DEPUY ORTHOPAEDICS INC. and, JOHNSON & JOHNSON, Appellants-Defendants,
TRAVIS BROWN, et al., Appellees-Plaintiffs
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable John F. Hanley, Judge. Cause No. 49D11-1202-CT-8271.
ATTORNEYS FOR APPELLANT: PETER J RUSTHOVEN, TERRI L. BRUKSCH, MICHAEL R. CONNER, Barnes & Thornburg LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: ERIC C. LEWIS, Lewis Legal Services, P.C., Indianapolis, Indiana.
PYLE, Judge. MATHIAS, J., and BRADFORD, J., concur.
STATEMENT OF THE CASE
In this interlocutory appeal, DePuy Orthopaedics and Johnson & Johnson (collectively " DePuy" ) appeal the denial of its motion to dismiss on the grounds of forum non conveniens, governed by Indiana Trial Rule 4.4(C).
We reverse and remand.
Whether the trial court erred when it denied DePuy's motion to dismiss.
DePuy Orthopaedics, a subsidiary of DePuy Synthes and Johnson & Johnson, provides prosthetic products for hip, knee, and shoulder replacement surgeries. DePuy sells its prosthetic products to hospitals
through independent sales contractors. DePuy's principal place of business is located in Warsaw, Indiana, which is located in Kosciusko County. There, DePuy maintains offices, a manufacturing facility, and a warehouse.
The product at issue in this case, the ASR[TM] XL Acetabular System (" ASR[TM] XL System" ), is a prosthetic hip implant sold in the United States between 2005 and 2010. DePuy International Limited (" DePuy International" ), located in Leeds, England, designed and manufactured the ASR[TM] XL System. Thereafter, DePuy International shipped the ASR[TM] XL System to DePuy facilities in Warsaw.
Between October 2007 and April 2009, nineteen people residing in Virginia and Mississippi (collectively " the Plaintiffs" ) had the ASR[TM] XL System implanted during hip replacement surgeries; eighteen of the surgeries were performed in Virginia while the remaining surgery took place in Mississippi. On August 24, 2010, DePuy Orthopaedics issued a voluntary global recall of the ASR[TM] XL System. The Plaintiffs' doctors notified them of the recall and advised them of the potential need for additional surgery.
On February 29, 2012, the Plaintiffs filed a complaint in Indianapolis, Indiana in the Marion County Superior Court for personal injuries alleging negligence, breach of express and implied warranties, and fraudulent concealment. DePuy filed a motion to dismiss based on Trial Rule 4.4(C). Pursuant to Trial Rule 4.4(D), it also stipulated that DePuy would submit to the personal jurisdiction of Virginia and Mississippi courts and waive any statute of limitation defenses available in those states.
On January 11, 2013, the trial court heard oral arguments on DePuy's motion. DePuy argued that trial in Marion County would not be convenient because the acts alleged by the Plaintiffs in their complaint took place outside Indiana. Further, DePuy claimed that witnesses and evidence essential to their defense were located beyond the subpoena power of the Indiana trial court. Many of the Plaintiffs' arguments in response focused on the fact that Indiana has personal jurisdiction over DePuy and that filing suit in Marion County was permissible. As to Trial Rule 4.4(C) matters, the Plaintiffs claimed that video depositions could cure any prejudice DePuy would suffer from not having subpoena power over certain witnesses. ...