Missouri Court of Appeals affirms forum non conveniens dismissal where unfairness of Panamanian judicial system was alleged and notes such factors as place of accrual of claim, location of witnesses, and nexus with lawsuit
In the latter part of the year 2000, more than 100 patients received radiation treatments at the Instituto Oncologico Nacional ("National Oncology Institute"or ION) in Panama City, Panama. Radiation overexposure allegedly injured many patients and several died. Almost all of the victims are Panamanian citizens and residents. Several ION employees lost their licenses to practice, and the local courts convicted two of negligent homicide.
Some 112 victims and survivors brought a state court action in St. Louis, Missouri, against Multidata Systems International Corp., Inc. (MSI), a Delaware company with its principal place of business in St. Louis, and three Canadian companies for their role in exposing plaintiffs to defective therapy equipment. The defendants moved to dismiss based on forum non conveniens, however, arguing that Panama would be the more convenient forum.
At an evidentiary hearing, plaintiffs put on Dr. Julio Elias Berrios Herrara (Dr. Berrios), a professor of international law at the University of Panama. He opined (1) that the Panamanian judicial system was corrupt and on the verge of collapse and (2) that some Panamanian judges would be incapable of handling a complex case such as this one. The trial court nevertheless granted the motion and this appeal ensued.
A Missouri Court of Appeals affirms. It rules that the forum non conveniens doctrine permits a judge to decline the exercise of its jurisdiction (1) if the forum is seriously inconvenient to try the case, and (2) if a more convenient forum is available. The following six factors guide the determination: "(1) the place of accrual of the cause of action; (2) the location of witnesses; (3) the residence of the parties; (4) any nexus with the place of suit; (5) the public factor of the convenience to and burden upon the court; and (6) the availability to the plaintiff of another court with jurisdiction over the cause of action affording a forum for the plaintiff's remedy. [Cite.]"
"However, the ... factors are not an exclusive listing of the facts to be considered in deciding whether to apply the doctrine. ... In addition, neither precedent nor its progeny purport to set the respective weight a trial court must accord to any particular factor." [Slip op. 15-16].
Here, plaintiffs maintained that the trial court had mistakenly concluded that Panama has a reliable judicial system. The Court disagrees. "Plaintiffs principally rely on the United States Department of State Report, which states that the Panama judiciary "was subject to corruption and political manipulation.' However, while the trial court was entitled to take this report into consideration, ... the trial court also had discretion to review the other evidence presented."
"Moreover, the trial court was not required to rely on the conclusory statements of Dr. Berrios. ... The trial court did not abuse its discretion in relying instead on ... two practicing attorneys in Panama with connections to the judiciary, who both testified that Panama's judicial system is not corrupt."
"Although [one of them] stated that some of the judges are not experienced and may be subject to political influence, the trial court could have given less credit to this testimony in light of his contradictory testimony in affidavits filed in prior United States cases where he stated Panama is an adequate forum as well as Panama's codified requirements for qualification and process for sanctioning judges who are found to be corrupt. Plaintiffs' ... point is denied." [Slip op. 25-26]
The plaintiffs also contended that forum non conveniens should not apply in this case because defendants failed to show that trying the case in Missouri would be substantially more inconvenient than trying the case in Panama. Applying the above six factors, the Court makes two points.
First, under Missouri law, a cause of action accrues when, and originates where, plaintiff had allegedly sustained damages. Here, plaintiffs allege that they had been injured in Panama.
Second, as for the location of witnesses, even if the Missouri court were to bifurcate the suit, its trial would demand the attendance of a number of witness from Panama, including the ION employees. Moreover, the court could not join ION employees as third part defendants because they lack the necessary minimum contacts with Missouri. The inability to implead responsible third parties is an important factor supporting dismissal.
Third, most of the involved parties live in Panama. Only Multidata is located in Missouri. The Missouri Supreme Court has stated that the factor of residence of one defendant in Missouri is not inevitably controlling when there are other non-resident defendants.
Fourth, the Court addresses the nexus between MSI and the place of suit. While MSI is located in Missouri, the trial court did not abuse its discretion when it considered its lone presence not controlling. Fifth, the Court points to the convenience to, and burden upon, the court. Here, the procedural onus on the court below would be heavy. For example, most of those involved speak Spanish, the medical records are in Spanish, and the Court will surely have to apply Panamanian substantive law. Sixth, and finally, there is an adequate and available forum in Panama.
Citation: Chandler v. Multidata Systems Int’l Corp., Inc., No. ED84192 (Ct. App. Mo., May 10, 2005).
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