                                                        May 30 2014, 10:16 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

PETER J RUSTHOVEN                             ERIC C. LEWIS
TERRI L. BRUKSCH                              Lewis Legal Services, P.C.
MICHAEL R. CONNER                             Indianapolis, Indiana
Barnes & Thornburg LLP
Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

DEPUY ORTHOPAEDICS INC. and,                  )
JOHNSON & JOHNSON                             )
                                              )
      Appellants-Defendants,                  )
                                              )
              vs.                             )      No. 49A02-1304-CT-332
                                              )
TRAVIS BROWN, et al.                          )
                                              )
      Appellees-Plaintiffs.                   )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable John F. Hanley, Judge
                            Cause No. 49D11-1202-CT-8271


                                     May 30, 2014

                              OPINION – FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

      In this interlocutory appeal, DePuy Orthopaedics and Johnson & Johnson

(collectively “DePuy”) appeal the denial of its motion to dismiss on the grounds of forum

non conveniens, governed by Indiana Trial Rule 4.4(C).

      We reverse and remand.

                                         ISSUE

      Whether the trial court erred when it denied DePuy’s motion to dismiss.

                                        FACTS

      DePuy Orthopaedics, a subsidiary of DePuy Synthes and Johnson & Johnson,

provides prosthetic products for hip, knee, and shoulder replacement surgeries. DePuy

sells its prosthetic products to hospitals through independent sales contractors. DePuy’s

principal place of business is located in Warsaw, Indiana, which is located in Kosciusko

County. There, DePuy maintains offices, a manufacturing facility, and a warehouse.

      The product at issue in this case, the ASR™ XL Acetabular System (“ASR™ XL

System”), is a prosthetic hip implant sold in the United States between 2005 and 2010.

DePuy International Limited (“DePuy International”), located in Leeds, England,

designed and manufactured the ASR™ XL System. Thereafter, DePuy International

shipped the ASR™ XL System to DePuy facilities in Warsaw.

      Between October 2007 and April 2009, nineteen people residing in Virginia and

Mississippi (collectively “the Plaintiffs”) had the ASR™ XL System implanted during

hip replacement surgeries; eighteen of the surgeries were performed in Virginia while the

remaining surgery took place in Mississippi. On August 24, 2010, DePuy Orthopaedics

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issued a voluntary global recall of the ASR™ XL System.                        The Plaintiffs’ doctors

notified them of the recall and advised them of the potential need for additional surgery.

        On February 29, 2012, the Plaintiffs filed a complaint in Indianapolis, Indiana in

the Marion County Superior Court for personal injuries alleging negligence, breach of

express and implied warranties, and fraudulent concealment. DePuy filed a motion to

dismiss based on Trial Rule 4.4(C). Pursuant to Trial Rule 4.4(D), it also stipulated that

DePuy would submit to the personal jurisdiction of Virginia and Mississippi courts and

waive any statute of limitation defenses available in those states.

        On January 11, 2013, the trial court heard oral arguments on DePuy’s motion.

DePuy argued that trial in Marion County would not be convenient because the acts

alleged by the Plaintiffs in their complaint took place outside Indiana. Further, DePuy

claimed that witnesses and evidence essential to their defense were located beyond the

subpoena power of the Indiana trial court. Many of the Plaintiffs’ arguments in response

focused on the fact that Indiana has personal jurisdiction over DePuy and that filing suit

in Marion County was permissible.               As to Trial Rule 4.4(C) matters, the Plaintiffs

claimed that video depositions could cure any prejudice DePuy would suffer from not

having subpoena power over certain witnesses. Finally, the Plaintiffs desired an earlier

trial date than could be expected if they proceeded through pending federal multi-district

litigation proceedings regarding the ASR™ XL System.1


1
  At the federal level, Judge Katz of the United States District Court for the Northern District of Ohio has
presided over multi-district litigation (MDL) proceedings involving the ASR™ XL System for nearly
three years (Master Docket Number 1:10-md-2197). Cases within a federal court’s subject matter
jurisdiction may be filed directly in the federal MDL action. Upon completion of all pretrial proceedings,
those cases will be transferred to a proper venue for trial.
                                                     3
       On January 22, 2013, the trial court issued an order summarily denying DePuy’s

motion to dismiss. DePuy filed a motion to certify the trial court’s order for interlocutory

appeal. The trial court granted DePuy’s motion and certified its order. Thereafter, we

accepted jurisdiction.

                                        DECISION

       Conflict of laws is a body of law governing how disputes which involve the laws

of more than one country or state are resolved. Symeon C. Symeonides, Conflict of

Laws, in KERMIT L. HALL & DAVID S. CLARK, THE OXFORD COMPANION TO AMERICAN

LAW 138 (Oxford Univ. Press., 2002). A conflict exists because some or all of the

elements associated with a plaintiff’s claim are connected with more than one

jurisdiction. Id. In other words, the facts of a particular case may allow a plaintiff to file

suit in one or more states, even a foreign country.

       Generally, a plaintiff is free to select the appropriate court or forum to resolve his

or her claim. However, there are limitations. One of these limitations is the common

law, equitable doctrine known as forum non conveniens. This doctrine grants trial courts

the discretionary power to dismiss a case “whenever it appears that the cause before it

may be more appropriately tried elsewhere.” Paxton Blair, The Doctrine of Forum Non

Conveniens in Anglo-American Law, 29 COL. L. REV 1 (1929); See also Broderick v.

Rosner, 294 U.S. 629, 643 (1935). The early application of this doctrine seems to have

been aimed at limiting forum shopping, which is the plaintiff’s ability to select a court or

jurisdiction that he or she feels would render the most favorable verdict. Blair, supra at

24. (Blair argues that forum shopping frustrates the legislative process of apportioning

                                              4
the necessary number of judges and courts for a particular population, leads to congested

court calendars, and burdens local taxpayers with the expense of trying imported

controversies.). However, principles of fairness enshrined in various Federal and Indiana

constitutional provisions, including the dormant commerce clause and the doctrine of

comity, require that citizens, whether or not they are residents of a particular state, be

given access to the courts.2             1 William F. Harvey, INDIANA PRACTICE: RULES OF

PROCEDURE ANNOTATED § 4.4 at 308 (3d ed. 1999 & Supp. 2013).

        Given the natural tension between the doctrine of forum non conveniens and the

preference for open access to Indiana’s courts, courts have struggled to discern the

criteria for dismissing a case under the doctrine of forum non conveniens; it has been the

2
  Article IV, § 2 of our Federal Constitution (The Privileges and Immunities Clause) provides, “The
citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”

Article IV, § 1 of our Federal Constitution (The Full Faith and Credit Clause) mandates that “[f]ull faith
and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other
State.”

Section 1 of the Fourteenth Amendment of our Federal Constitution provides, “All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”

Article I, § 12 of our Indiana Constitution guarantees, “All courts shall be open; and every person, for
injury done to him in his person, property, or reputation, shall have remedy by due course of law….”

Comity is a principle wherein the courts of one state or jurisdiction give effect to the laws and judicial
decisions of another, not as a matter of obligation, but out of deference and respect. BLACK’S LAW
DICTIONARY 267 (6th ed. 1999).

The Dormant Commerce Clause is the principle that state and local laws are unconstitutional if they place
an undue burden on interstate commerce. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 401 (2002).

Each of the provisions mentioned above has, at one time or another, been interpreted as placing a
limitation upon a state’s ability to prevent nonresident plaintiffs from bringing claims into state courts
when that claim could be heard within the courts of another state.
                                                       5
subject of “considerable discussion and variance of view.” Id. at 311-12. However, it is

generally agreed that the doctrine should be applied sparingly and that its objective

should be to “promote the ends of convenience and justice.” Id.

          In its effort to find this balance, Indiana has adopted Trial Rule 4.4(C), which, at

the time, was taken from the Wisconsin Civil Code.3 Id. This Court has stated that the

purpose of the rule “is to permit a case to be litigated in another state upon a showing that

litigation in Indiana is so inconvenient that substantial injustice is likely to result.”

Employers Ins. Of Wausau v. RFC, 716 N.E.2d 1015, 1021 (Ind. Ct. App. 1999)

(emphasis added).4 “A mere inconvenience to a corporate defendant’s employees does

not create the type of injustice necessary to warrant a dismissal on forum non conveniens

grounds.” JPMorgan Chase Bank, N.A. v. Desert Place, Inc., 882 N.E.2d 743, 753 (Ind.

Ct. App. 2008) trans. denied. However, “[t]he convenience of non-party witnesses is

usually the most important factor to consider in deciding whether to depart from the

plaintiff’s choice of forum.” Id.

          In exercising its discretion to decide whether to dismiss a case on forum non

conveniens grounds, a trial court may appropriately consider such factors as:

           (1)    Amenability to personal jurisdiction in this state and in any
                  alternative forum of the parties to the action;

           (2)    Convenience to the parties and witnesses of the trial in this state and
                  in any alternative forum;

3
    WIS. STAT. § 262.19(3).
4
  Our Indiana Supreme Court noted in Anyango v. Rolls-Royce Corp., 971 N.E.2d 654, 656, n. 2 (Ind.
2012) that the substantial injustice language “would conflict with the explicit discretionary authority
granted to the trial court in Trial Rule 4.4(C) if a motion to dismiss could not be granted unless it was
clear that litigation in Indiana would be so inconvenient that ‘substantial injustice’ would likely to result.”
                                                      6
       (3)     Differences in the conflict of law rules applicable in this state and in
               the alternative forum; or

       (4)     Any other factors having substantial bearing upon the selection of a
               convenient, reasonable and fair place of trial.

T.R. 4.4(C).

      We review a trial court’s order regarding forum non conveniens motions for an

abuse of discretion. Anyango, 971 N.E.2d at 656. An abuse of discretion occurs when

“the trial court arrives at a conclusion that is clearly against logic and the natural

inference to be drawn therefrom.” Freemond v. Somma, 611 N.E.2d 684, 690 (Ind. Ct.

App. 1993), trans. denied.

      In deciding this case, we find the facts and reasoning outlined by the United States

Supreme Court case of Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981), whose

reasoning the Indiana Supreme Court adopted in Anyango, to be persuasive. There,

several Scottish subjects and residents died in an airplane crash in Scotland. Piper, 454

U.S. at 238-39. Preliminary reports concluded that a mechanical failure in the plane or

propeller caused the crash. Id. However, further review found no evidence of defective

equipment and indicated that pilot error was to blame. Id. An administrator for the

decedents’ estates filed a wrongful death suit in California against Piper Aircraft

Company, who manufactured the plane, and Hartzell Propeller, the manufacturer of the

propellers. Id. at 239-40. Decedents’ survivors filed a separate action in the United

Kingdom. Id. The plane was manufactured in Pennsylvania, and the propellers were

manufactured in Ohio. Id. at 238-39.


                                              7
       The administrator admitted that she filed the lawsuit in California because of its

laws regarding liability, capacity to sue, and because potential damages were more

favorable in California than in Scotland. Id. at 240. Defendants first moved to transfer

the case to federal court. After the case was moved to the United States District Court, a

subsequent motion to transfer to the Middle District of Pennsylvania was granted. Id.

Once there, both Piper and Hartzell moved for dismissal on the ground of forum non

conveniens. Id. at 241. The district court granted the motion, finding that Scotland was a

more convenient forum based on the Supreme Court’s balancing test stated in Gulf Oil

Corp. v. Gilbert, 330 U.S. 501 (1947). Piper, 454 U.S. at 241-44. The Third Circuit

Court of Appeals reversed, holding that dismissal is automatically barred where the law

of the alternative forum is less favorable to the plaintiff than the law of the forum chosen

by the plaintiff. Id. at 244.

       The United States Supreme Court reversed, concluding that dismissal could not be

denied “merely by showing that the substantive law that would be applied in the

alternative forum is less favorable to the plaintiffs than that of the present forum.” Id. at

247.   The Court further stated, while emphasizing the need to retain flexibility in

considering forum non conveniens motions, “dismissal will ordinarily be appropriate

where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or

the court, and where the plaintiff is unable to offer any specific reasons of convenience

supporting his choice.” Id. Finally, the Court reiterated the relevant public and private

interest factors stated in Gilbert. Id at 241, n. 6. The private factors mentioned were the

“relative ease of access to sources of proof; availability of compulsory process for

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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.” Id. The

public interest factors to be considered include administrative difficulties for already

congested courts and burdening jurors with litigation to which they have no relation or

connection. Id. “[W]here the trial court has considered all relevant public and private

interest factors, and where its balancing of these factors is reasonable, its decision

deserves substantial deference.” Id. at 257. In light of the factors stated in Trial Rule

4.4(C) and the reasoning in Piper, we hold that the trial court abused its discretion in

denying DePuy’s motion to dismiss.

      I.     Personal Jurisdiction

      Regarding Trial Rule 4.4(C)(1), an initial important consideration is DePuy’s

willingness to concede personal jurisdiction to Virginia or Mississippi courts. In this

case, the plaintiffs are already residents of those respective states.   Further, DePuy

submitted a stipulation under Trial Rule 4.4(D) stating that it would submit to the

personal jurisdiction of the plaintiffs’ home states and would waive any defense based on

the applicable statutes of limitation. The Plaintiffs argue extensively as to why Indiana

has personal jurisdiction over DePuy. However, the trial court’s personal jurisdiction

over a defendant has no bearing in satisfying the first prong of Trial Rule 4.4(C).

“Indeed, the doctrine of [forum non conveniens] can never apply if there is absence of

jurisdiction or mistake of venue.” Gilbert, 330 U.S. at 540. As a result, this first

consideration weighs in favor of dismissal.

                                              9
       II.    Convenience

       The next important consideration under Trial Rule 4.4(C)(2) is the “[c]onvenience

to the parties and witnesses of the trial in this state and in any alternative forum; . . . .” In

this case, we note again that each of the Plaintiffs live in Virginia or Mississippi.

Concerning the inconvenience to DePuy, we note that it is a corporation conducting

business nationally and that it is no stranger to multiparty litigation. As a result, it is

likely that this case will involve some inconvenience no matter what the jurisdiction. In

addition, “[a]ny inconvenience is mitigated by air travel, overnight delivery, electronic

data transmission and videotaped depositions which are a part of the normal course of

business for such companies.”        Employers Ins. of Wausau, 716 N.E.2d at 1022-23.

However, the facts of this case show that many of the key witnesses, such as physicians,

other medical personnel, and persons associated with the plaintiffs, are located in

Virginia or Mississippi. While there will likely be DePuy employees located in Indiana

who will be called as witnesses, it seems clear that the majority of the witnesses will be

nonresidents. Given the facts of this case, the inconvenience and cost DePuy would incur

securing the attendance of out of state witnesses (especially if they are uncooperative),

deposing them, and conducting additional discovery is not insignificant. As a result, this

factor also supports dismissal.

       III.   Choice of Law

       Another important consideration under Trial Rule 4.4(C)(3) is the difference in

conflict of law rules applicable to Indiana, Virginia, and Mississippi. In this case, both

parties agree that the laws of Virginia and Mississippi will apply to much, if not all, of

                                               10
the tort claims in this case. The plaintiffs argue “that it is completely reasonable to

presume that Indiana courts would be able to quickly and efficiently discover how

Virginia and Mississippi address particular points of law that may differ from Indiana.”

(Plaintiffs’ Br. 15). However, Piper, citing Gilbert, recognized that “[t]here is a local

interest in having localized controversies decided at home.” Piper, 454 U.S. at 241, n. 6.

“There is an appropriateness, too, in having the trial of a diversity case 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.” Id.

       Further, applying Indiana’s choice of law analysis, we conclude that Virginia and

Mississippi laws would apply to the tort claims in this case. The first part of Indiana’s

choice of law analysis is determining ‘“whether the differences between the laws of the

states are ‘important enough to affect the outcome of the litigation.’” Simon v. United

States, 805 N.E.2d 798, 805 (Ind. 2004) (quoting Hubbard Manufacturing Co. v.

Greeson, 515 N.E.2d 1071, 1073 (Ind. 1987)). If there is a conflict, ‘“the presumption is

that the traditional lex loci delicti rule (the place of the wrong) will apply. Under this

rule, the court applies the substantive laws of ‘the state where the last event to make an

actor liable for the alleged wrong takes place.’” Id. However, this presumption is not

conclusive. ‘“It may be overcome if the court is persuaded that ‘the place of the tort

‘bears little connection’ to this legal action.’” Id.

       Because the parties in this case agree that the location of the alleged wrong is

significant, we will focus our analysis on whether the differences in the laws among

Indiana, Virginia, and Mississippi would affect the outcome of this case.           In their

                                               11
complaint, the plaintiffs have alleged that they are entitled to compensatory and punitive

damages resulting from the hip replacement installation of DePuy’s ASR™ XL System.

As the alleged manufacturer, the plaintiff’s product liability claims also seek to subject

DePuy to a strict liability standard. In its answer, DePuy raises a number of affirmative

defenses, including the assertion that the ASR™ XL System conformed to the state of the

art at the time.

       Under Indiana’s Product Liability Act (“The Act”), “the plaintiff must show that

(1) the product is defective and unreasonably dangerous, (2) the defective condition

existed at the time the product left the defendant’s control, and (3) the defective condition

is the proximate cause of the plaintiff’s injuries.” Natural Gas Odorizing, Inc. v. Downs,

685 N.E.2d 155, 160 (Ind. Ct. App. 1997); IND. CODE § 34-20-2-1. A product liability

action may be based on the doctrine of strict liability, but it may not be brought against a

seller of defective product unless that seller is also the manufacturer. IND. CODE § 34-20-

2-3. “If a court is unable to hold jurisdiction over a particular manufacturer of a product .

. . then that manufacturer’s principle distributor or seller over whom a court may hold

jurisdiction shall be considered . . . the manufacturer of the product. IND. CODE § 34-20-

2-4.

       In Virginia, products liability actions are not codified, but are rooted in common

law. It does not matter whether the theory of liability against a manufacturer is labeled

warranty or negligence, the standard of safety of goods is the same; the product must be

fit for the ordinary purposes for which it is to be used. Jeld-Wen, Inc. v. Gamble by

Gamble, 501 S.E.2d 393, 396 (Va. 1998). “In order to recover under either of these

                                             12
theories against the manufacturer of a product, ‘a plaintiff must show (1) that the [product

was] unreasonably dangerous either for the use to which [it] would ordinarily be put or

for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous

condition existed when the goods left the manufacturer’s hands.’” Id. (quoting Morgen

Industries, Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996)).               Virginia does not

recognize strict liability as a ground for recovery in products liability cases. Harris v.

T.I., Inc., 413 S.E.2d 605, 609-10 (Va. 1992).

       Under the Mississippi Products Liability Act, the plaintiff “has the burden of

showing that the defect that allegedly was the proximate cause of the injury existed at the

time that the product left the hands of the manufacturer, and that the defect rendered the

product unreasonably dangerous. Accordingly, the proof must support that no material

change in that product occurred after leaving the manufacturer’s control.”              Wolf v.

Stanley Works, 757 So.2d 316, 319 (Miss. Ct. App. 2000); MISS. CODE ANN. § 11-1-63

(2013). Following Restatement of Torts (Second) § 402A, strict liability is a ground for

recovery against both manufacturers and sellers in Mississippi. Scordino v. Hopeman

Brothers, Inc., 662 So.2d 640,643 (Miss. 1995).

       Indiana’s conflict of law analysis shows a clear conflict between the jurisdictions

concerning whether strict liability is available as a ground for recovery.              Indiana

recognizes strict liability, but only against manufacturers. Virginia does not recognize

strict liability in product liability cases. Finally, Mississippi allows strict liability against

both manufacturers and sellers. The availability, or lack thereof, of strict liability is

significant enough to affect the outcome of this case. As a result, conflict of law analysis

                                               13
and T.R. 4.4(C)(3) would require this case to be heard where DePuy’s ASR™ XL

System was implanted, which was Virginia or Mississippi.

       IV.     Additional Factors

       Finally, with regards to Trial Rule 4.4(C)(4), the record reveals other factors

supporting our decision that the trial court abused its discretion.           First, we see no

evidence in the record that Virginia or Mississippi are inadequate forums. In fact, during

oral argument, the plaintiffs’ desire for trial in Indiana focused on securing an earlier trial

date rather than any deprivation of their rights if trial took place elsewhere. There has

been no showing by the plaintiffs that trial in their home forum will deprive them of any

remedy or subject them to unfair treatment. See, e.g., Anyango, 971 N.E.2d at 662

(forum found to be adequate for the purposes of T.R. 4.4(C) “so long as the parties will

not be deprived of all remedies or treated unfairly.”).

       Second, as previously mentioned, federal courts are already managing pretrial

activities related to the ASR™ XL System. Once pretrial proceedings are complete in the

MDL, the district court will transfer cases to a proper venue for trial. Thus, Plaintiffs’

claim that dismissal from Indiana to another forum “would reward DePuy for the harm it

caused to out-of-state plaintiffs, effectively depriving plaintiffs of any opportunity to

litigate their case in a state court,” is not persuasive. (Plaintiffs’ Br. 16).

       For the aforementioned reasons, we find that the trial court abused its discretion in

denying DePuy’s motion to dismiss on forum non conveniens grounds. We reverse and

remand to the trial court for issuance of the appropriate order dismissing this case for

refiling in Virginia or Mississippi.

                                               14
     Reversed and remanded.

MATHIAS, J., and BRADFORD, J., concur.




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