J-A22043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    VICKIE L. JEANS                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    B. BRAUN MEDICAL INC., A                   :   No. 3071 EDA 2018
    PENNSYLVANIA CORPORATION, B.               :
    BRAUN INTERVENTIONAL SYSTEMS               :
    INC., A DELAWARE CORPORATION,              :
    AND B. BRAUN MEDICAL S.A.S., A             :
    FRENCH CORPORATION                         :

                Appeal from the Order Entered August 20, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                           No(s): No. 160802546


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

MEMORANDUM BY PELLEGRINI, J.:                         FILED OCTOBER 17, 2019

        The Appellant, Vickie L. Jeans (Jeans), appeals the order of the

Philadelphia Court of Common Pleas dismissing her products liability suit on

the ground of forum non conveniens. Jeans argues that the trial court abused

its discretion because the Appellees, 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




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A22043-19


Defendants), failed to show that Pennsylvania is an inconvenient forum for

her claims. We reverse and remand.

        Jeans’ products liability action arises from the implantation of a

“VenaTech LP Vena Cava Filter” (VenaTech Filter).1           At the time of the

implantation in 2009, Jeans resided in Mississippi and she had the procedure

performed in Tennessee.           In 2015, while residing in Mississippi, Jeans

underwent another medical procedure, at which time she allegedly discovered

that the VenaTech Filter had malfunctioned, causing recoverable damages.

        According to Jeans’ complaint, the device is designed to be implanted in

a person’s inferior vena cava, a central vein in the heart.            Complaint,

8/19/2016, at ¶¶ 17-18. The device’s purpose is to prevent blood clots from

traveling from the legs and pelvis to the heart and lungs. Id. at ¶ 18. 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.

        Jeans asserts that the device “failed” and caused perforations of the

caval wall, putting her at numerous health risks, “including the risk of death.”

Id. at ¶ 24. This will require “ongoing medical care and monitoring for the

rest of her life.” Id.

        Jeans filed her complaint in 2016 in Philadelphia County, alleging seven

causes of action: Negligence, Strict Products Liability/Failure to Warn, Strict


____________________________________________


1   The facts are gleaned from the trial court’s opinion and the certified record.


                                           -2-
J-A22043-19


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 Jeans’ complaint, arguing that the suit should be

refiled in her home state of Mississippi or in Tennessee 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 Mississippi or Tennessee and to waive a

statute of limitations defense in the event of dismissal.2

       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 Jeans’ chosen forum.                 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.


____________________________________________


2 The Braun Defendants filed preliminary objections to venue, but the trial
court ruled that venue was proper based on the Braun Defendants’ contacts
with Philadelphia County. This ruling is not now at issue.


                                           -3-
J-A22043-19


      B. Braun France designed and manufactured the VenaTech Filter, but

the 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 Jeans’ suit, along with every other unit of the VenaTech

Filter distributed in the United States since 2001.

      At the hearing on the subject motion, the Braun Defendants emphasized

that VenaTech Filter was designed and manufactured in France; that Jeans

had the VenaTech Filter implanted in Tennessee; and that she has never

resided in Pennsylvania.      They claimed that neither the parties nor

Pennsylvania has an interest in the litigation and that another forum is

available and more convenient for trial purposes.

      Notably, however, the Braun Defendants introduced an affidavit by the

president of BIS, Paul O’Connell (O’Connell), who stated that although he

resides in Illinois, there are other “potentially relevant witnesses from BIS –

for example, the employees who are responsible for distribution, sales, and

post-market surveillance of the VenaTech – reside and work in Lehigh

County.” O’Connell, Affidavit, ¶ 13 (emphasis added).


                                     -4-
J-A22043-19


        In the subject 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.3

        On August 20, 2018, the case was dismissed and Jeans timely appealed.

In its opinion, the trial court found that Pennsylvania has little interest in

resolving Jeans’ products liability claims. Trial Court Opinion, 12/20/2018, at

4-5.




____________________________________________


3  The Braun Defendants argued that Philadelphia County would be so
inconvenient for these BIS employees that the trial should be transferred to
Lehigh County. The logical conclusion of that claim is that if a trial in
Philadelphia County would be highly disruptive to the lives of those potential
witnesses, then a trial in Tennessee or Mississippi would be even more so.


                                           -5-
J-A22043-19


       The trial court outlined several other reasons for granting the dismissal.

It reasoned that if the case were re-filed in Jeans’ home state or Tennessee,

potential difficulties in applying out-of-state law would be avoided and the

presence of witnesses could more easily be ensured.           Id. at 5.   It was

presumed that causation and damages would be hotly contested issues at

trial, and that Jeans’ medical care providers in Mississippi and Tennessee

would be unwilling to attend a Pennsylvania trial. Id.4

       The trial court assigned little to no weight to the fact that employees of

BMI and BIS made marketing, sale and distribution decisions within

Pennsylvania.      The trial court ruled that the physical presence of any

documentation in Mississippi or Tennessee would make it inconvenient to hold

the trial in Pennsylvania.        Id.    The trial court did not reach the Braun

Defendants’ alternative motion to transfer the case to Lehigh County.

       Jeans timely appealed and both Jeans and the trial court complied with

Rule 1925.        In her brief, Jeans asserts the following issue for our

consideration:

       [D]id the Trial Court misapply the law or render a manifestly
       unreasonable decision by overruling [Jeans’s] right to choose her
       forum and . . . granting the Appellees’ motion to dismiss based on
       forum non conveniens when the public and private factors do not
       weigh strongly against her chosen forum?
____________________________________________


4Pennsylvania has adopted the Uniform Interstate Depositions and Discovery
Act (UIDDA), which makes non-party witnesses subject to compulsory
deposition and subpoena by a court in another state’s jurisdiction. See 42
Pa.C.S. §§ 5331-71. Mississippi and Tennessee have also adopted the UIDDA.
See Miss. Code Ann. § 11-59-1; Tenn. Code Ann. § 24-9-201.

                                           -6-
J-A22043-19


Appellant’s Brief, at 5.

       The Braun Defendants urge us to affirm the dismissal order, stressing

as they did below that any relevant conduct in Jeans’ action occurred outside

of Pennsylvania. They argue that Jeans is a Mississippi resident who had the

subject surgery in Tennessee, and that the VenaTech Filter was designed and

manufactured in France. They echo the trial court’s findings that a trial in

Pennsylvania would be impractical.5

       We recently considered arguments and evidence materially identical to

those here, in McConnell v. Braun Medical, Inc., –––A.3d–-–, 2019 PA

Super 310 (filed October 16, 2019). We concluded in McConnell that the

plaintiff’s case could be heard in Pennsylvania and that the trial court

improperly dismissed the case based on forum non conveniens. For nearly

identical reasons to those outlined in McConnell, the order of dismissal in the

present case must be reversed.           However, the Braun Defendants’ pending

motion to transfer the case to Lehigh County may be considered by the trial

court on remand.

       Order reversed; case remanded; jurisdiction relinquished.




____________________________________________


5The Braun Defendants also contend that the case should be heard elsewhere
because the Philadelphia County courts are too congested to handle it
promptly. This argument is largely based on facts which cannot be considered
on appeal for lack of a basis in the certified record. In addition, the record
contains no information about the caseloads of alternative forums, so it is
impossible to compare their respective capacities.

                                           -7-
J-A22043-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




                          -8-
