In Hefferan v. Ethicon Endo-Surgery, Inc., the Sixth Circuit upheld the Southern District of Ohio’s dismissal for forum non conveniens. This case marks the Court’s second decision of this kind in just over a week, having affirmed the Northern District of Ohio’s dismissal for forum non conveniens in Solari v. Goodyear Tire & Rubber Co., which we posted about previously. While that case involved three French plaintiffs residing in France who brought claims against Goodyear U.S., this case involves claims by Brandon Hefferan, an American, and his German wife, both residing in Germany. The Hefferans stated claims for negligence, loss of consortium, and violations of Ohio product-liability law after a surgical stapler manufactured in the United States but used in Germany allegedly malfunctioned during a surgery that Brandon underwent, resulting in twenty follow-up surgeries and severe permanent injuries.

In its decision, the Sixth Circuit engaged in the same three-step forum non conveniens analysis it used in Solari: the court first determines the degree of deference owed to the plaintiff’s choice of forum, then the defendant must establish an adequate alternative forum and show that the plaintiff’s choice of forum is unnecessarily burdensome based on public and private interests.

Here, the Sixth Circuit engaged in a more thorough analysis of the amount of deference given to a plaintiff’s choice of forum than in Solari. In that case, all three plaintiffs were French citizens living in France with no connections to the United States, and the Court easily determined that the foreign plaintiffs’ choice of forum deserved less deference and would be burdensome. Although the Hefferans reside in Germany, Mr. Hefferan is an American with more connections to the United States than any of the plaintiffs in Solari. Nevertheless, the Court employed a “sliding convenience scale” to differentiate between American plaintiffs living in the United States, for whom the choice of forum is presumptively convenient, and American plaintiffs residing in other countries, for whom the presumption of convenience applies with less force.

Next, the Court determined that Ethicon established an adequate alternative forum. Although Germany’s legal system operates differently than that of the United States, those differences “do not reveal an alternative forum that provides a remedy ‘so clearly inadequate or unsatisfactory’ that it is ‘no remedy at all.’” Additionally, although German law does not allow recovery for loss of consortium, the Court found that even if the Hefferans litigated the case in the United States, applying the “most significant relationship” test, the court would apply German law and the Hefferans would not recover for loss of consortium regardless of forum.

Finally, the Sixth Circuit held that the district court’s balancing of public- and private-interest factors was not unreasonable. Private-interest factors include the ease of access to sources of proof, availability of compulsory process, and other practical problems. Contrary to Solari, the Court seemed to give less weight to the private-interest factors. Nevertheless, the Court found that “[r]elative ease of access to sources of proof and the availability of compulsory process for proceedings abroad supports dismissal.” Public-interest factors include the local interest in deciding a local controversy, conflict of laws, and the unfairness of burdening citizens in an unrelated forum with jury duty. While the Sixth Circuit essentially disregarded the district court’s jury duty analysis as redundant, the public-interest factors still weighed in favor of dismissal because of Germany’s “strong interest in deciding a controversy involving a product purchased and used within its borders, especially because the suit will involve the application of its law to determine the parties’ rights and liabilities.”

Ultimately, as in Solari, the Court declined to hear a case when the injury occurred outside the United States and the plaintiffs had little connection to the United States, despite the plaintiff’s status as an American. While these cases are coming to the Court from the vantage points of grants of motions to dismiss (entitled to some deference), they could indicate some reticence on the Court’s part for entangling U.S. courts in resolving largely foreign disputes.