By Samarth Chaddha, attorney
Americans are getting injured abroad all the time. Such injuries can be a slip at a hotel lobby, a fall by the swimming pool, or even fatal injuries in a plane crash. Upon the injury, the injured party or their families are often wondering about their rights and where the law stands on these scenarios. This article attempts to look at the factors influencing the court decisions and the existing cases that have been seen in the courts in the U.S.
Let us look at a landmark case to understand the doctrine of forum non-conveniens.This doctrine is a power given to the courts to dismiss a case when another court or forum is better suited to hear the case. The party moving to dismiss on these grounds has to show two things: (1) the existence of an adequate alternative forum and (2) that the balance of private and public factors favor dismissal.
In the case of Goldstein v. Hard Rock café, the plaintiffs stayed as guests in a Hard Rock hotel in the Dominican Republic. A U.S. citizen fell on a walkway that had water splashed over it and had to undergo a knee replacement. The court invoked the doctrine of forum non-conveniens to prove that an alternative forum, such as the one in the Dominican Republic, had the jurisdiction to hear the case. This doctrine was used because of ‘private interest factors’ such as the ease of access to proof, applicability of the Dominican law, and translation from Spanish into English in the United States. Furthermore, the issue of unwilling witnesses was also seen as a factor, as witnesses from a foreign jurisdiction cannot be compelled easily to come to the U.S. to testify. The court required the defendants to submit to the jurisdiction of the court in the Dominican Republic.
Key Factors for a Personal Injury Claim
However, factors such as the residence of the parties and witnesses, as well as the court’s convenience, are seen as part of the private interests of litigants. Regardless of whichever factors the courts choose to adopt as part of its analysis, respecting the parties’ choice of court is essential. But this is easier said than done, as many of the injury cases can involve having multiple plaintiffs and the possibility of being embroiled in international litigation. Out of these various plaintiffs, there may be only one or two U.S. nationals as an injury scenario can affect more than just one person. Therefore, it may be better suited in such scenarios to opt for a foreign court.
Forum Shopping to establish Jurisdiction
Courts are also skeptical of such injury claims because of what they call, forum shopping. Forum shopping occurs when a plaintiff chooses the court that is most beneficial for its case and sues in that court. Hence, a U.S. court may find that an American court is being approached because of a generous history of damages, and rule that the events giving rise to the claim have no bona fide connection to the United States. Once a court has ruled so, they will provide less deference to the plaintiff’s choice of court and may even dismiss the claim.
Conflicting Jurisprudence
The court cases in the U.S. have been a mixed bag of sorts. In the case of Hefferan v. Ethicon Endo-Surgery, Inc, a German husband and wife tried to sue in a U.S. court because of injuries sustained due to a medical procedure in Germany. The injuries were suffered in a German hospital and because of German doctors. The U.S. courts found that the couple was unable to show any reason for filing their suit in the United States. Here, the fact that a U.S. citizen continued to live in Germany was seen as one of the factors that influenced a U.S. court to decline the couple the jurisdiction to bring forward their dispute.
Individual states such as Texas have wrongful death statutes that have abolished the forum non-conveniens defense in cases of personal injury, and extended this to cover situations where injuries occur in foreign countries. In the case of Dow Chemical Co. v. Castro Alfaro, the Texas Supreme Court ruled that Texas citizens were interested in the activities of a Texan-based company that was operating abroad. Hence, if Texan citizens were suffering from medical problems as a result of pesticide exposure by American companies abroad, this kind of issue would fall within a Texan court’s jurisdiction. Ironically though, the holding of this case was later modified, where the forum non-conveniens doctrine was affirmed by the Texan legislature.
One can see in aviation cases, the foreign injury-U.S. citizen scenario as well. However, here too, the courts balance out factors such as the disadvantage to the defendant of being sued in a U.S. court. In the case of Tazoe v. Airbus S.A.S., an airplane crash involved only one U.S. citizen among several other foreign plaintiffs. The accident occurred in Sao Paulo, Brazil, over a rain-soaked runway and killed one U.S. citizen. Though the court initially gave ‘heightened deference’ to an American citizen suing in a court in the U.S.; this deference was overcome by the ‘unusually extreme and materially unjust’ disadvantage that would affect the defendants if the case proceeded in a court in Florida.
Weighing the Public Interest
The public interest factors include a local interest in having localized controversies decided at home and the avoidance of unnecessary problems in conflicts of law. Other relevant factors include the avoidance of unnecessary problems in the conflict of laws, the application of foreign law, or the unfairness of burdening citizens in an unrelated forum with jury duty. Hence, if an accident happens outside the U.S., the American courts may rule that it is within the local interest of the foreign court to have the decision decided abroad only. U.S. courts are often not ‘at home’ with trying to apply foreign law. Thus, if a slip-and-fall happens in the Dominican Republic, the Dominican Republic has a significant interest in deciding a controversy arising from occurrences on its own soil.
Besides, it will also be the case more often than not, that the foreign court will provide a sufficient remedy to the plaintiffs, even if the recovery will be much lesser in USD as compared to a U.S. court. An international forum only has to give the plaintiffs some remedy for the alternative forum to be adequate. What is more, legal costs outside the U.S. are also much lesser. Therefore it may be more affordable to contest a case outside the U.S. The enforceability of that international forum’s judgment in the U.S. can also count as a relevant factor in making the foreign court a better forum for the dispute.
Other Factors as mentioned in Court Cases
As ruled in the U.S. case of Piper Aircraft, with regards to the weighing of private interests, the plaintiff’s choice of forum should rarely be disturbed unless the balance is firmly in favor of the defendant. The individual interest factors can include access to sources of proof and availability of compulsory process for attendance of unwilling witnesses. In addition, it is important to consider the cost of the presence of willing witnesses as well as practical problems that make the trial of a case inexpensive in a foreign country. Such private interest factors are easier to follow if the accident has occurred abroad. If the laws conflict, such as a conflict between U.S. laws and foreign laws, then the Washington test is used to determine the appropriate choice of law, such that the laws of the forum with the ‘most significant relationship’ will govern. The deference given to the foreign jurisdiction may be more reasonable and convenient for the parties that are involved.
Presence of the Americans
The mere presence of U.S. citizens in a case is not sufficient enough to bar American courts from dismissing a claim based on forum non-conveniens. Even the lower U.S. courts such as district courts have the discretion to decide that a foreign forum is more convenient. In the case of Spinozzi v. I.T.T. Sheraton Corp, the courts found the plaintiff’s assertion that he should be able to carry the tort law of his state (because the hotel was advertised in a U.S. state) with him to a hotel in Mexico absurd.
A case can be further complicated if the doctor or person treating the U.S. citizen is not employed by the defendant. Therefore, U.S. courts have to figure out ways to implead unwilling defendants. The witnesses that are in the foreign country would be more likely to testify to things such as maintenance history of the walkway areas where the slips and falls have occurred if such proceedings are being done locally. It is difficult to imagine a scenario where lower-level employees like maintenance workers are summoned to a U.S. court. Travel to the U.S. would involve hardship for not just the employees, but also for the entity responsible for sponsoring their stay and travel. Also, how frequently this travel may be required can also be a key concern for such witnesses.
Conclusion: Not a comfortable journey for plaintiffs
In conclusion, it is not so simple for U.S. citizens to obtain favorable judgments from U.S. courts for injuries that occur abroad. The jurisprudence has indicated that courts often weigh public and private factors, and lean towards the local interest in the foreign court adjudicating on the issue. There is still the ‘deference’ standard that a U.S. citizen or resident gets if they come to a U.S. court. However, this deference can be easily overcome in favor of both private and public interest factors.
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