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Forum Non Conveniens

By James J. 'J.' Ferrelli
On July 31, 2007, the Appellate Division of the New Jersey Superior Court affirmed the forum non conveniens dismissal of pharmaceutical product liability claims filed by 95 UK plaintiffs in In re Vioxx Litigation, Docket No. A-1731-06T1. The case involved allegations asserting personal injury claims allegedly caused by defendant Merck & Co., Inc.'s anti-inflammatory medicine, Vioxx'. This is a noteworthy forum non conveniens decision that could well have ramifications outside of New Jersey, particularly in other mass tort situations.

The court applied the forum non conveniens doctrine set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), which was adopted in New Jersey in Gore v. U.S. Steel Corp., 15 N.J. 301 (1954). First, the court found that the UK was an adequate alternative forum for these plaintiffs, rejecting plaintiffs' argument that their inability to recover identical damages in the UK, including punitive damages, and other factors, made the UK an inadequate alternative forum. Second, balancing the parties' 'private interest' factors, the court found them to be 'geographically divided,' and not dispositive of Merck's burden of showing that the New Jersey forum is 'demonstrably inappropriate.'

Finally, the court held that the 'public interest' factors were decisive. It was likely that UK law would apply to issues relating to product approval and labeling, which occurred in the UK. Further, the UK forum had a 'distinctive' interest in adjudicating a case involving a prescription drug that was subject to UK regulatory approval, and was sold and ingested in the UK. The UK also had a strong interest in addressing the injuries of its citizens that occurred within its borders. While New Jersey has an interest in regulating the conduct of New Jersey-domiciled corporations, the court held that New Jersey's interest would be 'well-satisfied' through litigation of the 15,000 Vioxx suits filed by U.S. residents that were pending in New Jersey.

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