Louisiana Federal Court Holds Concurs with Defense that Class Action Claims Against Vioxx Manufacturer on Behalf of Foreign Citizens may be Adjudicated Outside the United States
After Merck removed Vioxx from the market in September 2004, thousands of lawsuits were filed in state and federal courts, ultimately leading to centralization by order of the Judicial Panel on Multidistrict Litigation to the Eastern District of Louisiana. These lawsuits included not only class action filings, but 11 lawsuits on behalf of residents of other countries, including Italy and France. In re Vioxx Prods. Liab. Litig., ___ F.Supp.2d ___, 2006 WL 2504353, *1-*2 (E.D.La. August 30, 2006). Defense attorneys moved to dismiss the foreign class actions on grounds of forum non conveniens. Id., at *2. The parties stipulated that the federal court should limit its analysis to Italian and French class actions, and the district court granted the defense motion and dismissed the class action complaints. Id.,
In support of the motion to dismiss, defense attorneys argued that Vioxx had been regulated extensively in Italy and France, and that regulators in both countries “required that certain warnings and packaging information be included.” In re Vioxx, at *2. Also, local physicians had prescribed Vioxx to the Italian and French citizens allegedly injured, and the product had been purchased and used, and the putative class members treated for any resulting injuries, in those countries. Id. Plaintiffs countered that Merck “designed, tested, and manufactured” Vioxx in the United States, and orchestrated worldwide distribution from within the United States. Id., at *3.
To prevail on a forum non conveniens motion, the defense must establish “that an alternative forum exists which is both available and adequate.” In re Vioxx, at *3 (citation omitted). “‘A foreign forum is available when the entire case and all parties can come within the jurisdiction of that forum.'” Id. (citation omitted). The foreign forum need not provide the identical benefits of an American court – a particularly important factor in this case as neither Italy nor France permit class actions. Id., at *4. Rather, the alternative forum must deprive the plaintiff of “all remedies,” id. The federal court held that neither Italy nor France “would completely deprive the Plaintiffs of all remedies,” and observed that “both countries have effective collective action mechanisms that allow groups of plaintiffs who allege similar injuries to file suit together.” Id.
In considering the public and private interest factors of the forum non conveniens test, the district court concluded that “foreign forums would be much more convenient for this litigation.” In re Vioxx, at *5. The facts stressed by defense counsel in support of the motion “directly implicates the private factors” because “American courts do not have easy access to the foreign documents and witnesses relating to these events.” The federal court recognized, and Merck agreed, that relevant issues do exist concerning decisions made in the United States, and that certain documents and witnesses are located in the United States, id., at *6, but this did not overcome the fact that Italy and France have “strong interests in deciding [the issues presented in this lawsuit] at home,” id. The court therefore granted the defense motion to dismiss the foreign class action lawsuits. Id., at *8.
NOTE: Several months after Merck filed its motion to dismiss, plaintiffs sought leave of court to file amended class action complaints on behalf of Italian and French residents, In re Vioxx, at *3, but the district court denied the motion because “[the] requested amendments to their complaints would not affect the Court’s forum non conveniens analysis” thus rendering any amendments futile, id., at *7.