STATE EX REL. WYETH v. Grady

THOMAS C. CLARK, Senior Judge,

concurring.

After deliberation of the facts and consideration of long established legal precedent, this Court holds that the preliminary writ of prohibition issued for reasons of forum non conveniens should be and is hereby quashed. Therefore, the circuit court of the City of St. Louis may proceed to adjudicate these cases.

The saga of hormone replacement therapy litigation continues. A multitude of cases were filed in the St. Louis City Circuit Court against national pharmaceutical companies in July, 2006. Chapter Two opened with the defendant companies seeking removal to federal court from the St. Louis City Circuit Court.

Ad but eleven of these cases involving hormone replacement therapy were rerouted to the multi-district litigation in Arkansas, thereby ending Chapter Two.

*224In Chapter Three, the remaining eleven hormone replacement therapy cases were returned by the federal district court in St. Louis to the St. Louis City Circuit Court for adjudication.

As Chapter Four opened, the defendants requested the Hon. Thomas C. Grady, presiding judge of the St. Louis City Circuit Court, to exercise his discretion and decline jurisdiction in ten of the hormone replacement therapy cases on the basis of forum non conveniens.1

FACTUAL AND PROCEDURAL BACKGROUND

In forum non conveniens, the trial judge has personal and subject matter jurisdiction, which in layman terms means that the trial court has the legal authority to proceed. Anglim succinctly defined forum non conveniens:

The doctrine oí forum non conveniens provides that notwithstanding proper jurisdiction and venue by letter of the statute, a trial judge has discretion to not exercise jurisdiction if the forum is seriously inconvenient for the trial of the action involved and if a more appropriate forum is available to the plaintiff.2

Thus, the doctrine of forum non conve-niens grants the trial judge the discretion to examine the facts of the case and to decline to proceed “if the forum is seriously inconvenient ... and if a more appropriate forum is available to the plaintiff.”3 However, the trial court is directed to proceed cautiously, with restraint.

But a plaintiffs choice of forum is not to be disturbed except for “weighty reasons” and the case should be dismissed only the “balance is strongly in favor” of the defendant.4

Judge Grady did so, examined the ten cases, considered the facts and the law, then issued ten separate but explanatory orders telling why the trial court would not exercise its discretion to dismiss these cases. Instead, the court would do its duty and continue to adjudicate the hormone replacement therapy cases.5 This ended Chapter Four.

In Chapter Five, the defendants challenged Judge Grady’s considered opinions and requested that the Missouri Court of Appeals, Eastern District, prohibit Judge Grady from proceeding with these cases, based upon forum non conveniens considerations.

A preliminary writ was issued, but after consideration, that court quashed its writ, thereby allowing Judge Grady to adjudicate these cases in Chapter Six.

WRIT OF PROHIBITION vs. TRIAL COURT DISCRETION

But defendants continue their authorship of this saga in Chapter Six, this time requesting that this Court prohibit Judge Grady from proceeding based upon forum non conveniens considerations. By this decision, this Court must address and de*225cide two fundamental concepts in the administration of justice, appellate court deference to discretionary rulings by the trial court and, possibly for the first time, this Court’s interlocutory imposition of forum non conveniens despite rejection by the trial court.6

Despite its long-standing history of respecting discretionary orders of forum non conveniens motions by trial judges, this Court, a court of review and a court of error, is requested to embark on an early course of active involvement in forum non conveniens litigation that most certainly invites more writ filings and usurps trial court discretion and case management.

RIEDERER FACTORS APPLICABLE TO FORUM NON CONVENIENS

These issues, trial court discretion and this Court’s interlocutory application of forum non conveniens, are intertwined. Traditionally, the judicial system allows the plaintiff to select the forum by filing suit.7 Plaintiffs selection is not absolute, but rather is subject to convenience considerations by the trial court, which must weigh relevant factors including, but not limited to, those set out by Riederer.8 The basic factors to be weighed in any case and from which a determination is made whether a case should be dismissed on the basis of forum non conveniens are:

(1) place of accrual of the cause of action,
(2) location of witnesses,
(3) the residence of the parties,
(4) any nexus with the place of suit,
(5) the public factor of the convenience to and burden upon the court, and
(6) the availability to plaintiff of another court with jurisdiction of the cause of action affording a forum for plaintiffs remedy.9

But, first consider the reverence with which past appellate courts have respected trial court discretion in deciding forum non conveniens issues.10

*226Additionally, the appellate courts have honored the trial court’s exercise of discretion in forum non conveniens by presuming the exercise of discretion is correct, confining its inquiry to the facts known to the trial court and imposing upon the petitioner the burden of showing the abuse of discretion.11

Besse emphatically held that “our writs are issued grudgingly, and not to correct discretionary rulings,”12 adding that these matters could be reviewed and corrected on appeal.13 Since Besse, however, appellate courts have expressed their support of trial court discretion in forum non conve-niens cases, but with limitation. First, reemphasizing its support for trial court discretion, this Court stressed that “the general rule is that, if a court is entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court.”14 In the same breath, this Court set the limitation on trial court discretion, holding “[HJowever, if abuse of that discretion is so great as to be an act in excess of jurisdiction and is such as to create injury which cannot be remedied on appeal, prohibition may be appropriate.”15

Thus, against this long history of supporting trial court discretion on forum non conveniens cases, in order to support the issuance of this extraordinary writ of pro*227hibition, this Court must analyze and conclude that Judge Grady exceeded his jurisdiction by declining to act; i.e., declining to dismiss these cases pursuant to forum non conveniens.

Continuing, this Court must also evaluate Judge Grady’s ruling against those legal standards that govern forum non conveniens decisions. In Holliger, this Court ruled,

[Djenial of a motion to dismiss on the grounds of forum non conveniens should not be disturbed unless the relevant factors weigh heavily in favor of applying the doctrine and litigating the case in Missouri would lead to an injustice because such trial would be oppressive to the defendant or would impose undue burden on the Missouri courts.16

Since forum non conveniens decisions are “fact intensive” and the weight to be afforded any factor is dependent on the circumstances,17 a detailed recitation of the interaction between the facts of these cases and those relevant forum non conve-niens factors is essential and follows.

Of greatest moment in this inquiry is the “nexus” factor. Webster’s unabridged dictionary has multiple definitions, to-wit; connection or interconnection; tie; link or a connected group or series.18

Therefore, the logical question is simply whether there is a “nexus” connection between Missouri19 as a state and this litigation involving hormone replacement therapy drugs. These same prescriptions are being sold, distributed, advertised, prescribed and administered to Missouri citizens as admitted by defendants’ counsel in argument. Admittedly, clinical surveys and studies involving Missouri citizens are and have been conducted by defendants with these pharmaceuticals.20

To prevail on a claim that the trial court abused discretion finding the defendant has a Missouri ... nexus, the defendant must produce substantial evidence clearly demonstrating that the corporate business activities in Missouri are limited or that those activities have no significant relationship to the jurisdiction in which the case is filed.21

The record is lacking on any limitation of business activities in Missouri and, to the contrary, shows a significant relationship with Missouri citizens. Defendants have targeted Missouri citizens for business, clinical studies and profit, but shun Missouri justice. If the safety, well being and future health of Missouri citizens is not a Missouri interest that merits judicial protection and Missouri adjudication, then what does? Must a Missouri citizen be harmed before Missouri judicial interest attaches? This author believes otherwise.

Defendants have a thriving pharmaceutical business in Missouri with resident and non-resident representatives. These contacts or incidents establishing personal ju*228risdiction overlap with the nexus factor, giving Missouri citizens a strong interest in this litigation and justifying trial in Missouri.

The duty of establishing/ontm non con-veniens lies with the defendants.22 “The defendant has the burden of establishing all factors supporting a claim that a Missouri court is an inconvenient forum.”23 Defendants cite statistics showing the St. Louis City Circuit Court judges maintain the highest caseload, conduct more jury trials and involve 10-15% of their citizens on jury duty in fiscal years 1998-2003.24 Using outdated statistics, defendants triumphantly proclaim that the St. Louis City Circuit Court is overburdened and its judicial efforts strained — a conclusion explicitly refuted by Judge Grady’s orders. Judge Grady knows the judicial capabilities and limitations of the St. Louis City Circuit Court because he is the duly elected and current presiding judge of that court. In Anglim, this same Court supported the denial of forum non conveniens by St. Louis City Circuit Court Judge James Sanders. Moreover, this Court expressly deferred to Judge Sanders’ knowledge of the judicial capacity and burdens of the St. Louis City Circuit Court, noting with confidence that Judge Sanders had been presiding judge of that court. Judge Grady deserves no less respect and deference.25

The statistics26 suggest that the St. Louis City Circuit Court judges and jurors *229are the hardest working judges and jurors in Missouri, possessing a strong work ethic. However, defendants request this Court to find that the St. Louis City Circuit Court is overburdened and, then, to deny the St. Louis City Circuit Court the opportunity to sit in judgment on matters involving its citizens’ health and well-being. Certainly, Judge Grady is deserving of equal dignity and deference on his knowledge of his court’s resources as was afforded to his predecessor, Judge Sanders.27 The statistics are unpersuasive. There is no statistic that the St. Louis City Circuit Court is presently unable to meet time deadlines mandated by this Court or is failing to keep pace with other circuit courts in processing cases. Nor are there any statistics showing a backlog of cases in the St. Louis City Circuit Court. Again, this Court’s ruling must be based on those facts that were before the trial court when it ruled.28

In short, as with the nexus factor, defendants fail to establish that the judicial burdens on the St. Louis City Circuit Court mandate imposition of forum non conveniens.

Factor Two, the location of witnesses, strives to provide live testimony by eyewitnesses and treating physicians with a local forum. Defendants here contend that the live testimony of plaintiffs’ prescribing and treating physicians at trial is imperative. In the real world of 2007 America, videotape testimony by expert witnesses, especially physicians, is more common place than live testimony.29 Furthermore, defendants contend that a trial at those physicians’ state of residence subjects them to subpoena power and live mandated appearances. Any experienced and proficient trial attorney will, at all costs, shy away from mandating witness’ appearances, especially physician expert witnesses, because of the hostility engendered and the almost certain adverse consequences.

Besse targeted eyewitnesses and treating physicians for live testimony by providing a convenient local forum, but expressly acknowledged that “doctors often testify by Reposition, even in trials in their home area.”30 Besse expressly omitted retained expert witnesses from “convenience” consideration, noting that adequate compensation would lure them to appear and testify in distant trial forums. “[T]he moving party has the initial burden of establishing the relative inconvenience caused by the witnesses’ location and, on appeal, the aggrieved party must also show that discretion was abused.” 31

*230Therefore, in cases involving hormone replacement therapy in this modern videotape/CD culture, defendants will be well able to present their evidence in St. Louis City Circuit Court by electronic reproduction.

Finally, defendants imply there are equally available forums for hormone replacement therapy trials, suggesting that affirmative defenses in other forums can be waived and trials fairly conducted. Interestingly, in addressing the “witness” availability factor, defendants were both untrusting and skeptical of St. Louis City Circuit Court’s limited subpoena power “to compel” testimony by non-resident witnesses, but entreat this Court “to trust” foreign tribunals to waive affirmative defenses in the interest of justice.

Again, there was no information, data or commitment by any party or foreign tribunal that these hormone replacement therapy cases will receive a fair and just adjudication elsewhere — only statements by counsel. In the absence of that assurance, caution must prevail, and this Court must resolve Factor Six with certainty — that being Missouri justice.32

Evaluation of the justice prong necessarily includes consideration of the impartiality and fairness of the St. Louis city jurors. Already Judge Wolff has established their dedication to duty and willingness to serve.33 However, in this instance, the St. Louis city jury would be significantly impartial because no litigant has Missouri identity. Moreover, St Louis city is an ideal forum given that the plaintiffs have filed suit there and the defendants have chosen to conduct their pharmaceutical businesses in St. Louis.

Again, Judge Grady expressly decreed that these ten cases would not burden the St. Louis City Circuit Courts. Additionally, defendants have established thriving businesses in Missouri. In Holliger,34 this Court held that a sizable business with many resources was not unfairly treated by a Missouri adjudication. Similarly, these defendants will not be either. Lastly, without supportive facts establishing the relevant factors essential for forum non conveniens, this Court reaches the same conclusion as the Westbrooke court. “We could reach that conclusion only through speculation and not based on a record supported by facts.”35

Finally, in August 1999, the Missouri Court of Appeals, Western District, declared in Mauer “that no Missouri appellate court has ever issued a writ directing a trial court to dismiss a case on grounds of forum non conveniens”36 Accepting that conclusion and supplementing that research to date, the fact remains “that no Missouri appellate court has ever issued a writ directing a trial court to dismiss a case on grounds of forum non conve-niens.” 37 Magnifying the solemnity of this decision is the absolute reluctance of appellate court judges to issue writs in forum non conveniens cases.38 Disregard*231ing established boundaries between discretion and review is ill advised. Moreover, reasonable minds, including the Missouri Court of Appeals, Eastern District and this jurist, concur. Established precedent firmly supports the trial court’s exercise of discretion when reasonable minds differ.39

I respectfully concur in quashing the preliminary writ, believing that Judge Grady’s denial of forum, non conveniens dismissal was factually and legally correct and, furthermore, that the denial was discretionary within his jurisdiction and deserving of this Court’s affirmation.

. One case remained with the St. Louis City Circuit Court.

. Anglim v. Missouri Pacific R.R. Co., 832 S.W.2d 298, 302 (Mo. banc 1992); citing Restatement (Second) of Conflicts of Laws sec. 84 (1971); State ex rel. Ford Motor Company v. Westbrooke, 12 S.W.3d 386, 392 (Mo.App. 2000); State ex rel. The Kansas City Southern Railway Company v. Mauer, 998 S.W.2d 185, 188 (Mo.App.1999); State ex rel. K-Mart Corporation v. Holliger, 986 S.W.2d 165, 169 (Mo. banc 1999).

. Anglim, 832 S.W.2d at 302; Westbrooke, 12 S.W.3d at 392.

. Anglim, 832 S.W.2d at 302.

. These orders are published in the Index portion of the appellate court filing.

. Mauer, 998 S.W.2d at 191.

. Besse v. Missouri Pacific R.R. Co., 721 S.W.2d 740, 742 (Mo. banc 1986).

. State ex. rel. Chicago, Rock Island & Pacific R.R. Co. v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970); Anglim, 832 S.W.2d at 302; Mauer, 998 S.W.2d at 188, 191. For instance, in Mauer "the trial court judges were entitled to consider, and rely upon, plaintiffs’ representations that plaintiffs would pay the cost of transporting certain witnesses to Jackson County for the purpose of trial or depositions, and that plaintiffs would agree to undergo an independent medical examination in Jackson County. [The court relied] upon plaintiffs’ representations in this regard. [And] [accordingly, while [it did] not believe corporate residence is the sole determinative factor, and while [it believed] the trial judges could properly have dismissed this action on grounds of forum non conveniens, [it declined] ... to take the extraordinary measure of directing the trial court to dismiss the action.”

. Riederer, 454 S.W.2d at 39; Anglim, 832 S.W.2d at 303; Westbrooke, 12 S.W.3d at 392; Mauer, 998 S.W.2d at 188-89; and Holliger, 986 S.W.2d at 169.

. See Anglim, 832 S.W.2d at 303 ("Because the application of the doctrine of forum non conveniens is fact intensive and the weight to be accorded any factor is dependent on the circumstances, trial court discretion is essential.”); Besse, 721 S.W.2d at 742 ("The decision on the question of dismissal for inconvenient forum involves a weighing of the factors set out in Riederer. For this reason, the decision is one which is largely committed to the discretion of the trial court.”); Westbrooke, 12 S.W.3d at 394 ("We recognize that cases such as the instant one may be legitimate candidates for the application of forum non conveniens upon a proper showing. In this regard, we note, however, that consideration of such motions is fact intensive and the weight to be accorded any factor is dependent on the circumstances, with the result that such motions are pri*226marily for the trial court’s discretion.”); Mauer, 998 S.W.2d at 188 ("Because of the broad discretion allowed trial judges on matters of forum non conveniens, relief is not often granted.”); Holliger, 986 S.W.2d at 169 ("Exercise of this doctrine is within the discretion of the trial court.”).

. Anglim, 832 S.W.2d at 303 ("On appeal, in determining whether the trial court’s ruling amounted to an abuse of discretion, only those facts will be considered that were before the trial court when it ruled on the motion to dismiss, and the evidence will be viewed in a light favorable to the result of the trial court. Also on appeal, discretionary rulings are presumed correct, and the appellant bears the burden of showing an abuse of discretion.”); Westbrooke, 12 S.W.3d at 391 (“In a prohibition proceeding the burden is on the petitioning party to show that the trial court exceeded its jurisdiction, and that burden includes overcoming the presumption of right action in favor of the trial court's ruling.”); Westbrooke, 12 S.W.3d at 392 ("Discretionary rulings such as a ruling on a motion to dismiss for forum non conveniens are presumed correct, and the party contesting that ruling bears the burden of showing an abuse of discretion.”); Mauer, 998 S.W.2d at 188 ("We presume that discretionary rulings are correct. The burden is on Kansas City Southern to show an abuse of discretion.”).

. Besse, 721 S.W.2d at 742.

. Id. at 743; State ex rel. McCulloch v. Schiff, 852 S.W.2d 392 (Mo.App.1993); Mauer, 998 S.W.2d at 188; Holliger, 986 S.W.2d at 169.

. Holliger, 986 S.W.2d at 169; Westbrooke, 12 S.W.3d at 392 ("The general rule is that as to a matter about which the court is entitled to exercise discretion, prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court.”); Mauer, 998 S.W.2d at 188 (”[I]f a court is entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court.”).

. Holliger, 986 S.W.2d at 169; Westbrooke, 12 S.W.3d at 392 ("However, if abuse of that discretion is so great as to be an act in excess of jurisdiction and is such as to create injuiy which cannot be remedied on appeal, prohibition may be appropriate.”); Mauer, 998 S.W.2d at 188 ("Nonetheless, prohibition may be appropriate for an abuse of discretion that is so great that it constitutes an act in excess of jurisdiction and creates an injury that cannot be remedied on appeal.”). But see Anglim, 832 S.W.2d at 303 ("Judicial discretion is abused when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration ...”).

. Id. at 302-03; Mauer, 998 S.W.2d at 188; Westbrooke, 12 S.W.3d at 392.

. Westbrooke, 12 S.W.3d at 394; Besse, 721 S.W.2d at 742; Anglim, 832 S.W.2d at 303; and Mauer, 998 S.W.2d at 189.

. Webster's new international Dictionary 1649 (2d ed. 1950).

. Anglim, 832 S.W.2d at 304; Westbrooke, 12 S.W.3d at 393.

. Mauer, 998 S.W.2d at 189 ("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.”).

. Anglim, 832 S.W.2d at 305; Besse, 721 S.W.2d at 743.

. Anglim, 832 S.W.2d at 304-05; Mauer, 998 S.W.2d at 190; Westbrooke, 12 S.W.3d at 392-93; and Taylor v. Farmers Insurance, Inc., 954 S.W.2d 496, 501-03 (Mo.App.1997).

. See also, Anglim, 832 S.W.2d at 304-05.

. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 860 (Mo. banc 2001). Interestingly, the St. Louis City Circuit Court was credited with 506 jury trials consuming 1388 days for fiscal year 2000. Assuming twelve person juries, 506 juries required only 6,072 jurors to hear and decide the cases. The average jury trial took 2.74 days or less than 3 trial days. Certainly, that constitutes dedicated service, but that data hardly establishes an “overburdened” status, considering the population of the City of St. Louis was 348,189 (actual) according to the 2000 U.S. Census, www. factfinder.census.gov, U.S. Census Bureau-American FactFinder Portion. If so, the percentage of citizen involvement was less than 2% annually. Noteworthy, the City of St. Louis population remains stable, the 2004 estimate being 332,662 and the 2007 estimate being 350,759.

. Anglim, 832 S.W.2d at 304 ("[T]he trial court may take notice of the congestion of its own docket. In this case, the trial judge is experienced and has served as the presiding judge of his circuit. He was undoubtedly aware of the state of the docket in St. Louis when the motion was heard.”).

.This judge has examined exhibit 30, the January 2004, Report of the Joint Interim Committee on Judicial Resources in Missouri. The exhibit consisting of two face pages, the Table of Contents, page four signature page for members of the Joint Interim Committee on Judicial Resources in Missouri and only three pages of data, i.e., pages 45, 47 and 49, from a 57-page report detailing the allocation of Missouri judicial resources. Page 45 compared the 45 judicial circuits for fiscal year 2003 for "Average Filing per Judge.” The caseload analysis was divided into nine distinct categories and an overall category. The St. Louis City Circuit Court ranked 30th in the overall category of average filings per judge, but first in "Complex CCV” cases and second in "Circuit Civil” cases. The St. Louis City Circuit Court ranked 29, 12, 27, 32, 45, 26 and 3 in other categories. Notably, the 16th Circuit ranked 7th overall, and 3, 9, 1, 2, 15, 21, 42, 25 and 12. Similarly, the 31st Circuit was 1st in overall filings and 2, 5, 5, 4, 6, 13, 1, 23 and 19 in individual categories— certainly emblematic of great service. Likewise, the 19th Circuit, which was first in the "Circuit Civil” category and 13th overall, provided great service. The 23rd Circuit was 4th overall, and the 29th Circuit was 2nd overall. Page 47 listed each circuit’s number of jury trials for fiscal years 1998 through 2003, and page 49 listed each circuit's number of jury *229trial days for fiscal years 1998 through 2003. Admittedly, the St. Louis City Circuit Court was 1st in both categories for the fiscal years 1998 through 2003. Again, this establishes the great service and dedication by the St. Louis judges and jurors to the administration of justice. The information contained in the report omits data on population, filings in each of the nine categories, costs, jury costs, finances and other related information. Logically, mathematically and statistically to deduce from exhibit 30 that the St. Louis City Circuit Court is "overburdened” is hardly persuasive, especially considering its overall standing relative to the other circuits.

. Anglim, 832 S.W.2d at 304.

. Anglim, 832 S.W.2d at 303 ("On appeal, in determining whether the trial court’s ruling amounted to an abuse of discretion, only those facts will be considered that were before the trial court when it ruled on the motion to dismiss, and the evidence will be viewed in a light favorable to the result of the trial court.”); Westbrooke, 12 S.W.3d at 392.

. Being a trial judge for almost 21 years, this jurist’s experience is that live testimony of physicians is a pipedream and nostalgic memory.

. Besse, 721 S.W.2d at 743.

. Anglim, 832 S.W.2d at 304.

. Taylor, 954 S.W.2d at 503 (In a similar circumstance, the Missouri Court of Appeals, Southern District, retained jurisdiction of the case, noting that "We decline to speculate on what a Nevada court would hold under the circumstances of this case.”).

. Calvin, 57 S.W.3d at 860.

. Holliger, 986 S.W.2d at 169-70.

. Westbrooke, 12 S.W.3d at 393.

. Mauer, 998 S.W.2d at 191.

. Id.

. Mauer, 998 S.W.2d at 191 (“... we decline at this point to take the extraordinary measure of directing the tried court to dismiss the action.”); Holliger, 986 S.W.2d at 169 ("While a petition for writ of prohibition may be proper means of obtaining relief from an order denying dismissal on forum non conve-*231niens grounds, the discretionary nature of the trial court’s order portends that a writ rarely will be granted. Prohibition is an extraordinary remedy to prevent exercise of extrajuris-dictional power and is not a writ of right. A remedial writ is not an appropriate remedy to resolve issues which may be addressed through appeal.”).

. Anglim, 832 S.W.2d at 303 ("... if reasonable minds can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”); Mauer, 998 S.W.2d at 188 ("... if reasonable minds can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”).