Picketts v. International Playtex, Inc.

Shea, J.,

dissenting. As the majority recognizes, “the doctrine of forum non conveniens vests discretion in the trial court to decide ‘where trial will best serve the convenience of the parties and the ends of justice.’ ” Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989). “It bears emphasis, however, that these guidelines begin with the proposition that the trial court’s exercise *514of its discretion may be reversed only upon a showing of clear abuse.” Id.

The majority purports to have found such an abuse of discretion in agreeing with the contention of the plaintiffs “that the trial court, in balancing the comparative advantages of each of the alternative fora, wrongly shifted the burden of persuasion onto the plaintiffs.” This view, however, ignores the several references in the memorandum of decision to the presumption in favor of the plaintiffs, such as the adoption of this quotation from Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947): “[Ujnless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” In summarizing its analysis, the court expressly referred to the presumption: “The inconvenience and burdens of a trial in Connecticut strongly overcome the presumption in favor of the plaintiffs’ preferred forum.”

The majority holds, nevertheless, that the conclusion of the court that several witnesses who attended the decedent are not amenable to compulsory process in Connecticut is somehow flawed by the failure of the defendants to furnish affidavits summarizing their testimony and attesting to their unavailability. There cannot be any dispute, however, over the inability of the defendants to bring these witnesses to Connecticut by compulsory process. There was a sufficient basis in the undisputed facts to support the trial court’s discussion of this subject as follows: “The defendants point out that all sources of proof concerning the decedent’s use of the product, her illness, her medical history, and her treatment are in British Columbia. At least two doctors whom the plaintiffs did not name as willing to come to Connecticut were involved in the care of Linda Ann Picketts at Penticton Hospital in British Columbia. Nurses and other persons in British Columbia may also *515have information relative to the cause of death. For example, there is an indication that a respirator used during efforts to resuscitate Linda Ann Picketts may have malfunctioned. All these witnesses are beyond the compulsory process of this forum. ‘Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.’ Gulf Oil Corporation v. Gilbert, supra, 511.”

It is an unfounded distortion for the majority to infer from this reasoned analysis that the trial court “impermissibly penalized the plaintiffs for failing to provide affidavits from other treating physicians as well as other medical personnel” and thus stood “the applicable burden of proof on its head.” (Emphasis in original.)

The majority refers also to the advent of such modern technological innovations as jet travel and videotaped depositions as diminishing the force of the doctrine of forum non conveniens, but does not purport to abrogate the doctrine. The availability of air travel undoubtedly facilitates the ability to bring witnesses to court from distant locations, assuming those witnesses are willing to come. Even when such witnesses do appear to testify, however, the payment of their expenses, aside from the financial burden imposed, may often be the subject of cross-examination designed to suggest to a jury partiality or interest on their part as compared to those witnesses who have been subpoenaed. The videotaped deposition, similarly, is not a wholly satisfactory answer to the concern of the trial court over lack of compulsory process. Experienced trial lawyers recognize that the impact of such testimony cannot compare with that of a live witness. Because such testimony is ordinarily obtained before trial, it frequently does not cover significant aspects of a case that develop during a trial.

*516The majority also appears to challenge the trial court’s assessment of the public interest factors as favoring a trial in British Columbia. The memorandum of decision refers to the fact that the decedent was a life-long resident of Canada, that all medical treatment was rendered in Canada, that the product was manufactured in Canada by a Canadian corporation and that the manufacture, caution labels and distribution of the product were regulated by the Canadian government. These circumstances, the court concluded, as compared with Connecticut’s interest as the site of the corporate headquarters of the defendant, where the product was designed, weighed heavily in favor of a Canadian forum. The court also mentioned “the advantages in having the trial in a forum which is at home with the law which must govern the case” and that “Connecticut should not impose its own view of the safety, warning, and duty of care required of medical devices upon a Canadian province.”

The majority seems to question the applicability of British Columbia substantive law as a factor supporting the trial court’s conclusion that the interest of Connecticut in this litigation was “minimal” by comparison. That question is left hanging, however, to be faced by some unfortunate trial judge. If our law is uncertain in this respect, that circumstance alone would militate strongly in favor of British Columbia as a forum. “The doctrine of forum non conveniens . . . is designed in part to help courts avoid conducting complex exercises in comparative law.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).

“ ‘Wisely it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of [the] remedy [of dismissal for forum non conveniens]. The doctrine leaves much to the discretion of the court to which [the] plaintiff resorts, and experience has not shown a judicial tendency to *517renounce one’s own jurisdiction so strong as to result in many abuses.’ ” Union Carbide Corporation v. Aetna Casualty & Surety Co., supra, 322, quoting Gulf Oil Corporation v. Gilbert, supra, 508. In reviewing this exercise of judicial discretion with such a heavy hand, the majority usurps the function of the trial court and fails to accord reasonable deference to its evaluation of the factors involved.

Accordingly, I dissent.