Pantuso v. Wright Med. Tech. Inc.

485 S.W.3d 883

Terry Pantuso

v.Wright Medical Technology Inc., et al.

No. W2014-02315-COA-R9-CV.

Court of Appeals of Tennessee, AT JACKSON.

August 11, 2015 Session

Filed August 31, 2015

Application for Permission to Appeal Denied by Supreme Court January 14, 2016

George T. Lewis, III, and Quinn N. Carlson, Memphis, Tennessee, for the appellants, Wright Medical Group, Inc., and Wright Medical Technology, Inc.

Michael O. Fawaz, Royal Oak, MI, for the appellants, Wright Medical Group, Inc., and Wright Medical Technology, Inc., Pro Hac Vice.

R. Christopher Gilreath, Memphis, Tennessee, and Michael Jerome Warshauer, Atlanta, Georgia, for the appellee, Terry Pantuso.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which BRANDON O. GIBSON, J., and KENNY ARMSTRONG, J., joined.

OPINION

J. STEVEN STAFFORD, P.J., W.S.

In this interlocutory appeal, the defendants appeal the trial court's denial of their motion to dismiss a product liability lawsuit on the ground of forum non conveniens . Discerning no abuse of discretion by the trial court, we affirm.

Background

On April 7, 2007, Plaintiff/Appellee Terry Pantuso filed a complaint alleging product liability against Defendants/Appellants Wright Medical Technology, Inc., ("Wright Medical Technology") and its wholly owned subsidiary, Wright Medical Group, Inc. ("Wright Medical Group," and together with Wright Medical Technology, "Wright Medical") in the Shelby County Circuit Court. Mr. Pantuso is a resident of Utah. Wright Medical Technology is a Delaware corporation with its principal place of business in Memphis, Tennessee and is registered to do business in both Tennessee and Utah. Wright Medical Group is a Delaware corporation with its principal place of business in Memphis, Tennessee and is registered to do business in Tennessee.

According to the complaint, Wright Medical was the designer, manufacturer, and marketer of a hip replacement system, known as the Profemur hip device, that was surgically implanted into the left and right sides of Mr. Pantuso's body in 2007 in a Utah hospital. According to Mr. Pantuso's complaint, the Profemur hip device was chosen by Mr. Pantuso's physician due to the device's marketing as the appropriate hip replacement system for active individuals. Despite this marketing, Mr. Pantuso alleged that Wright Medical had knowledge that the Profemur hip device was experiencing higher-than-anticipated rates of failure due to fractures of the modular neck in the device.

On April 12, 2013, a component of Mr. Pantuso's left-side Profemur hip replacement device allegedly "suddenly and catastrophically failed." Accordingly, on April 15, 2013, the Profemur hip device was surgically removed from Mr. Pantuso's left side and replaced with a different artificial hip device, manufactured by a different company. Although Mr. Pantuso retains the Profemur device in his right hip, he alleged that the risk of failure prevents him from engaging in the levels of activity that he otherwise could and should have been capable of enjoying, given the marketing of the device by Wright Medical. Mr. Pantuso requested both compensatory and punitive damages resulting from the harm he suffered from Wright Medical's manufacture, design, and marketing of the Profemur hip device.

On April 17, 2014, Wright Medical filed a motion to dismiss the complaint based upon the doctrine of forum non conveniens . Therein, Wright Medical Technology admitted that it was headquartered in Memphis, Tennessee. Wright Medical argued, however, that the appropriate forum was in Utah, where Mr. Pantuso lived and received all medical treatment related to his hip replacements. According to Wright Medical, it would be prejudiced by proceeding in Tennessee because it would have "no access to any third-party witness or any third-party documents because they are all in Utah, beyond the subpoena power of [Tennessee] Court[s]." Wright Medical also alleged that while many of its employees were located in Tennessee, Mr. Pantuso "would have access to Wright Medical employees and Wright Medical documents under ordinary rules of civil procedure." Wright Medical further asserted that because Utah law applied to the cause of action, to hear the action in Tennessee state court would cause a substantial burden on the Shelby County courts, which Wright Medical argued are among the most overburdened courts in Tennessee. Accordingly, Wright Medical argued that Utah provided an appropriate forum in which Mr. Pantuso could prosecute his case.

On May 22, 2014, Mr. Pantuso filed a motion for pre-trial consolidation of all pending actions involving the alleged failure of the Profemur hip devices. Specifically, Mr. Pantuso alleged that eight cases were currently pending in Shelby County Circuit Court concerning the alleged failure of Wright Medical's Profemur hip device and that because of common issues of law and fact, the use of a coordinating judge would promote judicial economy.

On the same day, Mr. Pantuso also filed a response in opposition to Wright Medical's motion to dismiss on the ground of forum non conveniens . Mr. Pantuso contended that Utah was not an available forum because Wright Medical Group was not subject to personal jurisdiction in Utah and "has a recent history of not voluntarily appearing or accepting service of process in states where it is not registered to do business." Further, Mr. Pantuso argued that the crux of his complaint concerned not the medical treatment he received relative to his hip replacements, but the decisions made by Wright Medical concerning the manufacture, design, and marketing of the Profemur hip device, all of which occurred at Wright Medical's Memphis office. According to Mr. Pantuso, the witnesses that could testify regarding these issues were Tennessee residents who may not be amenable to process in Utah. Further, Mr. Pantuso contended that because the fact witnesses that reside in Utah were medical providers, it was nearly certain that their testimony would be submitted by deposition. Because Utah law clearly provides a method to subpoena witnesses for deposition, Mr. Pantuso argued that Wright Medical would not be prejudiced should it be unable to obtain live testimony of these witnesses. Mr. Pantuso further argued that the Utah witnesses pertained only to damages, rather than liability, unlike the Tennessee witnesses.

Wright Medical filed a reply to Mr. Pantuso's response on May 29, 2014, generally denying the allegations and contentions made by Mr. Pantuso. Importantly, Wright Medical admitted that Utah had no personal jurisdiction over Wright Medical Group; however, Wright Medical alleged that Wright Medical Group took no part in the design, manufacture, distribution, or marketing of the Profemur hip devices, and, therefore, was nothing more than a nominal party. Regardless, Wright Medical asserted that in the event that Wright Medical is found a necessary party to this lawsuit, Wright Medical Group would waive any personal jurisdiction defense it was entitled to assert in Utah. Wright Medical also reiterated all the factors it contended militated in favor of dismissal.

The trial court heard Wright Medical's motion on June 2, 2014. During the hearing, the trial court expressed its belief that regardless of where the trial took place, "one or the other side will be inconvenienced." Speaking to counsel for Wright Medical, the trial court noted "I don't think it's any more inconvenient for you than it would be for plaintiff[ ] if we moved back to Utah." Accordingly, on June 19, 2014, the trial court entered an order denying Wright Medical's motion to dismiss.

On July 10, 2014, Wright Medical filed a motion for an interlocutory appeal to this Court. Mr. Pantuso objected, but the motion was ultimately granted on November 14, 2014. This Court likewise granted the application for an interlocutory appeal on February 9, 2015. While the appeal was pending, this Court also granted three motions filed by Wright Medical for this Court to consider additional facts regarding the number of cases involving Wright Medical pending in Shelby County Circuit Court. According to the motions filed by Wright Medical, as of August 4, 2015, seventeen cases were pending in Shelby County Circuit Court against Wright Medical, involving plaintiffs from California, Indiana, Maryland, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

Issue Presented

In its February 9, 2015 order, this Court indicated that it would review the following issue: Whether the circuit court erred in denying Wright Medical's motion to dismiss based upon the doctrine of forum non conveniens ?

Applicable Law

Both parties agree in this case that our review is governed by the Tennessee Supreme Court's seminal Opinion in Zurick v. Inman , 221 Tenn. 393, 426 S.W.2d 767 (Tenn.1968). In Zurick, the plaintiff, a resident of Georgia, sued the defendant, a resident of Alabama, for injuries related to a traffic accident that occurred in Georgia. The only apparent connection to Tennessee was the fact that the plaintiff had been transported to Tennessee for medical treatment after the accident. Consequently, the defendant filed a motion to dismiss the action on the basis of forum non conveniens . The trial court dismissed the case, but the Court of Appeals reversed. Id. at 396, 426 S.W.2d 767.

The Tennessee Supreme Court affirmed the Court of Appeals but held that Tennessee Courts have inherent power to apply the doctrine of forum non conveniens . As the Court explained:

Generally speaking, forum non conveniens deals with the discretionary power of the court to decline to exercise a possessed jurisdiction whenever, because of varying factors, it appears that the controversy may be more suitably or conveniently tried elsewhere.

Id. at 769 (quoting Cotton v. Louisville & Nashville R.R. Co. , 14 Ill.2d 144, 152 N.E.2d 385, 388 (Ill.1958) ). According to the Court, the doctrine of forum non conveniens originated...