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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VICKIE L. JEANS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B. BRAUN MEDICAL INC., A : No. 3071 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 20, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 160802546
BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 17, 2019
The Appellant, Vickie L. Jeans (Jeans), appeals the order of the
Philadelphia Court of Common Pleas dismissing her products liability suit on
the ground of forum non conveniens. Jeans 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
her claims. We reverse and remand.
Jeans’ products liability action arises from the implantation of a
“VenaTech LP Vena Cava Filter” (VenaTech Filter).1 At the time of the
implantation in 2009, Jeans resided in Mississippi and she had the procedure
performed in Tennessee. In 2015, while residing in Mississippi, Jeans
underwent another medical procedure, at which time she allegedly discovered
that the VenaTech Filter had malfunctioned, causing recoverable damages.
According to Jeans’ complaint, the device is designed to be implanted in
a person’s inferior vena cava, a central vein in the heart. Complaint,
8/19/2016, 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 ¶ 18. 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.
Jeans asserts that the device “failed” and caused perforations of the
caval wall, putting her at numerous health risks, “including the risk of death.”
Id. at ¶ 24. This will require “ongoing medical care and monitoring for the
rest of her life.” Id.
Jeans filed her complaint in 2016 in Philadelphia County, alleging seven
causes of action: Negligence, Strict Products Liability/Failure to Warn, Strict
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1 The facts are gleaned from the trial court’s opinion and the certified record.
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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 Jeans’ complaint, arguing that the suit should be
refiled in her home state of Mississippi or in Tennessee 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 Mississippi or Tennessee 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 Jeans’ 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
County. B. Braun France is a French corporation with no physical presence in
the United States.
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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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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 Jeans’ 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 Jeans
had the VenaTech Filter implanted in Tennessee; and that she 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
post-market surveillance of the VenaTech – reside and work in Lehigh
County.” O’Connell, Affidavit, ¶ 13 (emphasis added).
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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 20, 2018, the case was dismissed and Jeans timely appealed.
In its opinion, the trial court found that Pennsylvania has little interest in
resolving Jeans’ products liability claims. Trial Court Opinion, 12/20/2018, at
4-5.
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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 Tennessee or Mississippi would be even more so.
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The trial court outlined several other reasons for granting the dismissal.
It reasoned that if the case were re-filed in Jeans’ home state or Tennessee,
potential difficulties in applying out-of-state law would be avoided and the
presence of witnesses could more easily be ensured. Id. at 5. It was
presumed that causation and damages would be hotly contested issues at
trial, and that Jeans’ medical care providers in Mississippi and Tennessee
would be unwilling to attend a Pennsylvania trial. Id.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. The trial court ruled that the physical presence of any
documentation in Mississippi or Tennessee would make it inconvenient to hold
the trial in Pennsylvania. Id. The trial court did not reach the Braun
Defendants’ alternative motion to transfer the case to Lehigh County.
Jeans timely appealed and both Jeans and the trial court complied with
Rule 1925. In her brief, Jeans asserts the following issue for our
consideration:
[D]id the Trial Court misapply the law or render a manifestly
unreasonable decision by overruling [Jeans’s] right to choose her
forum and . . . granting the Appellees’ motion to dismiss based on
forum non conveniens when the public and private factors do not
weigh strongly against her chosen forum?
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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. Mississippi and Tennessee have also adopted the UIDDA.
See Miss. Code Ann. § 11-59-1; Tenn. Code Ann. § 24-9-201.
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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 Jeans’ action occurred outside
of Pennsylvania. They argue that Jeans is a Mississippi resident who had the
subject surgery in Tennessee, 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, 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.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/19
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