           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 30, 2009

                                     No. 09-30260                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LILLIAN J. ADAMS; BRIDGET G ADDISON; JOHN AITKEN;
ALEXANDRINA ANDERSON, Individually and as Administrator of the
Estate of, and pursuant to wrongful death beneficiaries of Anderson, William,
Deceased; AGNES WF ARCHIBALD; MARGARET BLANE; RONA ADAM,
Individually & As Executrix of the Estate of THOMAS L. B. ADAM;
MARGARET ANDERSON; JOHN CAMPBELL; MARION A COLLINS;
WILLIAM HAMILTON; HENRY REID; JOHN WILLIAMSON; ET AL

                                                   Plaintiffs - Appellants
v.

MERCK & COMPANY INC.

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                               USDC 2:07-MD-1657


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       This case arises out of the litigation against Appellee Merck & Co., Inc.
(“Merck”) over the pain reliever Vioxx. The district court dismissed Appellants’


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 09-30260

claims under the doctrine of forum non conveniens. Because the district court did
not abuse its discretion in doing so, we now AFFIRM.
                               I. BACKGROUND
      Vioxx is a non-steroidal anti-inflammatory (“NSAID”) that was sold by
prescription to treat acute or chronic inflammation, such as that associated with
arthritis. Merck withdrew Vioxx voluntarily from the market in 2004 after
studies showed that it increased the risk of cardiovascular thrombotic events like
myocardial infarctions and ischemic strokes. In re Vioxx Prods. Liab. Litig., 2009
WL 1636244, at *1 (E.D. La. Feb. 10, 2009). Thousands of lawsuits were
subsequently filed, and the litigation was designated as a Multi-District
Litigation (“MDL”) and assigned to the district court below. Eleven of the
consolidated suits were filed on behalf of purported classes of foreign citizens. In
2006 the district court dismissed the suits filed by French and Italian plaintiffs
under the doctrine of forum non conveniens. In re Vioxx Prods. Liab. Litig., 448
F.Supp. 2d 741, 649 (E.D. La. 2006). On May 16, 2008, Merck filed a motion
seeking to dismiss the claims brought by the remaining foreign individuals, a
total of 385 cases; it later agreed to withdraw the motion as to all plaintiffs
except those who were not U.S. citizens and who received their prescriptions,
ingested Vioxx, and received medical care for their alleged Vioxx-related injuries
primarily outside of the United States. The district court dismissed the cases
brought by these plaintiffs under the doctrine of forum non conveniens. In re
Vioxx, 2009 WL 1636244, at *4. Plaintiffs living in England, Scotland, Wales and
Northern Ireland and Eire timely appealed; it is this appeal that is before us.
                         II. STANDARD OF REVIEW
      We review rulings based on the doctrine of forum non conveniens for abuse
of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247-49 (1981). We will
find that a district court has abused its discretion when its ruling is based either
on an incorrect view of the law or on a clearly erroneous assessment of the

                                         2
                                       No. 09-30260

evidence. Hinojosa v. Butler, 547 F.3d 285, 292 (5th Cir. 2008). Where, however,
“[the district] court has considered all relevant public and private interest
factors, and where its balancing of these factors is reasonable, its decision
deserves substantial deference.” Piper Aircraft Co., 454 U.S. at 266.
                                   III. DISCUSSION
       A defendant seeking to have a case dismissed under the doctrine of forum
non conveniens must demonstrate “(1) the existence of an available and adequate
alternative forum and (2) that the balance of relevant private and public interest
factors favor[s] dismissal.” Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665,
671 (5th Cir. 2003). Availability and adequacy are two separate inquiries. “A
foreign forum is available when the entire case and all parties can come within
the jurisdiction of that forum.” Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d
208, 221 (5th Cir. 2000) (internal quotation marks and citation omitted).
Meanwhile, “[a] foreign forum is adequate when the parties will not be deprived
of all remedies or treated unfairly, even though they may not enjoy the same
benefits as they might receive in an American court.” Id. at 221. The Supreme
Court has specified that “[t]he possibility of a change in substantive law should
ordinarily not be given conclusive or even substantial weight in the forum non
conveniens inquiry.” Piper Aircraft Co., 454 U.S. at 247.1 Appellants argue that
the district court abused its discretion because, in essence, the fora available to
them in the United Kingdom are not adequate.2


       1
         Contrary to Appellants’ arguments, the district court did not improperly shift the
burden of proof to Appellants below: in fact the adequacy of a foreign forum’s substantive laws
is presumed, absent any showing to the contrary. Vaz Borralho v. Keydril Co., 696 F.2d 379,
392-93 (5th Cir. 1983), overruled on other grounds by In re Air Crash Disaster, 821 F.2d 1147,
1161 n.25 (5th Cir. 1987).
       2
        Appellants appear to confuse adequacy and availability at times. “A foreign forum is
available when the entire case and all parties can come within the jurisdiction of that forum.”
Alpine View, 205 F.3d at 221 (internal citation and quotation marks omitted). Merck has
agreed to submit to the jurisdiction of the UK courts, see In re Vioxx, 2009 WL 1636244, at *5,

                                              3
                                       No. 09-30260

Appellants argue first that the district court erred in not considering the
differences between English, Scottish, Welsh and Irish law in conducting its
adequacy analysis. If this was error, however, Appellants invited it themselves.
In the single paragraph devoted to this argument in their briefing before the
district court, Appellants stated:
       In this case, a forum non conveniens dismissal deprives some of the
       Plaintiffs of all of their claims. Specifically, the spouses of the
       Plaintiffs who have been injured by Vioxx have no right to recover
       under U.K. law for loss or consortium [sic] or any other kind of
       damage they have suffered unless and until their spouse has died.
       Affidavits of Frank H. Lefevre (Exhibit A, ¶ 8, p. 5) and of adverse
       affiant Nicholas Underhill, Q.C. (Exhibit G, ¶ 56, p. 23). This means
       the spouse of any of the Plaintiffs who has been injured by Vioxx but
       who has survived has no claim at all in the U.K., and the complete
       lack of a claim under foreign law means the alternate forum cannot
       be adequate.3

Thus, in their briefing, Appellant referred to the law at issue as “U.K. law” and
averred that “Plaintiffs who have been injured by Vioxx have no right to recover
under U.K. law . . . unless and until their spouse has died.” As the district court
noted, this is simply not the case in all of the U.K., since English law allows
recovery for costs incurred in caring for an injured plaintiff. In re Vioxx, 2009 WL
1636244, at *7. Appellants did not draw the district court’s attention to the
differences between Scottish and English law on this point, other than to cite
generally to an affidavit about Scottish law as support for a claim about all of
U.K. law, nor did they mention any differences that might exist (but were not



and therefore the alternative fora are indisputably available. Appellants’ complaints about the
alleged unavailability of certain forms of remedy in those fora are arguments about adequacy,
not availability.
       3
         The affidavit by Lefevre indicated that “other than on death of an individual the
surviving spouse or partner has no right of claim in Scotland against a defendant.” The
affidavit by Underhill indicated that English law does not recognize a claim for loss of
consortium, although it does recognize some claims that overlap with it.

                                              4
                                         No. 09-30260

briefed below or on appeal) between English law and Irish or Welsh law. Because
Appellants invited the conflation of different bodies of law within the U.K. they
may not now complain about the district court’s adoption of the same conflation.
See United States v. Baytank, Inc., 934 F.2d 599, 606 (5th Cir. 1991) (“A party
generally may not invite error and then complain thereof.”). Further, to the
extent that Appellants failed to provide any briefing or argument as to the
adequacy of Welsh and Irish law, the district court was entitled to presume the
adequacy of the fora. Vaz Borralho v. Keydril Co., 696 F.2d 379, 392-93 (5th Cir.
1983), overruled on other grounds by In re Air Crash Disaster, 821 F.2d 1147,
1161 n.25 (5th Cir. 1987). Given Appellants’ framing of the alternative forum as
“the U.K.,” the district court did not abuse its discretion in holding that the U.K.
was an adequate forum. While loss of consortium may not be a viable claim in
some parts of the U.K., English law, at least, allows for damages for losses
incurred caring for an injured spouse, which means that those Appellants who
are spouses of allegedly injured parties would not be left without any remedy in
the forum identified below. Further, loss of consortium is a derivative cause of
action that does not, standing alone, generally support maintaining jurisdiction
in an inconvenient forum. See, e.g., In re Vioxx, 928 A.2d 935, 941 (N.J. App. Div.
2007) (rejecting argument by group of Vioxx plaintiffs that U.K. was
inconvenient forum because it did not recognize loss of consortium as a claim).
In sum, the district court did not abuse its discretion in finding the foreign forum
adequate. See Alpine View Co., 205 F.3d at 221.4
       Appellants’ other contention on appeal is that the district court abused its
discretion in refusing to grant certain conditions to the forum non conveniens


       4
          If the defendant has proved that there is an available and adequate alternative forum
it still must show that the balance of public and private interest factors weigh in favor of
dismissal. Karim v. Finch Shipping Co., 265 F.3d 258, 268-69 (5th Cir. 2001) (listing private
interest factors); see also Gulf Oil v. Gilbert, 330 U.S. 501, 508-08 (1947) (discussing public
interest factors). Appellants do not challenge the district court's weighing of these factors here.

                                                5
                                  No. 09-30260

dismissal. In dismissing the case, the district court’s order required Merck to (1)
submit to service of process and jurisdiction in each of the appropriate forums,
(2) agree to satisfy any final judgment rendered by a foreign forum relating to
such claims, (3) agree not to include the time period that a suit was pending
against it in a U.S. court in raising any statute of limitations defense, and (4)
agree not to prevent Appellants from returning to the district court if the foreign
fora declined to accept jurisdiction, provided that such action was filed in those
foreign forums within 120 days of the district court’s order. In re Vioxx, 2009 WL
1636244, at *12. Appellants argue that the district court abused its discretion
by refusing to grant further conditions. Appellants asked for the following
conditions below: “(1) that the parties shall have a trial by jury; (2) that the
parties may obtain evidence pursuant to the Federal Rules of Civil Procedure;
(3) that the parties shall be permitted to present testimony at trial in the form
of oral, video, and written depositions, including depositions taken in prior cases;
and (4) that Merck will identify, produce and authenticate all documents it has
previously produced, authenticated, listed, or offered as exhibits in previous
Vioxx cases or trials in the United States.” Id. Assuming that Appellants are
appealing the denial of all these conditions, despite the lack of clarity in their
briefing on this question, the district court did not abuse its discretion in
denying the conditions. The district court correctly noted that these were
“institutional” conditions that go to the heart of policy differences between the
United States and the foreign fora when it comes to the appropriate mechanisms
for resolving civil disputes. Id. The requested conditions seek to replicate an
American trial in a foreign forum. It was not an abuse of discretion on the part
of the district court to consider the foreign fora adequate despite the absence of
these factors, and it was similarly not an abuse of discretion to decline to attach
conditions replicating these factors to the dismissal under forum non conveniens.
See Robinson v. TCI/US West Commc’ns., 117 F.3d 900, 902-03 (5th Cir. 1997)

                                         6
                                No. 09-30260

(noting that given the “enormous scope” of discovery allowed under American
law the appellant was no doubt correct that less discovery would be available
under English law but that such differences did not make the forum inadequate).
                             IV. CONCLUSION
      For the foregoing reasons the district court’s judgment is AFFIRMED.




                                      7
