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SAN FRANCISCO -- (Mealey's) A California federal court must reconsider if a Mexican court is a suitable alternative forum for eight Mexican nationals who went blind or lost their eyes due to contaminated eye fluid made by an American company, a split panel of the Ninth Circuit U.S. Court of Appeals ruled April 7 (Francisca Palomino Gutierrez, et al. v. Advanced Medical Optics, Inc., No. 09-55860, 9th Cir.).
In October 2007, Francisca Palomino Gutierrez and seven other Mexican nationals underwent cataract surgery in Mexico in which Healon ophthalmic viscoelastic, an injectable gel made by Advanced Medical Optics Inc. (AMO), was used. Unused Healon supplies at the hospital were later found to be contaminated with virulent bacteria that causes endophthalmitis; five of the patients went blind in their operative eye, and three had their infected eyes removed.
The Mexicans sued AMO (now Abbott Medical Optics Inc.) in the U.S. District Court for the Central District of California. Judge David O. Carter granted the defendant's motion to dismiss for forum non conveniens.
The Mexicans appealed to the Ninth Circuit but contemporaneously filed a lawsuit in a Mexican court. While the Ninth Circuit appeal was pending, the Mexican court ruled that it lacked jurisdiction.
The Ninth Circuit majority said that the District Court did not err in its forum non conveniens ruling but that "intervening events compel reconsideration." The majority said the trial court did not shift the burden of proof on the availability of an alternative forum onto the plaintiffs and correctly found that Mexico was an available alternative at the time.
The majority said it "cannot ignore" the subsequent history of the claims. "Here, to simply affirm the district court without acknowledging that Plaintiffs do not have a forum in which to bring their case would, apparently, be to leave their horrific injuries wholly uncompensated."
Citing the Seventh Circuit's forum non conveniens ruling in In re Bridgestone/Firestone, Inc. (420 F.3d 702, 705 [7th Cir. 2005]), the majority said it is appropriate to remand the case to the District Court for reconsideration based on updated information.
However, the majority said the District Court needs to consider why the Mexican court declined to take jurisdiction and whether it was because of the plaintiff's "actions or inactions" and whether they "gamed" the system.
The majority declined to find that the trial court erred by not including a "return jurisdiction" clause in its dismissal, saying there is no justifiable doubt that AMO would not submit to the jurisdiction of a Mexican court.
Circuit Judge Johnnie B. Rawlinson concurred in affirming the forum non conveniens ruling but dissented in remanding the case, saying there is "considerable dispute regarding whether the dismissal in Mexico resulted from plaintiffs' shenanigans."
[Editor's Note: Full coverage will be in the April 21 issue of Mealey's Emerging Drugs & Devices. In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #28-110421-001Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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