SHILEY INCORPORATED v. SUPERIOR COURT

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Court of Appeal, Fourth District, Division 3, California.

SHILEY INCORPORATED et al., Petitioners, v. SUPERIOR COURT of California, County of Orange, Respondent;

Mellet STANGVIK, a Minor, etc., et al., Real Parties in Interest. SHILEY INCORPORATED et al., Petitioners, v. SUPERIOR COURT of California, County of Orange, Respondent; Jenny Mikaela Marie Therese Birgitta KARLSSON, a Minor, etc., et al., Real Parties in Interest.

Nos. G006371, G006373.

Decided: August 24, 1988

Palmieri, Tyler, Wiener, Wilhelm & Waldron and Frank C. Rothrock and Gary C. Weisberg, Newport Beach, for petitioners. No appearance for respondent. Robins, Zelle, Larson & Kaplan and Joseph L. Dunn, Newport Beach, for real parties in interest.

OPINION

The superior court denied motions by Shiley Incorporated and Pfizer Inc. to dismiss or stay two product liability/wrongful death actions based on the doctrine of forum non conveniens.   We disagree with the line of recent appellate authority which compelled the rulings and direct the trial court to reconsider in light of this opinion.

I

Shiley, incorporated in California, and Pfizer, a Delaware corporation with its principal place of business in New York, manufacture heart valves for worldwide distribution.   Two such valves were sold by Shiley's Scandinavian marketing arm and implanted in Scandinavian patients, one Norwegian and the other Swedish.   The patients were treated only in their home countries, and both died there in 1986.   Heirs of the decedents retained the same California counsel who filed wrongful death actions in this state the following year.   Alleging the valves were defective, plaintiffs in both cases sought damages based on negligence, strict liability, breach of warranty, fraud, and loss of consortium.

Defendants responded by filing motions under Code of Civil Procedure section 410.30 to dismiss or stay the suits on forum non conveniens grounds.   They contended the matters should be pursued in Sweden and Norway, where the plaintiffs reside, the valves were marketed, decedents' medical care was provided, the alleged fraudulent misrepresentations by Scandinavian medical personnel were made, and much pertinent evidence reposes.

Defendants included declarations of Norwegian and Swedish counsel concerning the plaintiffs' legal rights in their home countries.   They stated Norwegian and Swedish law would be applied in their respective forums.   Both countries recognize fraud causes of action;  and recovery might also be possible under a theory similar to strict liability in each, e.g., for defects of a material or structural nature.   Punitive damages are not available in either jurisdiction, but in Norway special damages (the translation from the Norwegian is “restoration”) are occasionally permitted if plaintiff can prove “gross negligence or intent on behalf of the defendant.”   There was no indication plaintiffs' actions would be barred by any statute of limitations in either foreign forum.   Finally, defendants offered to stipulate to submit to the jurisdiction of the appropriate courts, comply with all discovery orders, make ten employees designated by plaintiffs available to testify at no cost to plaintiffs, and satisfy any judgments entered against them.

Plaintiffs also retained Norwegian and Swedish attorneys.   They submitted counter declarations disputing several assertions of the defense experts on local law and generally painting a less rosy picture of Scandinavian tort remedies.

Superior Court Judge Gary L. Taylor found defendants' arguments persuasive, but felt compelled to deny the motions based on Corrigan v. Bjork Shiley Corp. (1986) 182 Cal.App.3d 166, 227 Cal.Rptr. 247:  “[I]t can't be the [role] of this court to look at the Corrigan case or to look at the federal rule and say which one seems like the best rule.  [¶] If I [were] to decide the Corrigan case, I might likely decide it just the opposite of how it was decided, if I had the power to do that.”   Judge Taylor correctly determined he was without that option in light of Corrigan.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

Defendants then sought extraordinary relief in this court, and we issued alternative writs and consolidated the petitions for hearing.1  We now conclude Corrigan and several of its antecedents represent an unwarranted digression from sound principles of the law of forum non conveniens and direct the trial court to reconsider in light of the discussion following.

II

 California's forum non conveniens doctrine is rooted in the Fifth and Fourteenth Amendments to the United States Constitution.   It was introduced in this state by judicial decision based on federal case law (Price v. Atchison, T. & S.F. Ry. Co. (1954) 42 Cal.2d 577, 580–583, 268 P.2d 457;  see also Judicial Council com., 14 West's Ann.Code Civ.Proc., § 410.30 (1973 ed.) p. 490) and subsequently codified.2

The leading federal authority on the subject is Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419, a case factually similar to this one.  (See also In re Union Carbide Corp. Gas Plant Disaster (2d Cir.1987) 809 F.2d 195.)   In Piper, Scottish heirs sued American aircraft and propeller manufacturers in California state court for the wrongful deaths of the Scottish victims of a plane crash in that country.   The cause was first removed to federal court in California and then transferred to a district court in Pennsylvania.   There, defendants moved to dismiss the action on forum non conveniens grounds.   The United States Supreme Court reversed the court of appeals and reinstated the district court order granting the motion.

The court emphasized four critical points.   First, a foreign plaintiff's choice of forum is entitled to less deference than that of a resident plaintiff.  (Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 255, 102 S.Ct. at p. 265.)   The reason is simple:  “[C]itizenship and residence are proxies for convenience.”  (Id., at p. 257, fn. 24, 102 S.Ct. at p. 266, fn. 24.)   Thus, a local plaintiff's choice of a home forum is presumed to be reasonable and convenient.   The presumption logically does not exist for a foreign plaintiff, however;  and to hold otherwise would reduce the doctrine of forum non conveniens to a “guarantee that the plaintiff will be able to select the law that will govern the case.”  (Ibid.)

Second, the court bluntly stated, “[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.”  (Id., at p. 247, 102 S.Ct. at p. 261.)   The rationale is this:  “[T]he central focus of the forum non conveniens inquiry is convenience.”  (Id., at p. 248, 102 S.Ct. at p. 262.)   If undue weight is placed on the respective merits and demerits of the substantive law to be applied, the inconvenience factor will generally be overridden by a choice of forum offering plaintiff a greater potential recovery.  (Ibid.)  Not only would the judiciary's “flexibility” in these matters be reduced, but courts would be forced to engage in frequently onerous choice of law analyses, i.e., the decision to proceed or dismiss would turn not on the issue of convenience of the local forum, but on that forum's speculation as to the quality and quantity of a plaintiff's remedies at the place where the injury occurred.

The court cautiously stopped short of eliminating the choice of law factor entirely, however:  “We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry․  [I]f the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight;  the district court may conclude that dismissal would not be in the interests of justice.   In these cases, however, the remedies that would be provided by the Scottish courts do not fall within this category.   Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.”  (Id., at pp. 254–255, fn. omitted, 102 S.Ct. at pp. 265.)

Next, while the Piper court recognized the legitimate concern of Americans to ensure the design and assembly of safe products and the “additional deterrence [that] might be obtained if [the defendants] were tried in the United States, where they could be sued on the basis of both negligence and strict liability” (id., at p. 260, 102 S.Ct. at p. 268), the court nevertheless concluded the deterrence factor should not be overstated:  “[T]he incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant.   The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.”  (Id., at pp. 260–261, 102 S.Ct. at pp. 268.)

Finally, the court warned a rule permitting foreign plaintiffs to proceed with litigation in the United States merely because a more favorable recovery was likely would also be highly detrimental to our judicial system:  “The American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive.   The flow of litigation into the United States would increase and further congest already crowded courts.”  (Id., at p. 252, 102 S.Ct. at p. 264, fns. omitted.)

The court wound up by examining what it termed “public and private interest factors” (id., at p. 257, 102 S.Ct. at p. 267) and determined they overwhelmingly favored trial in the foreign jurisdiction.   Private interests included the presence of most physical evidence and percipient witnesses in Scotland, as well as the inability of the American defendants to cross-complain here against “potential” foreign tortfeasors, e.g., those who owned and operated the plane.  (Id., at pp. 258–259, 102 S.Ct. at pp. 267.)   That latter deficit “clearly supported” the decision to proceed in Scotland:  Even though the American defendants could initiate a separate indemnity action against those tortfeasors in Scotland, “[i]t would be far more convenient, [ ] to resolve all claims in one trial.”  (Id., at p. 259, 102 S.Ct. at p. 267.)

Moving to public interest factors, the court's substantive law analysis did not extend beyond the bland observation that it did not matter which law would be applied in the respective forums because “all other public interest factors favored trial in Scotland.”  (Id., at p. 260, 102 S.Ct. at p. 268.)   First, in deference to the strong policy to have “localized controversies decided at home” (Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055), the court acknowledged Scotland's overwhelming interest in litigating the rights of its own citizens for an accident occurring in its own airspace.   The only American factor was the previously mentioned deterrence of the manufacture of defective products.  (Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 260, 102 S.Ct. at p. 268.)   But, concluded the court, this interest was “simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.”  (Id., at p. 261, 102 S.Ct. at p. 268.)

Piper represents a thoughtful attempt to strike a balance between conflicting policy interests of various jurisdictions and the need to fairly apportion limited judicial resources.   Its analysis, however, does not include a parochial bias factor, as reflected in the promotion of one forum over another based solely on the perceived qualities of the former's tort jurisprudence.   Nevertheless, several Courts of Appeal have rejected Piper.  (Corrigan v. Bjork Shiley Corp., supra, 182 Cal.App.3d 166, 227 Cal.Rptr. 247;  Holmes v. Syntex Laboratories, Inc. (1987) 156 Cal.App.3d 372, 202 Cal.Rptr. 773.)   We believe those decisions invite forum shopping, needlessly burden California taxpayers and litigants, and may encourage the flight of high technology manufacturers to friendlier jurisdictions.   In our view, California's adherence to a national forum non conveniens policy under the sound leadership of the United States Supreme Court is a far preferable course.

III

The British plaintiffs in Holmes sued in California for injuries resulting from ingestion of oral contraceptives manufactured by a California pharmaceutical company.   The superior court dismissed the actions on forum non conveniens grounds.   The Court of Appeal reversed, finding a British forum “unsuitable” because British law did not recognize a cause of action for strict products liability.

The Holmes court flatly declined to follow Piper, labeling it a “depart [ure] from California law ․ on [ ] two crucial points” (id., at p. 382, 202 Cal.Rptr. 773), i.e., the weight to be given to a foreign plaintiff's choice of forum and the significance of the alternate forum's law being less favorable to the plaintiff.  (Id., at p. 381, 202 Cal.Rptr. 773.)   In contrast to federal law, the Holmes panel decided these two factors were to be given great deference in the balancing process in this state.

But Holmes' conclusion as to the significance of a foreign plaintiff's choice of forum must be viewed as suspect in light of Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 126 Cal.Rptr. 811, 544 P.2d 947, an opinion it cites but does not attempt to reconcile or distinguish.   There, the California Supreme Court determined a plaintiff's choice of forum is not entitled to any particular deference where the plaintiff is foreign or only a nominal resident, e.g., a California guardian or administrator appointed for the limited purpose of suing on behalf of out-of-state residents.  (Id., at p. 859, 126 Cal.Rptr. 811, 544 P.2d 947, fn. 6.)

With respect to the choice of law issue, the Holmes court determined the shortcomings of British law, as evidenced by its failure to recognize a cause of action for strict liability, “constitute[d] denial of a ‘suitable’ alternative forum under California law (though not, as required under federal law, a denial of ‘any’ remedy under Piper) and weigh[ed] heavily against a forum non conveniens dismissal.”  (Id., 156 Cal.App.3d at p. 387, 202 Cal.Rptr. 773.)   The court concluded with an attempt to deflect the inevitable, and arguably justifiable, charge of jingoism:  “Recognition of this problem is not provincialism, but plain common sense.”  (Ibid., fn. omitted.)

In support of its conclusion on the suitability issue, Holmes relied upon several other Court of Appeal decisions.  (E.g., Dendy v. MGM Grand Hotels, Inc. (1982) 137 Cal.App.3d 457, 187 Cal.Rptr. 95;  Hemmelgarn v. Boeing Co. (1980) 106 Cal.App.3d 576, 165 Cal.Rptr. 190;  International Harvester Co. v. Superior Court (1979) 95 Cal.App.3d 652, 157 Cal.Rptr. 324;  Brown v. Clorox Co. (1976) 56 Cal.App.3d 306, 128 Cal.Rptr. 385;  Chavarria v. Superior Court (1974) 40 Cal.App.3d 1073, 115 Cal.Rptr. 549;  Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105, 90 Cal.Rptr. 461.)   These authorities do not persuade us of the correctness of Holmes' result, however;  for all of them, save Dendy, predate the Piper decision.   And, apart from Brown (see fn. 5, infra), all are more consistent with Piper than Holmes.3

Corrigan v. Bjork Shiley Corp., supra, 182 Cal.App.3d 166, 227 Cal.Rptr. 247, the opinion which compelled the trial court's decision, appeared two years after Holmes.  Corrigan is virtually indistinguishable from the present cases.   There, Australian plaintiffs sued petitioning defendant Shiley in California for wrongful death, also allegedly caused by a defective heart valve.   Plaintiffs asserted the same theories posed in the complaints here.   Shiley's forum non conveniens motion to stay the action was granted in the trial court, but the Court of Appeal reversed.

The Corrigan panel noted the two major factors emphasized in the Judicial Council's comment to Code of Civil Procedure section 410.30.   The first is, the plaintiff's selection of a forum is to be given great deference.  (Id., at p. 176, 227 Cal.Rptr. 247.)   But that comment was written before Piper and Archibald appeared, and Corrigan did go on to recognize that a foreign plaintiff's choice of a California forum was actually entitled to very little weight.  (Ibid.;  Archibald v. Cinerama Hotels, supra, 15 Cal.3d 853, 126 Cal.Rptr. 811, 544 P.2d 947;  cf. Holmes v. Syntex Laboratories, Inc., supra, 156 Cal.App.3d at p. 379, 202 Cal.Rptr. 773.)

 The second major factor in the Judicial Council comment is that dismissal of a California lawsuit should not be ordered unless the plaintiff has “ ‘a “suitable” alternative forum.’ ”  (Corrigan v. Bjork Shiley Corp., supra, 182 Cal.App.3d at p. 176, 227 Cal.Rptr. 247.)   In evaluating this factor, the Corrigan opinion looked to the choice of law question and the defendant's relationship with California.   The latter issue was resolved in favor of the plaintiffs simply because the defendant was incorporated in California and manufactured the allegedly defective product here.  (Id., at pp. 180–182, 227 Cal.Rptr. 247.)   We disagree on this point, but there is no reason to consider the Corrigan analysis at length.   A subsequent development has severely eroded the parties' relationship to the forum as a basis for retaining California jurisdiction in cases of this sort.

Effective September 22, 1986, only months after Corrigan appeared, the Legislature amended Code of Civil Procedure section 410.30 in an urgency measure to add, “The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.” 4  It would appear a defendant's choice to incorporate or do business in this state, without more, is no longer a significant factor in the balancing process.5  As the Court of Appeal explained in Credit Lyonnais Bank Nederland v. Manatt, Phelps (1988) 202 Cal.App.3d 1424, 249 Cal.Rptr. 559, the legislative intent of the amendment was “to broaden, rather than limit, inconvenient forum stays or dismissals in noncontract cases” (id., at p. 1432, 249 Cal.Rptr. 559) and that the new rule meant “ ‘the application [of forum non conveniens] should turn on consideration of justice, fairness and convenience and not solely on the residence of one of the parties.’ ”  (Id., at p. 1434, 249 Cal.Rptr. 559.)

In contrast to Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 261, 102 S.Ct. at p. 268, where the justices found the minimal “incremental” value in forcing manufacturers to be amenable to suit in the United States, the Corrigan court placed heavy reliance on the deterrence factor and on California's policy to regulate products manufactured in this state by means of the strict liability doctrine.   We generally disagree with Corrigan on this question also, preferring Piper 's incremental deterrence analysis;  although we do concede California's public policy might be heavily implicated, and even determinative, in certain circumstances not present in this case.   For example, where a product is manufactured or marketed in direct violation of California substantive law or strong public policy, e.g., LSD, letter bombs, and counterfeit copies of patented products, entirely different considerations would apply.

In contrast to its holding, the Corrigan court outwardly professed a reluctance to wholly embrace Holmes on the substantive law issue:  “Under California law, the purpose of comparing the differences in conflict of law rules and the differences in substantive law which will be applied, once the choice of law has been made in each alternative forum, is not simply to decide which forum would provide the most advantageous law from the viewpoint of the plaintiff.   To the extent Holmes explicitly or implicitly directs otherwise, we decline to follow it.”  (Corrigan v. Bjork Shiley Corp., supra, 182 Cal.App.3d at p. 178, 227 Cal.Rptr. 247.)   So do we.

 Moreover, the Corrigan opinion added, California's “choice of law doctrine reveals a respect for the law of foreign jurisdictions which does not seek to weigh the worth of the social policy reflected in the laws of the respective forums, but instead focuses on which forum's governmental interest will be the more impaired if its law is not applied.”  (Id., at p. 179, 227 Cal.Rptr. 247.)   We also concur with these words, but not with Corrigan's application of them to its own facts.

 Having made these observations, the Corrigan court proceeded to march off in the opposite direction.   What followed was virtually an affirmation of the notion that the alternative forum's failure to recognize a particular remedy or element of damage is the equivalent of the denial of a suitable forum.   For example, in language displaying the very parochialism the court had earlier decried, California's tort system was praised as one providing “full compensation” (id., at p. 180, 227 Cal.Rptr. 247) via strict liability,6 while that of Australia was described as “circumscribed” (id., at p. 179, 227 Cal.Rptr. 247).

Given the practical difficulties apparent when the other side of the coin is examined, we believe both Holmes and Corrigan paid too much homage to the choice of law question.   Modern litigation in this state features burgeoning public expense, inadequate and crowded facilities, an overworked judiciary, and, in our larger counties, routine five-year delays in bringing most tort actions to trial.   Encouragement of the importation of foreign causes of action unfairly burdens taxpayers and other litigants.   It may also threaten to involuntarily exile some of our leading businesses and high technology manufacturers to jurisdictions where they will not generally be required to defend lawsuits involving extra-territorial injuries.   Shiley and Pfizer have no doubt considered the advantages of a possible move of their manufacturing operations to Minnesota, for example.  (See Bergquist v. Medtronic, Inc. (Minn.1986) 379 N.W.2d 508 and Fraizer v. St. Jude Medical, Inc. (D.C.Minn.1985) 609 F.Supp. 1129.)

Finally, the Corrigan and Holmes results unnecessarily depart from the Supreme Court's Piper analysis and find no support in the roots of the forum non conveniens doctrine.   The Judicial Council comment to Code of Civil Procedure section 410.30 states in part:  “[T]he action will not be dismissed unless a suitable alternative forum is available to the plaintiff [citations].  Because of [this] factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states.   The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state [citations].”  (Judicial Council com., 14 West's Ann.Code Civ.Proc., § 410.30 (1973 ed.) pp. 492–493.)  “Suitable” does not mean “identical.”   An alternative forum must be open to the plaintiff, and the defendant must be amenable to jurisdiction.   But we have discovered nothing in the legislative history to imply that plaintiffs, irrespective of their nationality, residence, or situs of the alleged injury, are automatically entitled to the benefits of California law and its legal system.

Earlier Court of Appeal opinions support our conclusion.   In Great Northern Ry. Co. v. Superior Court, supra, 12 Cal.App.3d 105, 90 Cal.Rptr. 461, a Washington resident sued in California for her husband's death in a Washington railroad accident.   The defendant railroad did business in California and was properly served here but moved to dismiss the action on forum non conveniens grounds.   The trial court denied the motion.   The Court of Appeal issued a peremptory writ, noting the plaintiff's desire to retain California counsel was not a proper factor to consider “[n]or may the probability, if such exists, that courts and juries in large metropolitan areas will be more generous in their awards․”  (Id., at p. 112, 90 Cal.Rptr. 461.)

Division One of this court reached the same conclusion a decade later.   In Hemmelgarn v. Boeing Co., supra, 106 Cal.App.3d 576, 165 Cal.Rptr. 190, the Canadian heirs of Canadian victims of a plane crash in that country sued in California, where several of the manufacturers of component parts did business.   The trial court dismissed the action here;  and the Court of Appeal affirmed, observing that other key parts manufacturers were beyond the jurisdiction of California courts and, without an ability to cross-complain against those potential tortfeasors, the California defendants would lose the opportunity for “complete apportionment of liability among all defendants responsible for the accident.”  (Id., at p. 589, 165 Cal.Rptr. 190.)

The Hemmelgarn court also acknowledged, in words particularly apt here, “the elements of damages which may be considered in Canada will necessarily result in lower damages there․  Thus, when these actions are sent to Canada, California policy will be thwarted[,] for a California [] corporate defendant will not be held accountable to California standards for a defective product designed and produced by it in California and used in aircraft in which many California citizens fly.”  (Id., at pp. 586–587, 165 Cal.Rptr. 190.)   Nevertheless, concluded the court, since policy trade-offs are inherent in the forum non conveniens question, the status of the plaintiffs as nonresidents weighs heavily in the decision to grant the motion.

We agree.   Although there may be advantages for the plaintiffs in bringing suit here, and notwithstanding California's regulatory interest in the efficacy of sophisticated medical devices manufactured in this state, the decedents' home countries have the strongest interest in entertaining the present disputes.   The devices were sold, implanted, and allegedly malfunctioned in Scandinavia.   Everyone involved in those activities, as far as the present record discloses, is Scandinavian.   California's interest pales by comparison.  (Piper Aircraft Co. v. Reyno, supra, 454 U.S. at pp. 260–261, 102 S.Ct. at pp. 268.)

Nor can we ignore the existence of potential Scandinavian tortfeasors, i.e., medical personnel who may have mishandled or improperly packaged the valves and who may have been the source of false representations to plaintiffs' decedents.   They would be unlikely to be amenable to a cross-complaint in this country (see, e.g., Asahi Metal Industry Co., Ltd. v. Superior Court (1987) 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92);  and any Scandinavian witnesses would not, as a practical matter, be subject to process.   At this embryonic stage in the proceedings, it is not possible to know whether a complete and satisfactory resolution of these disputes could ever be achieved in this forum;  but they almost certainly could in Scandinavia.  (See Piper Aircraft Co. v. Reyno, supra, 454 U.S. at p. 258, 102 S.Ct. at p. 267;  Hemmelgarn v. Boeing Co., supra, 106 Cal.App.3d at p. 589, 165 Cal.Rptr. 190.)

It is common knowledge that Norway and Sweden are highly advanced parliamentary democracies with competent judicial systems representative of western legal traditions.   If required to litigate in their home forums, the Scandinavian plaintiffs will merely be afforded the same brand of justice provided their countrymen in suits against domestic enterprises.   In fact, because the trial court can condition abatement of the action on a number of equitable factors (see Code Civ.Proc., § 410.30, subd. (a);  In re Union Carbide Corp. Gas Plant Disaster, supra, 809 F.2d at pp. 203–206), including the stipulations offered by Shiley and Pfizer, plaintiffs will actually receive more favorable treatment than their compatriots.

The recent opinion of Credit Lyonnais Bank Nederland v. Manatt, Phelps, supra, 202 Cal.App.3d 1424, 249 Cal.Rptr. 559 supports our determination.   There, a Dutch bank filed a legal malpractice action in California against its London and California attorneys for failure to perfect a security interest in California real property.   The California defendants cross-complained against their London colleagues for indemnity.   The British barristers sought dismissal on forum non conveniens grounds.   California counsel opposed the motion, arguing as residents of this state seeking affirmative relief in a cross-complaint, the choice of a local forum should not be disturbed.

The court rejected the notion for several reasons which are pertinent to the analysis in this case.   First, as noted above, the recent amendment to Code of Civil Procedure section 410.30 reflects the Legislature's intention “that courts should []hereafter assign less weight to the factor of plaintiff's California residence․”  (Id., at p. 1434, 249 Cal.Rptr. 559.)   Second, the resident lawyers' claims were cognizable in English courts.   Moreover, “[w]hile [forcing the California lawyers to litigate in England] may be a burden it is also one that is a logical consequence of a voluntary act.  [The California law firm] willingly accepted the legal employment offered by [the British cross-defendants] to provide assistance in ․ what was essentially an English financial transaction.”  (Id., at p. 1438, 249 Cal.Rptr. 559.)   The Scandinavian plaintiffs are in much the same position, notwithstanding the allegation of fraud in the complaints on file in these actions:  At a minimum, their decedents must have consented to implantation of heart valves in their home countries.

We conclude with a final observation.   Shiley and Pfizer are willing to stipulate to certain conditions should the court grant their motions.   Abatement of the actions, rather than dismissal, will ensure the court retains the power to enforce any stipulations ultimately achieved and that the plaintiffs do, in fact, have alternative forums for resolution of these matters.  (Cf. In re Union Carbide Corp. Gas Plant Disaster, supra, 809 F.2d at p. 205.)   We offer no opinion at this time as to the reasonableness of the proposed stipulations, however.   As the trial court determined Corrigan compelled denial of the motions, there was no reason to evaluate the defense offers.   Upon reflection, the court may find them inadequate to the purpose, in which case it should include any other conditions it deems just.  (Code Civ.Proc., § 410.30;  cf. In re Union Carbide Corp. Gas Plant Disaster, supra, 809 F.2d at pp. 205–206.)   Should those conditions prove unacceptable to the defendants, the court will, of course, simply deny the motions.

The alternative writs are discharged.   Let peremptory writs issue directing the trial court to reconsider the respective motions for a stay of all proceedings on appropriate terms and conditions.   The parties shall bear their own costs.

FOOTNOTES

1.   Plaintiffs maintain the petitions should be rejected because defendants made general appearances while the forum non conveniens motions were pending to oppose plaintiffs' request to permit an attorney's representation pro hac vice.  (Code Civ.Proc., §§ 418.10, 410.30, subd. (c).)  The record reflects those motions were continued twice at plaintiffs' insistence, however, and the stipulated orders for the continuances preserved defendants' remedies under Code of Civil Procedure section 418.10.   Accordingly, plaintiffs' contention on this score is without merit.

2.   Code of Civil Procedure section 410.30, subdivision (a) provides, “[W]hen a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

3.   For example, a forum non conveniens stay was affirmed in Chavarria because the court determined the alternative forum would apply California law and it made no sense to permit nonresidents to litigate the dispute in this state.  International Harvester involved only an effort to stay prosecution of a cross-complaint in a wrongful death action where the main action had been litigated in California and settled while the appeal was pending.   The court determined the “burden upon the California judicial system incident to continuation of the proceedings on the cross-complaint [was] not unfair or disproportionate” under the circumstances.   (International Harvester Co. v. Superior Court, supra, 95 Cal.App.3d at p. 661, 157 Cal.Rptr. 324.)   A forum non conveniens stay was also affirmed in Dendy.   That case involved a hotel fire in Nevada with hundreds of victims, not a product manufactured in California.   And the court had no occasion to discuss Piper.   More of the other cases cited in Holmes anon.

4.   This addition to the section, as well as a paragraph declaring that actions “arising out of, or relating to, a contract, agreement, or undertaking to which Section 410.40 applies [provision relating to the monetary value of the contract],” is effective only until January 1, 1992.   Unless the Legislature acts before that date, the statute will revert to its pre-September 1986 wording.

5.   Brown v. Clorox Co., supra, 56 Cal.App.3d 306, 128 Cal.Rptr. 385, a pre-Piper decision, is particularly suspect in light of the statutory change.   There, a minor resident of Washington was injured at home when he swallowed drain cleaner manufactured by the Indiana subsidiary of a firm which was incorporated in Ohio when the accident occurred but subsequently reincorporated in California.After noting only that the plaintiff was willing to undertake the burden of bringing his witnesses to California and this state recognized punitive damages while Washington did not, the court based its decision solely on defendant's residency in California:  “Basically, we have here a plaintiff filing a lawsuit in this state against companies incorporated in this state who maintain their principal place of business here, and, it is claimed, so conduct themselves in this state so as to cause injury to others in another state.   Under these circumstances, we conclude that it was an abuse of discretion to stay these proceedings on the ground of forum non conveniens.”  (Id., at pp. 313–314, 128 Cal.Rptr. 385.)

6.   It is quite possible the strict liability doctrine would no longer be available in these cases.   In Brown v. Superior Court (1988) 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 410, the California Supreme Court may have eliminated most, if not all, the advantages the Scandinavian plaintiffs would obtain in a California forum.   There, the court determined the disadvantages of inhibiting significant medical research outweighed the competing policy to regulate California manufacturers of prescription drugs by imposing strict liability for defective products:  “If drug manufacturers were subject to strict liability, they might be reluctant to undertake research programs to develop some pharmaceuticals that would prove beneficial or to distribute others that are available to be marketed, because of the fear of large adverse monetary judgments.   Further, the additional expense of insuring against such liability—assuming insurance would be available—and of research programs to reveal possible dangers not detectable by available scientific methods could place the cost of medication beyond the reach of those who need it most.”  (Id., at p. 1063, 245 Cal.Rptr. 412, 751 P.2d 410.)   This policy may also be applied in the case of manufacturers of advanced medical gadgets, such as prosthetic heart devices and their components.   Accordingly, to the extent the policy to regulate has given way to the desire to promote a healthy climate for and advances in medical research, Corrigan's analysis may have been turned on its head.   Whether the same applies to the products involved here is not presently before us, however;  and we need express no opinion on the question because we disagree with the Corrigan result in any event.

CROSBY, Associate Justice.

SONENSHINE and SEYMOUR,* JJ., concur.

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