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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN A. VARS, AN INDIVIDUAL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B. BRAUN MEDICAL INC., A : No. 3052 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 22, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01155 June Term, 2017
BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 17, 2019
The Appellant, Stephen A. Vars (Vars), appeals the order of the
Philadelphia Court of Common Pleas dismissing his products liability suit on
the ground of forum non conveniens. Vars 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.
Vars’ 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, Vars resided in Washington where the procedure was
performed. In 2015 and 2016, while residing in Washington, Vars underwent
CT scans which allegedly revealed that the VenaTech Filter had malfunctioned,
causing recoverable damages.
According to Vars’ 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.
Vars 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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Vars 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 Vars’ complaint, arguing that the suit should be
refiled in his home state of Washington 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 Washington 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 Vars’ 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 Vars’ 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 Vars had
the VenaTech Filter implanted in Washington; 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 Vars’ 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 Washington would be even more so.
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of [BMI and BIS] – the decisions and documentation for the lotus of [Vars’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 Vars’ 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 Vars’ medical
care providers in Washington 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.
Vars timely appealed and both Vars and the trial court complied with
Rule 1925. In his brief, Vars asserts the following issue for our consideration:
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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. Washington has also adopted the UIDDA. See Wash.
Rev. Code § 5.51.902.
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[D]id the Trial Court misapply the law or render a manifestly
unreasonable decision by overruling [Vars’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 Vars’ action occurred outside
of Pennsylvania. They argue that Vars is a Washington resident who had the
subject surgery in Washington, 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, because the issue of transfer from
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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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Philadelphia County to Lehigh County is not before us, the Braun Defendants’
pending motion 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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