, and despite its redesign of the scope, OMSC

allegedly took no action to update the reprocessing protocol, and thus failed

to provide end users of the redesigned scope an effective and validated

protocol. Id., ¶¶ 23, 27. If OMSC wanted or needed to disseminate

information about changes to the reprocessing protocol, it allegedly would do

so through OCA. Id., ¶ 16.

                                    -4-
J-A21033-18



        Vaughan asserts four causes of action, all four against OMSC, OCA, and

OAI. The causes of action center on the claim that the reprocessing protocol

was inadequate. Vaughan claims negligence for (among other things) the

alleged failure to provide an “effective and validated” reprocessing protocol.

Id., ¶¶ 41(a), 51. He also asserts “fraud-intentional misrepresentation” for

“misrepresent[ing] that the reprocessing protocol . . . was a safe and adequate

means of cleaning and disinfecting” the scope. Id., ¶ 57. He claims “fraud-

negligent misrepresentation” for “falsely represent[ing] that the [scope] would

be disinfected and safe for subsequent use in a new patient after

administration of the reprocessing protocol.” Id., ¶ 68. He also asserts loss of

consortium.

        OCA and OAI answered the Complaint and joined Custom as an

additional defendant.4 Custom is a Pennsylvania company headquartered in

Ivyland, Pennsylvania. Using OMSC’s reprocessing protocol, Custom designed,

manufactured, and tested an automated endoscope reprocessor (AER) to

clean and disinfect the scope. Custom does not sell or service the AER, relying

instead on third-party contractors.

        OMSC filed preliminary objections in December 2016, asserting, inter

alia, a lack of personal jurisdiction. It included as an exhibit the affidavit of

Laura Storms, OCA’s Vice President of Regulatory and Clinical Affairs and

Quality Assurance. Exhibit I to OMSC’s Preliminary Objections, Affidavit of

____________________________________________


4   See Joinder Complaint, 01/10/2017; see also Pa.R.C.P. 2255.

                                           -5-
J-A21033-18



Laura Storms, ¶ 2. She is responsible at OCA for compliance with FDA

regulations, including premarket applications and post market complaints. Id.

Her office is in Center Valley.5 Her affidavit confirmed that the subject scope

was manufactured by OMSC and it constitutes a medical device subject to FDA

regulations. Id., ¶ 4. She also admitted that because OMSC is a foreign

manufacturer, “it designates OCA as its U.S. agent for all its products sold in

the United States.” Id. That agency relationship extends to OMSC’s statutory

reporting requirements with the FDA, including “premarket notifications

related to approval of the device,” i.e., section 510(k) premarket notifications.

Id., ¶ 6.

       The trial court sustained the preliminary objection regarding personal

jurisdiction   in   February     2016    and     granted   dismissal   as   to   OMSC.

Subsequently, OCA, OAI, and Custom filed a joint motion to dismiss based on

forum non conveniens. Following additional discovery and supplemental

briefing, the trial court dismissed Vaughan’s claims without prejudice to re-

institute litigation in North Carolina. Vaughan timely appealed and filed a

court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a

responsive opinion.

       Vaughan raises the following issues:

       1. Did the court err in ruling that Pennsylvania does not have
          personal jurisdiction over OMSC when that entity regularly sent
____________________________________________


5 Cf. OCA’s Answer to Complaint With New Matter, ¶ 15 (“OCA admits Ms.
Storms is its Vice President of Quality Assurance, and that her office is in
Center Valley, Pennsylvania.”).

                                           -6-
J-A21033-18


           employee liaisons to live in Pennsylvania and to work with its
           sister corporations, which are located in Pennsylvania, and
           when all regulatory, sales, marketing, and quality assurance
           functions necessary to make its medical device available in the
           U.S. were carried out in, or controlled from, Pennsylvania[?]

      2. Did the court abuse its discretion in granting OAI, OCA and
         Custom’s motion to dismiss for forum non conveniens when all
         those entities are headquartered in Pennsylvania, all or nearly
         all of their facilities are located in Pennsylvania, all or nearly all
         of their employees are located in Pennsylvania, and all or
         nearly all of their conduct giving rise to this action took place
         in Pennsylvania?

Vaughan’s Br. at 4.

II.   Discussion

      A.      Specific Jurisdiction Is Proper in Pennsylvania.

      In his first issue, Vaughan contends the trial court erred in ruling that

Pennsylvania may not exercise personal jurisdiction over OMSC. Id. at 10. He

argues that specific jurisdiction is proper in Pennsylvania because “[t]he acts

of the corporations which were affiliated with OMSC, and which were acting

as its agent in Pennsylvania, engaged in significant conduct that was directly

related to the [plaintiff’s] claims here.” Vaughan’s Br. at 29. We agree.

      We reverse an order sustaining preliminary objections if there has been

an error of law or an abuse of discretion. N.T. ex rel. K.R.T. v. F.F., 118 A.3d

1130, 1134 (Pa.Super. 2015). Preliminary objections that will result in the

dismissal of an action should be sustained only in cases that are “clear and

free from doubt.” N.T., 118 A.3d at 1134 (quoting Gaboury v. Gaboury, 988

A.2d 672, 675 (Pa.Super.2009)) (internal quotation marks and citations

omitted in N.T.).

                                        -7-
J-A21033-18



      When considering a preliminary objection to personal jurisdiction, the

moving party bears the burden of initially supporting its objection. If the

movant carries that burden, the burden then shifts to the party claiming

personal jurisdiction is proper to prove that such is the case. N.T., 118 A.3d

at 1134; Mendel v. Williams, 53 A.3d 810, 816 (Pa.Super. 2012).

      There are two theories of personal jurisdiction: general, or all-purpose

jurisdiction, and specific, or case-linked jurisdiction. Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); Mendel, 53 A.3d at

817. Here, Vaughan claims personal jurisdiction over OMSC exists under both

theories. Because we conclude that OMSC is properly subject in this case to

Pennsylvania’s specific jurisdiction, we only address the parties’ arguments

regarding specific jurisdiction.

      Whether a state may exercise in personam jurisdiction over a non-

resident defendant is tested against both the state’s long-arm statute and the

Due Process Clause of the Fourteenth Amendment. Kubik v. Letteri, 614

A.2d 1110, 1112 (Pa. 1992). Pennsylvania’s long-arm statute permits courts

to exercise personal jurisdiction over a nonresident defendant “to the fullest

extent allowed under the Constitution of the United States and may be based

on the most minimum contact with this Commonwealth allowed under the

Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). Vaughan has

asserted jurisdiction under section 5322(b), and the analysis thus condenses

to whether jurisdiction is proper under the Fourteenth Amendment. See

Gaboury, 988 A.2d at 679 n.5.

                                    -8-
J-A21033-18


      The extent to which jurisdiction is proscribed by the Due Process
      Clause is dependent upon the nature and quality of the
      defendant’s contacts with the forum state. Where a defendant has
      established no meaningful contacts, ties or relations with the
      forum, the Due Process Clause prohibits the exercise of personal
      jurisdiction. However, where a defendant has purposefully
      directed his activities at the residents of the forum, he is presumed
      to have fair warning that he may be called to suit there.

Mendel, 53 A.3d at 817 (internal quotation marks and citations omitted).

      “Due process is satisfied when the defendant has (1) purposefully

established minimum contacts with the forum state, (2) such that the

maintenance of the suit does not offend traditional notions of fair play and

substantial justice.” Schiavone v. Aveta, 41 A.3d 861, 869 (Pa.Super. 2012)

(internal quotation marks omitted; citing Burger King Corp. V. Rudzewicz,

471 U.S. 462, 474 (1985)). “This ‘purposeful availment’ requirement ensures

that a defendant will not be hauled into a jurisdiction solely as a result of

random, fortuitous, or attenuated contacts, or of the unilateral activity of

another party or a third person.” Burger King, 471 U.S. at 475 (internal

quotation marks and citations omitted).

      The propriety of the exercise of specific jurisdiction “depends on an

affiliation between the forum and the underlying controversy, principally, [an]

activity or an occurrence that takes place in the forum State and is therefore

subject to the State’s regulation.” Goodyear, 564 U.S. at 919. See also

Hammons v. Ethicon, Inc., 190 A.3d 1248, 1263 (Pa.Super. 2018)

(concluding   jurisdiction   established   over   non-resident   medical   device

manufacturer based on documented collaboration with resident companies


                                      -9-
J-A21033-18



and individuals to design, test, and manufacture pelvic mesh in Pennsylvania).

In contrast to general jurisdiction, specific jurisdiction is narrowly “confined to

adjudication of issues deriving from, or connected with, the very controversy

that establishes jurisdiction.” Goodyear, 564 U.S. at 919. (quotation marks

and citation omitted). “When there is no such connection, specific jurisdiction

is lacking regardless of the extent of a defendant’s unconnected activities in

the State.” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773,

1781 (2017).

      The Supreme Court’s decision in Bristol Myers Squibb gives useful

guidance here. In that case, a group of plaintiffs, including many who did not

reside in California, sued Bristol-Myers in California state court alleging

injuries from a drug. Id. at 1780. The California Supreme Court concluded

that jurisdiction existed in that state under a “sliding scale” theory of specific

jurisdiction. Under that theory, “‘the more wide ranging the defendant’s forum

contacts, the more readily is shown a connection between the forum contacts

and the claim.’” Id. at 1778 (quoting Bristol-Myers Squibb Co. v. Superior

Court, 806, 377 P.3d 874, 889 (Cal. 2016)).

      The United States Supreme Court rejected that theory as contrary to

“settled principles.” Id. at 1781. Relevant here, the Court concluded that

California lacked specific jurisdiction because there was no adequate

connection between California and the non-residents’ claims. Id. at 1781. The

Court pointed out that the nonresidents were not prescribed and did not

purchase or ingest the drug in California, and did not sustain injury from the

                                      - 10 -
J-A21033-18



drug in California. Id. The Court also rejected the nonresidents’ contention

that “the bare fact” that Bristol–Myers had contracted with a California

company, along with many other companies nationally, to distribute the drug

was sufficient to establish personal jurisdiction in California over Bristol Myers.

The Court pointed out there was no evidence that the nonresidents had taken

pills distributed through the California company. Id. at 1783. Further, the

Court pointed out that Bristol-Myers did not develop a marketing strategy for

the drug in California nor did it “work on the regulatory approval of the product

in California.” Id. at 1778.

      Moreover, the Court in Bristol Myers Squibb identified additional

circumstances, not present in that case, that it suggested would provide

specific jurisdiction. The Court emphasized, “it is not alleged that [Bristol-

Myers] engaged in relevant acts together with [the California company].” Id.

The Court added, “Nor is it alleged that [Bristol-Myers] is derivatively liable

for [the California company’s] conduct in California.” Id.

      This case involves the additional circumstances to which the Court

adverted in Bristol-Myers Squibb. Here, OMSC engaged in relevant acts

together with OCA, an in-state company, and it is liable for OCA’s FDA-related

conduct in Pennsylvania. OCA’s Vice President, Laura Storms, admitted in her

affidavit that OCA is OMSC’s agent for purposes of OMSC’s statutory reporting

requirements with the FDA. See Affidavit of Laura Storms, ¶ 4. She also

conceded that the agency relationship extends to OMSC’s section 510(k)

premarket notifications. Id., ¶ 6. Section 510(k) premarket notifications entail

                                      - 11 -
J-A21033-18



submission of proposed directions for use. Buckman, 531 U.S. at 345. OMSC

itself fashions the reprocessing protocol, through “instructions,”6 and all of

Vaughan’s claims relate to adequacy of that protocol. OCA’s activities in

concert with OMSC, and as OMSC’s agent, are sufficiently linked to Vaughan’s

substantive claims to support specific jurisdiction over OMSC in Pennsylvania.

Bristol-Myers Squibb, 137 S.Ct. at 1783.

       Daimler AG v. Bauman, 571 U.S. 117 (2014), is distinguishable.

There, residents of Argentina sued Daimler – a company organized under

German law that manufactures vehicles primarily in Germany and has its

headquarters in Germany – in federal court in California. The plaintiffs alleged

that Daimler’s Argentinian subsidiary had been involved in atrocities in

Argentina during that country’s “Dirty War.” Id. at 121. The plaintiffs

maintained that the California federal court could exert general personal

jurisdiction over Daimler based on the California contacts of Daimler’s U.S.

subsidiary, Mercedes-Benz USA LLC (MBUSA). Id.

       The Ninth Circuit found jurisdiction proper, applying its so-called

“agency” test for personal jurisdiction. The court explained that under that

test, an in-state subsidiary acts as an agent for an out-of-state parent if the

subsidiary performs services sufficiently important to the parent that, if the

subsidiary ceased to exist, the foreign parent “would undertake to perform the

services itself if it had no representative at all to perform them.” Bauman v.
____________________________________________


6See OMSC’s Br. at 56 (“But OMSC as the manufacturer is responsible for
designing the product and creating or revising its reprocessing instructions.”).

                                          - 12 -
J-A21033-18



DaimlerChrysler Corp., 644 F.3d 909, 921 (9th Cir. 2011). The Ninth Circuit

thus attributed MBUSA’s California contacts to Daimler and found it subject to

general jurisdiction. 571 U.S. at 134.

      The Supreme Court reversed. The Court declined to address whether an

“agency theory” is applicable to a general jurisdiction analysis because the

Ninth Circuit’s reasoning could not be sustained in any event. Id. at 135. The

Court explained that the Ninth Circuit’s “agency” test swept too broadly, since

anything a corporation has another entity do is “presumably something” it

would do by other means if the other entity did not perform the service. Id.

at 136. The Court ultimately concluded that, even assuming MBUSA’s contacts

were imputable to Daimler, and that MBUSA was “at home” in California, it

would still reverse the finding of general jurisdiction because the limited

contacts with California were evaluated under an improper standard. Id. at

136, 139.

      Daimler does not impede our decision here for several reasons. To

begin, it is a general jurisdiction case and here we consider specific

jurisdiction. Perhaps more to the point, the Court did not purport to declare

agency permanently out of bounds in the personal jurisdiction analysis. To the

contrary, it refused to “pass judgment on invocation of an agency theory in

the context of general jurisdiction,” and then carefully cabined its discussion

to the flaws it found in the Ninth Circuit’s “agency” test. Id. at 135. Indeed,

the Court in Daimler went so far as to state that agency relationships may be

relevant to the existence of specific jurisdiction. Id. at 135 n.13. What is more,

                                     - 13 -
J-A21033-18



three years after Daimler, the Court suggested in Bristol-Myers Squibb that

allegations that a defendant is “derivatively liable” for another’s in-forum acts

could support a finding of specific jurisdiction.

      Here, we have such allegations, and they are supported by evidence,

including Storms’ concessions that OCA acted as OMSC’s agent for FDA

purposes. Therefore, we conclude that the activity regarding the scope that

occurred in Pennsylvania was sufficient to establish the minimum contacts

needed, under a due process analysis, to establish specific jurisdiction in

Pennsylvania. See Schiavone, 41 A.3d at 869. As discussed, OCA’s actions

as OMSC’s regulatory agent with the FDA were sufficiently related to

Vaughan’s substantive claims to support the assertion of specific jurisdiction

over OMSC in Pennsylvania. See Bristol-Myers Squibb, 137 S.Ct. at 1783.

      Likewise, Pennsylvania’s assertion of specific jurisdiction over OMSC is

fair and reasonable and does “not offend tradition[al] notions of fair play and

substantial justice” as required under the second prong of a due process

analysis. Id. Having availed itself of doing business in this Commonwealth,

specifically regarding the scope, the attendant burden of being subject to

specific jurisdiction in Pennsylvania regarding the same could hardly be

deemed unfair, unreasonable, or even unexpected. Accordingly, having

concluded   that   OMSC    is   subject   to   specific   personal   jurisdiction   in

Pennsylvania, we reverse the trial court’s February 2017 Order.




                                      - 14 -
J-A21033-18


      B.    The Trial Court Abused Its Discretion in Granting a
            Forum Non Conveniens Dismissal.

      In his second issue, Vaughan contends that Philadelphia, Pennsylvania

is the most appropriate forum for this case. Vaughan’s Br. at 30. Vaughan

notes that, under Pennsylvania law, a plaintiff is entitled to choose the forum

in which to pursue his claims and that this choice should not be disturbed

except for “weighty reasons.” Id. at 35 (citing Wright v. Aventis Pasteur,

Inc., 905 A.2d 544 (Pa.Super. 2006)). Asserting “critical factual omissions

and errors” by the trial court and directing our attention to what Vaughan

suggests is extensive and relevant corporate actions in the greater

Philadelphia area, Vaughan urges that we reverse the trial court’s decision to

grant the joint motion to dismiss for forum non conveniens. Id. at 30; at 38-

50 (citing evidence of corporate conduct); 60 (urging reversal). Once again,

we agree.

      Motions to transfer venue out of state pursuant to the doctrine of forum

non conveniens are governed by 42 Pa.C.S.A. § 5322, which provides in

relevant part:

      Inconvenient forum.--When a tribunal finds that in the interest
      of substantial justice the matter should be heard in another forum,
      the tribunal may stay or dismiss the matter in whole or in part on
      any conditions that may be just.

42 Pa.C.S.A. § 5322(e); Pisieczko v. Children's Hosp. of Phila., 73 A.3d

1260, 1262 n.3 (Pa.Super.2013). We review “a trial court's ruling on a Petition

to Dismiss on the grounds of forum non conveniens ” pursuant to § 5322(e)

for an abuse of discretion. Id. at 1262.

                                    - 15 -
J-A21033-18



       Before a court may grant dismissal under subsection 5322(e),

Pennsylvania jurisprudence requires the consideration of two factors: “(1) a

plaintiff’s choice of the place of the suit will not be disturbed except for weighty

reasons, and (2) no action will be dismissed unless an alternative forum is

available to the plaintiff.” Wright, 905 A.2d at 547-48 (quoting Jessop v.

ACF Indus, LLC, 859 A.2d 801, 803 (Pa.Super. 2004) (emphasis omitted).7

       In order to evaluate whether “weighty reasons” exist to disturb a

plaintiff’s choice of forum, the trial court must examine private and public

interest factors relevant to the case. The private factors include:

       [T]he 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. There may also be questions as to the enforceability
       of a judgment if one is obtained. The court will weigh relative
       advantages and obstacles to fair trial.

                                           ...

       With respect to public factors, the Supreme Court advised:

       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.... There is an
____________________________________________


7 Vaughan does not challenge the trial court’s finding that an alternative forum
is available to him. Thus, we need not address this consideration in detail. The
trial court viewed the availability of an alternative forum as a threshold
question. See Trial Ct. Op. at 9. Noting that all defendants consented to
jurisdiction in North Carolina, the court concluded that an alternative forum
was available. Id. (citing, et al., Pisieczko v. Children’s Hosp. of
Philadelphia, 73 A.3d 1260 (Pa.Super. 2013)). We discern no abuse of the
court’s discretion in this regard. Bochetto, 151 A.3d at 1079.

                                          - 16 -
J-A21033-18


      appropriateness, too, in having the trial ... 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.

Bochetto, 151 A.3d at 1079-80 (internal formatting modified; quoting Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).

      Considering these private and public interest factors, the trial court here

concluded that North Carolina provided the more appropriate forum and that

sufficiently weighty reasons militated against Vaughan’s choice to pursue this

case in Philadelphia. Trial Ct. Op. at 10-12. We disagree and conclude that the

trial court abused its discretion by finding that “weighty” reasons required that

Vaughan’s choice of forum be disturbed.

      The trial court determined that the majority of relevant evidence in this

case is located in North Carolina or Japan and not, as Vaughan asserts, in

Pennsylvania. Id. at 10-11. However, we agree with Vaughan that a plaintiff

may establish a close connection with a forum based upon “relevant corporate

actions” that take place there. See Vaughan’s Br. at 54 (citing Wright, 905

A.2d at 549). There is little doubt that OCA and OAI conduct extensive

operations in Pennsylvania, in relative proximity to Philadelphia. See, e.g.,

id. at 38-39 (listing numerous corporate departments), 42-50 (directing our

attention to evidence of OCA and OAI conduct in several areas including

regulatory compliance, marketing and distribution and issue response).

Further, Vaughan has identified 64 OCA and OAI employees, as well as

numerous Custom employees, all located in the greater Philadelphia area.



                                     - 17 -
J-A21033-18



Vaughan’s Supplemental Briefing in Opposition to Joint Motion to Dismiss,

Exhibits II & OO.8 Indeed, evidence critical to support Vaughan’s claims will

be found in Pennsylvania, where, as discussed, OCA acts as OMSC’s agent for

FDA purposes.

       Moreover, the trial court’s concern that Vaughan’s fact witnesses for

damages are located in North Carolina is not persuasive. See Trial Ct. Op. at

10. In our view, any difficulty a plaintiff faces in securing evidence necessary

to prove a cause of action is not a valid reason to override the plaintiff’s forum

preference. Thus, we find meritorious Vaughan’s criticism of the court’s

suggestion that “much of the information that [Vaughan] alleges is based in

Pennsylvania actually comes from non-parties.” Vaughan’s Br. at 31 (quoting

Trial Ct. Op. at 10). To the contrary, significant evidence may be found in

Pennsylvania from parties to this litigation.

       Regarding the public interest factors, the court suggested Pennsylvania

had comparatively little interest in this case, despite the presence of

Pennsylvania defendants, because the injury occurred in North Carolina. Trial

Ct. Op. at 11-12. Thus, the court determined, a trial in Philadelphia would

unduly burden our courts and jurors. Id.




____________________________________________


8 We note Vaughan’s reference to Custom employees mindful that he asserts
no claims against Custom. Nevertheless, testimony from these employees
may well prove relevant in this case. In several closely related cases, the
plaintiffs have targeted Custom’s actions directly. In those cases, such
evidence will be essential.

                                          - 18 -
J-A21033-18



      We disagree. As Vaughan noted, he provided “evidence of public interest

factors similar to those described by [this Court] in Wright[.]” Id. In Wright,

after noting that the defendant pharmaceutical companies marketed vaccines

and immune globulin products in Pennsylvania, this Court concluded that the

people of Pennsylvania had an interest in the outcome “particularly since

[plaintiffs] aver that several of these companies make critical . . . marketing

decisions in the Commonwealth.” Wright, 905 A.2d at 551 (emphasis

added). Such is the case here. The Pennsylvania-based Olympus companies

maintain robust sales and marketing departments in Pennsylvania.

      Further, as Vaughan suggests, there is little cause for concern if a

Philadelphia judge is called upon to apply the law of another state. Id. at 55

(citing Wright, 905 A.2d at 551). In Wright, we expressed confidence in the

ability of our trial judges to accurately apply foreign law:

      [W]hile it is unresolved whether the law of Pennsylvania or the
      law of Texas will ultimately apply to this case, a factor not even
      considered by the trial judge, there is no basis upon which to
      conclude that the law determined to be applicable is beyond the
      ken of a Philadelphia trial judge.

Wright, 905 A.2d at 551. We have no doubt that a jurist in this

Commonwealth is more than capable of analyzing and applying the

appropriate law – domestic or foreign.

      In sum, faced with private and public factors that clearly support

Vaughan’s choice to proceed in Philadelphia, we conclude there were not

weighty reasons to disturb Vaughan’s choice of forum. Accordingly, we



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conclude the trial court abused its discretion and we reverse the trial court’s

order granting dismissal on the basis of forum non conveniens.

      Orders reversed; case remanded; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/19




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