J-A22041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ROBERT ZEVOLA, AN INDIVIDUAL,              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                 v.                            :
                                               :
                                               :
    B. BRAUN MEDICAL INC., A                   :
    PENNSYLVANIA CORPORATION, B.               :   No. 3011 EDA 2018
    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): 2017-0504162


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

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

        The Appellant, Robert Zevola (Zevola), appeals the order of the

Philadelphia Court of Common Pleas dismissing his products liability suit on

the ground of forum non conveniens. Zevola 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




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*   Retired Senior Judge assigned to the Superior Court.
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Defendants), failed to show that Pennsylvania is an inconvenient forum for his

claims. We reverse and remand.

        Zevola’s products liability action arises from the implantation of a

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

implantation in 2005, Zevola resided in New York where the procedure was

performed. In 2015, while residing in New York, Zevola underwent a CT scan

which allegedly revealed that the VenaTech Filter had malfunctioned, causing

recoverable damages.

        According to Zevola’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 ¶¶ 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 ¶ 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.

        Zevola 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 his heart. Id. at ¶¶

23-25. This will require “ongoing medical care and monitoring for the rest of

his life.” Id. at ¶ 24.




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


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       Zevola filed his complaint in 2017 in Philadelphia County, alleging 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 Zevola’s complaint, arguing that the suit should

be refiled in his home state of New York 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 New York 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 the Zevola’s 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


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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.


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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 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 Zevola’s 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 Zevola

had the VenaTech Filter implanted in New York; and that he 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


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

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

        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 21, 2018, the case was dismissed. In its opinion, the trial

court found that Pennsylvania has little interest in resolving Zevola’s products

liability claims because “the record indicates – despite the corporate presence


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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 New York would be even more so.


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of [BMI and BIS] – the decisions and documentation for the lotus of [Zevola’s]

action arose outside of Pennsylvania.” Trial Court Opinion, 2/14/2019, at 10.

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

It reasoned that if the case were re-filed in Zevola’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 Zevola’s

medical care providers in New York would be unwilling to attend a

Pennsylvania trial. See id. at 10-11.4

       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. Id. at 11-12. The trial court ruled that the physical presence

of any documentation in Pennsylvania or elsewhere would be immaterial

because it can be electronically transmitted. Id. at 11. The trial court did not

reach the Braun Defendants’ alternative motion to transfer the case to Lehigh

County.




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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. New York has also adopted the UIDDA. See NY C.P.L.R.
Law § 3119 (New York).

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       Zevola timely appealed and both Zevola and the trial court complied

with Rule 1925.       In his brief, Zevola asserts the following issue for our

consideration:

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

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 Zevola’s action occurred outside

of Pennsylvania. They argue that Zevola is a New York resident who had the

subject surgery in New York, 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


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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.

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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.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




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