Forum Non Conveniens And The “Nominal Defendant” Exception – David v. Medtronic Inc.

In David v. Medtronic, Inc., 2015 WL 3645254, the Second District Court of Appeal in California recognized a “nominal defendant” exception to the general rule that a moving defendant on motion for forum non conveniens must establish that all defendants are subject to jurisdiction in the proposed alternative forum. What remains unclear from the decision is exactly what or who is a “nominal defendant” for the purpose of the exception?

In California, when a defendant moves to dismiss a multi-defendant action for forum non conveniens, the moving defendant is required to establish that an alternative forum exists in which the action could be brought against all defendants. Thus, the rule has been that a moving defendant seeking to establish an alternative forum is suitable must show that all defendants are subject to jurisdiction in that proposed alternative forum. American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 433. The question posed to the Second District Court of Appeal in David v. Medtronic was whether the presence of a so-called “nominal defendant” could prevent the remaining defendants from obtaining a forum non conveniens dismissal when, in the absence of the nominal defendant, the action should be pursued in alternative forums. The court answered this question, No, concluding the presence of a “nominal defendant” cannot defeat a forum non conveniens dismissal which should otherwise be granted

The Case

David v. Medtronic was a products liability case concerning a medical device approved for use by the FDA in spinal fusion surgeries. Plaintiffs were patients who alleged injuries from implantation of Infuse in off-label uses not approved by the FDA. One plaintiff, David, was a California resident. The other plaintiffs lived in different states. Plaintiffs sued Medtronic, the corporation which sold and manufactured Infuse, and Wyeth, a corporation alleged to have developed and sold a protein used in Infuse to Medtronic. Plaintiffs alleged that Medtronic/ Wyeth were liable because they were aware of the dangers of off-label use of Infuse, but nonetheless widely promoted such use. Plaintiffs also named a doctor alleged to have invented part of Infuse, the so-called “nominal defendant” in the forum non conveniens analysis.

Medtronic/Wyeth sought orders requiring each plaintiff to litigate against them in his or her home state. A smart tactical move – litigating the claims in a number of home states as opposed to litigating them all in California would substantially increase the cost and burden of the litigation on the plaintiffs and their attorneys. Fair, who knows? But, tactically smart, absolutely!

Medtronic/Wyeth filed a (1) a motion to sever each plaintiff’s case from that of the other plaintiffs; (2) a motion to dismiss the case of each plaintiff, except David (the California plaintiff), on the grounds of forum non conveniens; and (3) a motion to transfer venue of David’s case to Sacramento. In order to establish the plaintiffs’ home states were available forums, Medtronic/Wyeth consented to jurisdiction in each plaintiff’s home state and tolled statutes of limitation. But, the defendant doctor did not consent to jurisdiction in the home states. Medtronic/Wyeth made no effort to establish that jurisdiction could be established over the defendant doctor in plaintiff home states thus making them available forums. Instead, they argued the other states were available forums even if they had no jurisdiction over the defendant doctor because he was a “nominal defendant” whose presence should make no difference to the available forum analysis. They proffered evidence the defendant doctor had no involvement in the creation, design, promotion or marketing of Infuse.

In opposition, plaintiffs argued Medtronic/Wyeth had not met their burden to establish that alternative forums existed because they failed to establish that any alternative forum had jurisdiction over all defendants, including the defendant doctor. Significantly, plaintiffs did not make any argument, or introduce any evidence, to establish the doctor was not, in fact, a “nominal defendant”.

Simply put, plaintiffs argued the general rule and Medtronic/Wyeth proffered a “nominal defendant” exception to the rule. Classic showdown – the rule vs. the exception to the rule!

The trial court granted all three Medtronic/Wyeth motions. The court granted a forum non conveniens dismissal, finding that each plaintiff’s home state was an available alternative forum. As to the doctor, whose presence as a defendant would have compelled denial of the motion under the general rule, the court concluded the claims against him were “nominal” and did not preclude forum non-conveniens dismissal.

The Appeal

Plaintiffs appealed, challenging only whether alternative forums existed because, under the general rule, all defendants, including nominal ones, must be subject to jurisdiction in an alternative forum in order for it to be available. Medtronic/Wyeth argued there is an exception when one of the defendants is a nominal defendant. In such a case, Medtronic/Wyeth argued, it is unnecessary to establish jurisdiction over the nominal defendant in the alternative forum in order to obtain a dismissal for forum non conveniens. Again, plaintiffs – the rule vs. Medtronic/Wyeth – the “nominal defendant” exception to the rule!

The Opinion

Citing analogous federal case-law, the Second District agreed with Medtronic/Wyeth, recognizing a “nominal defendant” exception to the general rule that a moving defendant on motion for forum non conveniens must establish that all defendants are subject to jurisdiction in the proposed alternative forum. The court noted that if the general rule were enforced without exception “an enterprising plaintiff could preclude a forum non conveniens dismissal by naming an additional defendant over whom the alternative forum could not exercise jurisdiction”. But, the court also held the trial court erred in its treatment of the nominal defendant. Rather than dismissing the defendant doctor, the trial court should have dismissed the action against  Medtronic/Wyeth on forum non conveniens grounds but severed the action against the “nominal defendant” doctor allowing it to proceed in California. Were it otherwise, the court noted, “the nominal defendant – who may, in fact, be liable – would escape liability on nothing more than the moving defendant’s showing that he is at best only peripherally liable, but is not subject to suit in a more convenient forum for pursuit of the main action.”

The Unanswered Question – Who Or What Is A “Nominal Defendant”?

Conceptually, the David v. Medtronic “nominal defendant” exception makes a good deal of sense. A plaintiff should not be able to address an expected forum non conveniens motion simply by joining a defendant whom he, at the end of the day, does not really intend to proceed against. That is reasonable and, in my view, appropriate. But, the opinion leaves open significant practical questions relating to burdens and proof. Exactly who or what is a “nominal defendant” for the purpose of applying the exception? What is the burden that a defendant must meet to establish another defendant is a “nominal defendant”? What must a plaintiff show to overcome a “nominal defendant” showing and defeat a forum non conveniens motion? The court is largely silent on these topics, noting the issue of whether defendant doctor was a “nominal defendant” was not before it. But, the court noted the following:

Also, the issue of whether Dr. Michelson was, in fact, a nominal defendant is not before us. Although plaintiffs make some argument on this issue on appeal, they made no such argument before the trial court, content to argue only the legal issue that all defendants, including nominal ones, must be subject to jurisdiction in an alternative forum in order for it to be available. More to the point, no one contends that Dr. Michelson is a primary defendant in this case. Medtronic introduced evidence that Dr. Michelson  was not involved in the creation, design, promotion or marketing of Infuse. On appeal, defendants do not argue that Dr. Michelson was directly involved with Infuse, but suggest that Dr. Michelson may have indirectly endorsed or promoted Infuse, in that Medtronic’s website states that Infuse incorporates technology developed by Dr. Michelson. Under certain circumstances, an endorser may, in fact, be liable. (Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 683 [one who endorses a product for economic gain and for the purpose of inducing the public to buy it is liable to a purchaser who acts in reliance on the endorsement and is injured because the product is not as represented].) However, it is apparent that establishing liability against Dr. Michelson on this theory will be something of an uphill battle for plaintiffs and, more importantly, it will be a battle ancillary to the main war of whether Medronic is liable for plaintiffs’ Infuse-related injuries.

What can be drawn from this passage as to what needs to be shown to establish or refute the “nominal defendant” exception is unclear. Should a trial court be able to find a defendant to be “nominal” for forum non conveniens analysis because he is not a “primary defendant” or because establishing liability against that defendant “will be something of an uphill battle for plaintiffs” or “ancillary to the main war” against other defendants? Clearly, such statements are not appropriate or useable evidentiary standards of proof. Nor, I presume, were they intended to be. The issue of what exactly is a “nominal defendant” in forum non conveniens analysis was not before the court in David v. Medtronic.

But, what should be the “nominal defendant” standard? Should the moving defendant have to show the case against the “nominal defendant” is completely frivolous and without any merit? Or without tenable basis? Or without substantial merit? Or lacking in triable issues of fact thus shifting the burden to plaintiff to raise triable issues? Or lacking in a prima facie showing thus shifting the burden to plaintiff to show same? Should the “nominal defendant” burden shift to plaintiff on a simple showing by the moving defendant that but for the presence of the alleged “nominal defendant” forum non conveniens dismissal would otherwise be appropriate? Should a plaintiff be allowed some limited discovery when faced with a “nominal defendant” motion for forum non conveniens to develop evidence to meet that motion?

These questions, unanswered by David v. Medtronic, will surely be fleshed out in cases to come. What is clear from David v. Medtronic is that plaintiffs, in multi-defendant cases where forum non conveniens challenges can be expected, better have solid evidence against possible “nominal defendants” because that evidence will be tested, in some form or fashion, under some yet-to-be-determined standard, at the outset of a case by a now-available “nominal defendant” motion for forum non conveniens!