'Forum Non Conveniens': How To Avoid The Tide Of Lawsuits Brought By Foreign Nationals

British jurist Lord Alfred Denning famously remarked that, "[a]s a moth is drawn to the light, so is a litigant drawn to the United States."1 Because remedies and procedures available in U.S. courts are generally more attractive to plaintiffs than those available in other countries, foreign litigants frequently file suit in the U.S. with dreams of "striking it rich" with "jackpot verdicts." Thus, on many occasions, foreign nationals claiming to have been harmed by drugs or medical devices have chosen to bring suit against the manufacturers and/or their parent companies in the U.S., rather in their own country.

Suppose, for example, that "Alice," "Simon," "Maria," and "Patrick," are citizens and residents of foreign countries who all file suit in the U.S., claiming to have sustained injuries from a drug manufactured in the U.S. by "Acme," but that was prescribed and ingested in their own respective countries, where they all received subsequent medical treatment. Alice, a Canadian, would prefer to file suit in the U.S., because she cannot recover punitive damages under Canadian law. Simon, a United Kingdom (U.K.) resident, would prefer to file suit in the U.S. because of more favorable remedies and because he is having difficulty finding legal counsel in the U.K., where the prevailing party is entitled to attorney's fees.

Maria, a resident of Mexico, would prefer to file suit in the U.S., because there is no right to a jury trial in Mexico, the Mexican court process is slower, and the right to discovery is more limited. Finally, Patrick, a resident of New Zealand, would prefer to pursue his claims in the U.S., because he cannot even file a lawsuit for compensatory damages in his home country; instead, New Zealand has a statutory administrative no-fault compensation system, which allows compensation to the injured parties without finding fault or negligence and reduces the legal process to a matter of weeks.

The U.S. court has jurisdiction over all of these lawsuits, because Acme, a U.S. company, manufactured the drug in the U.S. and made other similar decisions in the U.S. Ironically, traditional maneuvering to obtain a "home field advantage" is completely thrown out the window, as none of the parties wants the case to be tried in his/her/its own countries. Would the U.S. court, even though it has jurisdiction, grant a request by Acme to dismiss the lawsuits and require these plaintiffs to pursue remedies in their own countries? Quite probably.

Apprehensive of serving as the "courtroom to the world for adjudication of essentially foreign disputes with only nominal connections to the United States,"2 American courts have frequently relied on the doctrine of forum non conveniens to weed out lawsuits that ought to be pursued in another country. Under this doctrine, a trial judge generally retains the discretion to dismiss a lawsuit in the event that: (a) an alternative forum is available and adequate; and (b) the alternative forum is more convenient, after considering both private and public interests. In Gulf Oil v. Corp. v. Gilbert,3 the Supreme Court identified the following public interest considerations:

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. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. 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.

Generally recognized private interests include "(1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses; (3) possibility of view of premises, if view would be appropriate to the action; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive."4

Piper Aircraft Co. v. Reyno

The Supreme Court's decision in Piper Aircraft Co. v. Reyno5 in 1981 is the seminal case applying the forum non conveniens doctrine to a lawsuit brought by a foreign national. The plaintiffs in that case, representatives of estates of Scottish citizens who died in an airplane crash in Scotland, brought suit in the U.S. against the U.S. manufacturers of the aircraft and propeller. The district court concluded that the case should be dismissed for forum non conveniens. The Court of Appeals reversed, finding that a case should not be dismissed for forum non conveniens if the substantive law that would be applied in the alternative forum is less favorable. Because the plaintiffs could pursue strict liability through tort claims in the U.S., but not in Scotland, the Court of Appeals concluded that the plaintiffs were entitled to have their claims resolved in their chosen forum.

On appeal, the Supreme Court reversed and reinstated the district court's dismissal of the lawsuit. In doing so, the Court set a very low bar for considering whether a remedy is...