Ninth Circuit Allows Blinded Foreign Patient Suit to Proceed in U.S.

In early April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that a group of eight elderly Mexican plaintiffs can pursue their claims in the United States against Advanced Medical Optics[1] for injuries the plaintiffs suffered as a result of being injected with a contaminated viscoelastic product during cataract surgery.[2] The plaintiffs allege that they contracted endophthalmitis, a bacterial infection of the inner eye, after undergoing cataract surgery in Mexico.  The surgeon had 25 years experience and was a cataract specialist.  All eight plaintiffs were hospitalized; five were completely blinded and three had to have their eyes removed.

The plaintiffs originally brought suit in the Central District of California, claiming that Advanced Medical Optics’ product contained bacteria that causes endophthalmitis, but the district court dismissed the case on forum non conveniens grounds.  The court held that the Mexican courts were an adequate alternative forum because Advanced Medical Optics had agreed to submit to jurisdiction there.  However, when the plaintiffs attempted to bring their suit in Mexico, none of the courts (including the Mexico Supreme Court) were willing to exercise jurisdiction over the case.  Recognizing that the plaintiffs no longer had access to another “available forum,” the Ninth Circuit vacated the earlier dismissal and remanded for further proceedings.

Forum non conveniens is a common law doctrine that allows a court to refuse to hear a case—even when jurisdiction and venue are appropriate—if the forum is not “appropriate” for the defendant.  In Piper Aircraft v. Reyno, the Supreme Court extended this doctrine to include foreign plaintiffs.[3] In deciding whether or not a suit brought by a foreign plaintiff should proceed in the United States, the court usually looks to five factors: (1) the presence of a suitable forum in another country; (2) the plaintiff’s nationality; (3) the relevance of what law would control the case; and (4) the balance of public and private interests.

In balancing these factors, some courts undervalue the interest that the American public has in holding domestic corporations legally accountable, even for injuries to foreign consumers.  While the foreign forum certainly has its own interest in protecting its own citizens—particularly when the injury occurs in that foreign country—the American people also have an interest in holding domestic corporations responsible for illegal and harmful conduct.  Courts have held foreign forums to be “suitable” in a number of questionable circumstances,[4] but if the balance of private and public interests are properly weighed, the Court can still come to a fair conclusion.  “At its core, the doctrine of forum non conveniens is concerned with fairness to the parties.”[5] The Ninth Circuit was right to hold that when the foreign forum is entirely foreclosed, in fact if not law, a prior forum non conveniens dismissal should be re-examined.  The quote from Supreme Court Chief Justice John Marshall, included in the Ninth Circuit case, is fitting: “[e]very right, when withheld, must have a remedy, and every injury its proper redress.”[6]