55758874 Jul 21 2014 CONPQRMCR COPY 08:51AM QSIQ!NPI. FILIR Su erler Court of California 8ounty of 1-08 Angs~ss

Shertl R. Carter, Executive OfficerlClerk By: Roxanne Anaiga, Deputy

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Coordination Proceeding JUDICIAL COUNCIL COORDINATION Special Title (Rule 3.550) PROCEEDING NO. 4740

ACCUTANE DRUG CASES COURT'S RULING AND ORDER RE: DEFENDANTS' TO DISMISS ON GROUNDS OF FORUM NON CONVENIENS This document relates to: Hearing Date: July 16,20 14 FAITH HOOVER, et al., v. HOFFMANN-LA ROCHE, INC.; et al., Los Angeles Superior Court Case No. BC487606

ARCHIE WOULARD V. HOFFMAN-LA ROCHE, INC., et al., Los Angeles Superior Court Case No. BC502598

I. BACKGROUND 1) In this coordinated litigation, Plaintiffs allege that they were prescribed the drug I I Accutane and were injured as a result. Plaintiffs allege claims for products liability - defective I I design; strict liability - failure to warn; negligence; negligence per se; breach of implied warranty; breach of express warranty; deceit by concealment; negligent misrepresentation; violation of B&P Code $5 17200, et seq.; violation of B&P Code $5 17500, et seq.; medical negligence; and punitive damages.

In the Hoover and Woulard coordinated cases, Defendants Hoffman-LaRoche, Inc.,

Roche Laboratories, and McKesson Corporation move to dismiss, or alternatively, stay the Plaintiffs' claims based on the forum non conveniens doctrine. Defendants, in particular, seek tc have this case litigated in the following domiciles of the Plaintiffs in the litigation: 1) Laura

Bartholet (Washington); 2) Dillon Calfee (Illinois); 3) Nick Caruso (New York); 4) Luke

Hallstone (Washington); 5) Paul Lysaker (Washington); 6) Brian Morrill (Utah); and 7) Archie Woulard (Arizona). ' For the reasons discussed infra, the motion to stay the Plaintiffs' claims based on forum non conveniens is granted.

11. DISCUSSION Even though the Court has subject matter and personal over Defendants, it may stay or dismiss the action on the ground of inconvenient forum. CCP 94 18.10(a). Forum non conveniens is "an equitable doctrine invoking the discretionary power of a court to decline the exercise of jurisdiction (to stay or dismiss) it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." Stangvik v.

Shiley, Inc. (1991) 54 Cal.3d 744,751. The Court is not required to make findings of fact in ruling on a motion to stay or dismiss on inconvenient forum grounds. Cal-State Business

Products & Services, Inc. v. Ricoh (1993) 12 ~al.~~~.4~~1666, 1676. "[Tlhe inquiry is not

' See Plaintiffs' Fact Sheets, attached as Exhibits C-1 through C-7 to Ziska Declaration. whether [some other state or country] provides a better forum than does California, but whether

California is a seriously inconvenient forum." Ford Motor Co. v. Ins. Co. ofNo. America (1995:

35 ~al.A~~.4'~604, 61 1.

As the moving party, the defendant bears the burden of proof that the action should be tried elsewhere. Plaintiffs choice of forum will not be disturbed unless the court is convinced:

1) a "suitable" alternative forum exists; and 2) the balance of private and public interest factors makes it "just" that the litigation proceed in the alternative forum. Wed& Brown, California

Practice Guide, Before Trial, 73 :4 19 (The Rutter Group 20 13) (citing Stangvik 1.

Shiley, supra, 54 Cal.3d at 751 and Morris v. Ada Corp. (2006) 144 ~al.~~~.4'~1452, 1463).

1. Suitable alternative forum

To find California a nonconvenient forum, there must be a "suitable" alternative forum available, meaning one in which a validjudgment may be obtained against defendant. Weil &

Brown, California Practice Guide, Civil Procedure Before Trial, 73:420 (The Rutter Grouv 201 3

(citing Stangvik v. Shiley, supra, 54 Cal.3d at 752). "Defendant must be subject to in the alternative forum. Alternatively, defendant must be willing to submit to jurisdiction there as a condition of the California court granting its motion to stay or dismiss the

California action." Weil & Brown, California Practice Guide, Civil Procedure Before Trial,

73:421 (The'Rutter Group 2013) (citing Stangvik, supra, at 752). Where there are multiple defendants, they must all be subject to personal jurisdiction in the alternative forum (not just the

"primary" defendants). Weil & Brown, California Practice Guide, Civil Procedure Before Trial,

73 :421.1 (The Rutter Group 201 3).

Importantly, the alternative forum is "suitable" if its law provides a remedy for the claim sued upon. It is sufficient that the action can be brought, although not necessarily won, in the alternative forum. Weil & Brown, California Practice Guide, Civil Procedure Before Trial,

P:423 (The Rutter Group 20 13) (citing Guimei v. General Elec Co. (2009) 172 ~al.A~~.4'~ 689, 696; Roman v. Liberty Univ., Inc. (2008) 162 ~al.~pp.4'~670, 683). Further, the other forum's law need not be as favorable to plaintiff as local law. Weil & Brown, California

Practice Guide, Civil Procedure Before Trial, 73:423 (The Rutter Group 2013) (citing Stangvik, supra, at 764 and Boaz v. Boyle & Co., Inc. (1995) 40 ~al.App.4~~700,711). "Indeed, the alternative forum's law is irrelevant unless the remedy provided is so clearly inadequate or unsatisfactory that it is no remedy at all." Weil & Brown, California Practice Guide, Civil

Procedure Before Trial, 73:423 (The Rutter Group 2013) (citing Stangvik, supra, 54 Cal.3d at

764; Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235,254).

"The 'no remedy at all' exception applies only in rare circumstances, 'such as where the alternative forum is a foreign country whose courts are ruled by a dictatorship, so that there is no independent or due process of law.'' Weil & Brown, California Practice Guide, Weil & Brown, California Practice Guide, Civil Procedure Before Trial, 73:423.1 (The Rutter Group

2013) (citing Shiley, Inc. v. Sup.Ct. (Alsup) (1992) 4 ~al.~~~.4'~126, 133-134). Critically,

"[tlhe fact that a plaintiff will be disadvantaged by the law of [the alternative forum], or that the plaintiff will probably or even certainly lose does not render the forum 'unsuitable[.]" Boaz v.

Boyle & Co., Inc. (1995) 40 ~al.App.4'~700,711).

Questions as to the "suitability" of the alternative forum may be avoided by defendant's agreement to comply with such conditions as submission to jurisdiction there; tolling the statute of limitations for the time the action was pending in California; agreeing to comply with orders of the foreign court; agreeing to produce physical and documents in it: possession at defendant's expense available for inspection as required in the foreign proceedings; and agreement to make past and present employees available to testify in the foreign court at defendant's cost, if so ordered by the courts there. Weil & Brown, California Practice Guide,

Civil Procedure Before Trial, 73:423.5 (The Rutter Group 201 3) (citing Stangvik, supra, 54

Cal.3d at 750). Applying all of these standards, Defendants, through counsel, initially state that they

:onsent to the jurisdiction of each out-of-state plaintiff for purposes of litigating her claim, and

2gree to toll the statute of limitations for the time this action is pending against Defendants in

California, which began on July 2,20 12 in Hoover and March 1 1,2013 in ~oulard.~

Plainly, the "no remedy at all" requirement is not satisfied here. The moving Defendants seek to have the cases of the Plaintiffs referenced above in the courts of other states in the Unitec

States. Each of the states in which Defendants seek to litigate the claims of these Plaintiffs provides remedies for the claims sued upon. The action can be brought, though not necessarily won, in these alternate fora.

For all of these reasons, the Court finds that the referenced states are suitable alternative fora for litigating the cases of the listed Plaintiffs.

b. Balancing of Private and Public Factors

Assuming a "suitable" alternative forum exists, the weight of recognized private and public interest factors must be determined. The jurisdiction with the greater interest in the litigation normally should bear the burden of entertaining it. Weil & Brown, California Practice

Suide, Civil Procedure Before Trial, %3:424(The Rutter Group 201 3) (citing Stangvik, supra, 54

Zal.3d at 758). All of the following factors must be weighed in each case. Shiley, Inc. v. Sup.Ct.

(Alsup), supra, 4 ~al.~~~.4'~at 133- 134.

(1) Private interest factors

Private interest factors relate to where the trial and enforcement of any judgment will be the most expeditious and least expensive. Included are such matters as: 1) access to sources of proof (residence of parties, , location of physical evidence); 2) costs of obtaining

' Ziska Decl., 73. attendance of witnesses; and 3) availability of compulsory process for attendance of unwilling witnesses. Weil & Brown, California Practice Guide, Civil Procedure Before Trial, T[3:424.1

(The Rutter Group 201 3) (citing Stangvik, supra, 54 Cal.3d at 75 1 and Morris, supra, at 1463-

1464).

Here, the private interest factors weigh in favor of granting the motion. None of the

Plaintiffs set forth above are current California residents. Further, the Plaintiffs' Fact Sheets reveal that they all were prescribed Accutane (or Isotretinoin) outside of California, by physicians outside of California, and ingested Accutane/Isotretinoin while living outside of

~alifornia.)The medical records were generated outside of California, and the pharmacies where the prescriptions were filled are all located outside of California. Defendants Hoffman-LaRoche, Inc. and Roche Laboratories are located outside of

California. McKesson is a California corporation. There is a dispute as to McKesson's alleged involvement in the case; Defendants claim that McKesson's involvement is limited to distribution of the drugs, whereas Plaintiffs contend that McKesson actually has a much greater role in the case (including distributing, marketing, and promoting the drugs, and placing them in the stream of commerce). Notwithstanding the dispute over McKesson's role in the litigation, the manufacture and testing of Accutane apparently occurred outside of California. This demonstrates that most of the relevant witnesses and evidence in this litigation (both on Plaintiffs' and Defendants' side) will be located outside of California. There is no compulsory process for requiring attendance of the out-of-state witnesses at trial. Inevitably, the costs of obtaining attendance of these out-of-state witnesses will be more than if the witnesses were located in-state. The Court recognizes Plaintiffs' concern that there will also be significant expense involved in having to litigate in four or five different . However, the Court

See Plaintiffs' Fact Sheets, Exhs. C-l through C-7 to Ziska Decl. at pp. 5-6. believes such an expense will be counterbalanced by the competing concerns and expense of litigating the cases in California.

On balance, the Court finds the private interest factors weigh in favor of granting the motion.

(2) Public interest factors

The public interest factors include: 1) avoiding overburdening local courts with congested calendars, particularly where numerous actions and parties are involved (Stangvik, supra, 54 Cal.3d at 758; Campbell v. Parker-Hann$n Corp. (1999) 69 ~al.~~~.4'~1534, 1542

2) protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern; and 3) weighing the competing interests of

California and the alternative jurisdiction in the litigation, which may include matters such as

California's interest in regulating the transaction or activities involved, the foreign state's concerns in making technology and products available to its citizens that might be impeded if

American liability laws were applied to actions brought by foreign residents, and the competitii disadvantage to California business if resident corporations are required to defend her€ based on injuries incurred elsewhere. (Stangvik, supra, 54 Cal.3d at 75 1; Morris, supra, 144

~al.~~~.4'~at 1464).

Here too, the public interest factors weigh in favor of granting the motion. Staying the action on forum non conveniens grounds would aid in avoiding the potential overburdening of the Court's calendar. It would also protect the interests of local Los Angeles jurors, since they would not be called upon to decide a case in which the local Los Angeles community has little, any, significant concern. Also, compared to the Plaintiffs' domiciles, California's interest in hearing these particular Plaintiffs' claims is small. This is because the events in this case transpired almost wholly outside of California. 1 Accordingly, the Court determines the public interest factors weigh in favor of a finding 2 that the listed states have a greater interest in this litigation than does California.

3 c. Other considerations

4 Finally, Plaintiffs choice of where to sue is entitled to some weight in this analysis, even

5 if plaintiff is a nonresident: "Unless the balance is strongly in favor of the defendant, the

6 plaintiffs choice of forum should rarely be disturbed." Ford Motor Co. v. Ins. Co. of No.

7 America, supra, 35 ~al.~~~..4'~at 6 10-6 1 1; Morris v. Agfa Corp., supra, 35 ~al.~~~.4'at 1465

8 However, "[wlhere all parties live outside California, and the action arises elsewhere, forum non

9 conveniens may compel dismissal. California has no interest in providing a forum for disputes

10 between nonresidents involving claims about which California has no interest: 'Under these

I I circumstances, even if general jurisdiction is assumed, it would be an abuse of discretion for a

12 trial court to do anything but dismiss the actions."' Weil & Brown, California Practice Guide,

13 Civil Procedure Before Trial, 73:432 (The Rutter Group 201 3) (citing Baltimore Football Club,

14 Inc. v. Sup. Ct. (Ramco, Inc.) (1 985) 171 Cal.App.3d 352, 365) (emphasis in original).

15 California's interest in the case is minimal. The two major Defendants, Hofhan-

16 LaRoche, Inc. and Roche Laboratories - are located outside of California, and manufactured

17 Accutane outside of California. It was distributed in California by the one California party to the

18 case, McKesson Corporation. However, all of the listed Plaintiffs are out-of-state residents, and

19 were prescribed Accutane outside of California by non-California physicians. Thus,

20 notwithstanding the listed Plaintiffs' choice of California as a forum, these competing facts

2 1 (demonstrating California's miniscule interest in these particular claims) demonstrate that

22 granting the motion is appropriate - notwithstanding California's general jurisdiction over the RULING AND ORDER

For the foregoing reasons, the motion to stay on forum non conveniens grounds is zranted. The out-of-state jurisdictions are suitable fora, and the private and public interest

Factors referenced supra weigh in favor of having these cases heard in those other jurisdictions. rhe Court will stay the litigation against the Defendants conditionally, pending the assertion of urisdiction by the out-of-state courts. Delfosse v. C.A.C.I.,Inc.-Federal(1990) 21 8 Cal.App.3d

583, 691. Counsel for the parties shall file a joint statement with the Court regarding the

3f the out-of-state court, or courts, asserting jurisdiction of the cases. The joint statement shall 3e filed by August 19,2014. Upon receipt of the joint statement, the Court will take further xtion with respect to the cases, as is appropriate.

Dated: July 2 1,2014

Kenneth Freeman Judge of the Superior Court