dalmas-maurice-otieno-anyango-and-jane-tinna-agola-otieno-as-natural ( 2012 )

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE BELL ATTORNEYS FOR APPELLEE
Gary C. Robb HELICOPTER TEXTRON INC. ROLLS-ROYCE CORPORATION
Kansas City, Missouri Edward R. Moor Nicholas C. Pappas
Thomas H. Neuckranz Darren A. Craig
Roy T. Tabor Howard Huntington Julia Blackwell Gelinas
Susan W. Rempert James Beal Indianapolis, Indiana
Indianapolis, Indiana Chicago, Illinois
ATTORNEYS FOR APPELLEE
Debra A. Mastrian HONEYWELL INTERNATIONAL INC.
Indianapolis, Indiana Steven E. Springer
Crystal G. Rowe
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
FILED
Jul 30 2012, 4:29 pm
No. 49S04-1207-CT-434 CLERK
of the supreme court,
court of appeals and
tax court
DALMAS MAURICE OTIENO ANYANGO AND
JANE TINNA AGOLA OTIENO, AS NATURAL
PARENTS AND NEXT OF KIN OF
ISAIAH OMONDI OTIENO, DECEASED,
Appellants (Plaintiffs below),
v.
ROLLS-ROYCE CORPORATION,
HONEYWELL INTERNATIONAL INC., AND
BELL HELICOPTER TEXTRON INC.,
Appellees (Defendants below).
_________________________________
Appeal from the Marion Superior Court, No. 49D07-1003-CT-9655
The Honorable Michael D. Keele, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1011-CT-679
_________________________________
July 30, 2012
Sullivan, Justice.
Parents of a young man killed in a bizarre helicopter accident in British Columbia appeal
an Indiana trial court’s dismissal of their complaint in favor of the Canadian forum, arguing that
their claim should be tried here because they would only be entitled to nominal damages under
British Columbia law. Because we conclude that British Columbia provides an available and
adequate forum under applicable law, and that the trial court did not otherwise abuse its discre-
tion in dismissing the complaint on the ground of forum non conveniens, we affirm the trial
court’s judgment.
Background
This appeal arises out of an almost unbelievable accident occurring on May 13, 2008, in
British Columbia, Canada. On that day, 20-year-old Isaiah Omondi Otieno, a Kenyan citizen
and student at the College of the Rockies in Cranbrook, British Columbia, was mailing a letter
from Canada to his parents in Kenya when a helicopter flying overhead lost power. The helicop-
ter crashed to the ground and killed Otieno along with the helicopter’s pilot and two passengers.
On March 3, 2010, Isaiah’s parents, Dalmas Maurice Otieno Anyango and Jane Tinna
Agola Otieno (collectively, the “Otienos”), sued Bell Helicopter Textron Inc., Rolls-Royce
Corp., and Honeywell International Inc. (collectively, the “Defendants”), in Marion County, In-
diana, for the wrongful death of their son. The Defendants are connected to the helicopter as fol-
lows:
 The helicopter was manufactured in Texas in 1974 by Bell Helicopter.
 The helicopter engine was manufactured in Indiana by the Allison Division of Gen-
eral Motors, which sold its assets to a company that was later purchased by Rolls-
Royce.
 The helicopter’s engine components were designed at Honeywell’s facility in Indiana
and then manufactured in North Carolina.
The Otienos sought to recover on theories of strict liability and negligence based on the
design and manufacture of the helicopter engine and engine component parts and on the failure
2
to certify and recommend safe and proper replacement parts. Subsequently, representatives of
the three other people killed in the accident sued the Defendants and others in British Columbia
on similar theories.
In June, 2010, the Defendants filed both a motion to dismiss the Otienos’ lawsuit pursu-
ant to Indiana Trial Rule 4.4(C) on the ground of forum non conveniens1 – that Indiana was an
“inconvenient forum” compared to British Columbia – and a stipulation pursuant to Trial Rule
4.4(D) that they would (a) submit to the personal jurisdiction of and (b) waive any statute of
limitations defenses in British Columbia. After considering the evidence and the written and oral
arguments of counsel, the trial court granted the Defendants’ motion to dismiss in favor of Brit-
ish Columbia as the more convenient forum.
The Otienos appealed, arguing that the trial court abused its discretion in granting the De-
fendants’ motion to dismiss based on forum non conveniens. Specifically, the Otienos chal-
lenged the trial court’s finding that British Columbia provided an adequate forum in which to
pursue their cause of action. The Court of Appeals affirmed the trial court’s dismissal. Anyango
v. Rolls-Royce Corp., 953 N.E.2d 1147, 1153 (Ind. Ct. App. 2011).
The Otienos seek, and we now grant, transfer, thereby vacating the opinion of the Court
of Appeals. Ind. Appellate Rule 58(A).
Discussion
Trial Rule 4.4(C) governs the dismissal of litigation based on forum non conveniens:
Jurisdiction under this rule is subject to the power of the court to order the litiga-
tion to be held elsewhere under such reasonable conditions as the court in its dis-
cretion may determine to be just.
1
Forum non conveniens is defined as “[t]he doctrine that an appropriate forum – even though competent
under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it
appears that the action should proceed in another forum in which the action might also have been properly
brought in the first place.” Black’s Law Dictionary 726 (9th ed. 2009).
3
In the exercise of that discretion the court may appropriately consider such
factors as:
(1) Amenability to personal jurisdiction in this state and in any alternative
forum of the parties to the action;
(2) Convenience to the parties and witnesses of the trial in this state in any
alternative forum;
(3) Differences in conflict of law rules applicable in this state and in the
alternative forum; or
(4) Any other factors having substantial bearing upon the selection of a
convenient, reasonable and fair place of trial.
Ind. Trial Rule 4.4(C). The language of the rule itself entrusts this determination to the trial
court and so our review of a trial court’s dismissal under this rule is limited to abuse of discre-
tion. Freemond v. Somma, 611 N.E.2d 684, 690 (Ind. Ct. App. 1993) (citing Killearn Props.,
Inc. v. Lambright, 176 Ind. App. 684, 687, 377 N.E.2d 417, 419 (1978)), trans. denied. A trial
court abuses its discretion when it “arrives at a conclusion that is clearly against logic and the
natural inferences to be drawn therefrom.” Id.2
Both the Defendants and the Otienos submitted rather extensive briefs and evidence to
the trial court in support of their respective positions. The trial court also held a hearing on the
Defendants’ motion. The Defendants argued that this case should be litigated in British Colum-
bia because the events giving rise to the suit occurred there and a parallel suit is pending there.
They listed several considerations related to the inconvenience of an Indiana forum: the witness-
es are located in Canada; Canadian officials investigated the case and disassembled the engine
and engine components at issue; the physical evidence is in Canada; witnesses knowledgeable
about damages are located in Canada (or Kenya); obtaining testimony of witnesses, documents,
and physical evidence would be limited by the procedures of international discovery; and the
case would be governed by Canadian law. In response, the Otienos argued that the bulk of the
evidence related to their product-liability action is in the United States (and in Indiana in particu-
2
We note language in most decisions of the Court of Appeals applying Trial Rule 4.4(C) to the effect that
“[t]he purpose of [the rule] is to permit a case to be litigated in another [forum] upon a showing that
litigation in Indiana is so inconvenient that substantial injustice is likely to result.” Emp’rs Ins. of
Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1021 (Ind. Ct. App. 1999) (citing Freemond, 611
N.E.2d at 691), trans. denied. This language appears to date to Killearn Properties, when it appeared with
a citation to “1 Harvey, Indiana Practice, Author’s Comments 4.4(C) p. 313.” 176 Ind. App. at 687, 377
N.E.2d at 419. It would conflict with the explicit discretionary authority granted to the trial court in Trial
Rule 4.4(C) if a motion to dismiss could not be granted unless it was clear that litigation in Indiana would
be so inconvenient that “substantial injustice” would be likely to result.
4
lar) and that, if tried in Indiana, the case would not be governed by Canadian law. Moreover,
using the language of Trial Rule 4.4(C), they argued that it would not be “just” to require them to
litigate this case in British Columbia because their action would not be economically viable
there. Specifically, they contended that under applicable British Columbia law, “no monetary
compensation would be permitted other than recovery of burial or funeral expenses.” Pet. to
Transfer i (Questions Presented on Transfer).
Judge Keele’s order granting the Defendants’ dismissal motion addressed each of the
enumerated factors in Trial Rule 4.4(C) as follows:
4. The Defendants have agreed to submit to personal jurisdiction in British Co-
lumbia, Canada. See [Ind. Trial] Rule 4.4(C)(1). The Defendants have agreed
to waive or toll any applicable Canadian statute of limitations in British Co-
lumbia, Canada until Plaintiffs have had reasonable opportunity to file their
claims in British Columbia, Canada, not to exceed 120 days from the date of
this ruling.
5. Many witnesses reside in British Columbia, Canada and are outside the sub-
poena power of this Court. Most, if not all, anticipated witnesses which are
United States citizens are employees of the Defendants residing in various
states within the United States. The Defendants have agreed to make these
individuals available for litigation in British Columbia, Canada. On the
whole, it would be more convenient, if not necessary, for the parties and wit-
nesses for the claims to be pursued in British Columbia, Canada, rather than in
Indiana. See [T.R.] 4.4(C)(2).
6. It is anticipated that the claims will be subject to the substantive law of British
Columbia, Canada and not of Indiana. See Simon v. United States, 805
N.E.2d 798 (Ind. 2004)[; T.R.] 4.4(C)(3).
7. There are substantial additional factors which weigh in favor of this matter be-
ing considered by a Canadian court rather than this Court in Indiana. See
[T.R.] 4.4(C)(4)[.] These include:
(a) It is undisputed that the court system in British Columbia, Canada, is
adequate and available to Plaintiffs.
(b) There is already litigation pending in British Columbia, Canada, re-
garding the helicopter crash which seeks compensation for families of
the victims.
5
(c) Rulings and discovery orders by this Court may be difficult, if not im-
possible, to enforce as to persons outside this Court’s jurisdiction.
(d) It is anticipated that there will be significant problems in dealing with
resolving the application of Canadian law.
(e) The majority of public interest factors favor resolution of this dispute
by a court in British Columbia, Canada. Indiana has little, if any, pub-
lic interest in the outcome of this litigation.
(f) A foreign citizen that chooses Indiana as a forum rather than his own
nation is entitled to a substantially diminished presumption that Indi-
ana is a convenient forum. McCracken v. Eli Lilly & Co., 494 N.E.2d
1289 [(Ind. Ct. App. 1986).]
Appellants’ App. 6-7.
In their appeal to the Court of Appeals, the Otienos challenged only the trial court’s find-
ing in paragraph 7(a) above. Specifically, they took issue with the trial court’s locution that the
availability and adequacy of the British Columbia court system was “undisputed.” They main-
tained that this was in dispute because they have “no adequate remedy in British Columbia.”
Appellants’ Br. 6.
In their brief, the Otienos describe how “an esteemed practitioner in British Columbia . . .
has unequivocally explained that British Columbia provides Plaintiffs no economically adequate
remedy.” Id. at 8 (citation omitted). They also submitted an affidavit from an Indiana lawyer
providing her opinion that the Otienos’ wrongful death action would have “a significant seven
figure value” here. Appellants’ App. 565. And they provide case citations from jurisdictions
other than Indiana that they say support their contention that dismissal on the ground of forum
non conveniens should be denied when the remedy in the alternative forum is inadequate.
All of this is to say that the sole reason the Otienos contend that the Defendants’ motion
to dismiss should be denied is because their wrongful-death action would have “a significant
6
seven figure value” if litigated in Indiana, whereas it would have only nominal value if litigated
in Canada.3
In sum, this is not so much a debate over the availability or adequacy of the British Co-
lumbia courts as it is a debate over the substantive law that would govern the Otienos’ recovery
in the event they were able to establish liability. And this is precisely what was at issue in Piper
Aircraft Co. v. Reyno, 454 U.S. 235 (1981), still the leading United States Supreme Court case in
this area of forum non conveniens law.
Piper Aircraft’s facts and procedural posture resemble this case. In short, several Scottish
citizens and residents had been killed in the crash of a chartered airplane in Scotland. Id. at 238-
39. Their estates filed a wrongful-death action in the United States against the company that
manufactured the plane and the company that manufactured the plane’s propellers. Id. The
plaintiffs’ explicit purpose in filing their lawsuit in the United States rather than in Scotland was
that United States laws regarding liability, capacity to sue, and damages were more favorable to
their position than those of Scotland. Id. at 240. The district court granted the defendants’ mo-
tion to dismiss on the ground that Scotland was the more convenient forum. Id. at 241. The
Third Circuit reversed, holding that dismissal is automatically barred where the law of the alter-
native forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff.
Id. at 246.
This is, of course, essentially the rule that the Otienos ask us to adopt here. But the Su-
preme Court rejected this approach, concluding that dismissal could not be denied “merely by
showing that the substantive law that would be applied in the alternative forum is less favorable
to the plaintiffs than that of the chosen forum.” Id. at 247. It then went on to say – importantly
3
Of course, the Otienos’ aversion to British Columbia law is only a relevant consideration here if the
Otienos’ claims would be governed by different law in an Indiana court than in the Canadian forum. Said
differently, given the Otienos’ analysis of Canadian law, it would do them no good to litigate in Indiana if
Canadian law were to govern the proceedings here. For their part, the Defendants point to the fact that
Judge Keele “anticipated that the claims will be subject to the substantive law of British Columbia,
Canada and not of Indiana,” a conclusion that the Court of Appeals specifically affirmed, Anyango, 953
N.E.2d at 1151. There is a temptation – which we resist – to decide the choice-of-law question because it
would be dispositive if we were to come to the same conclusion as our colleagues on the trial court and
Court of Appeals.
7
for our purposes – that “[t]he possibility of a change in substantive law should ordinarily not be
given conclusive or even substantial weight in the forum non conveniens inquiry.” Id.
The Court provided several reasons for its conclusion:
 An earlier decision of the Court, Gulf Oil Corp. v. Gilbert, 330 U.S. 501(1947), “recognized that dismissal may not be barred solely because of the
possibility of an unfavorable change in law.” Piper Aircraft, 454 U.S. at 249
(footnote omitted).
 “Under Gilbert, dismissal will ordinarily be appropriate where trial in the
plaintiff’s chosen forum imposes a heavy burden on the defendant or the
court, and where the plaintiff is unable to offer any specific reasons of con-
venience supporting his choice. If substantial weight were given to the possi-
bility of an unfavorable change in law, however, dismissal might be barred
even where trial in the chosen forum was plainly inconvenient.” Id. (internal
footnote omitted).
 The “Court’s earlier forum non conveniens decisions . . . . repeatedly empha-
sized the need to retain flexibility. . . . If central emphasis were placed on any
one factor, the forum non conveniens doctrine would lose much of the very
flexibility that makes it so valuable.” Id. at 249-50.
 “[I]f conclusive or substantial weight were given to the possibility of a change
in law, the forum non conveniens doctrine would become virtually useless.
Jurisdiction and venue requirements are often easily satisfied. . . . Ordinarily,
. . . plaintiffs will select that forum whose choice-of-law rules are most advan-
tageous. Thus, if the possibility of an unfavorable change in substantive law
is given substantial weight in the forum non conveniens inquiry, dismissal
would rarely be proper.” Id. at 250.
 If, whenever a “foreign plaintiff named an American manufacturer as defend-
ant, a court could not dismiss the case on grounds of forum non conveniens
where dismissal might lead to an unfavorable change in law[,] . . . American
courts, which are already extremely attractive to foreign plaintiffs, would be-
come even more attractive. The flow of litigation into the United States
would increase and further congest already crowded courts.” Id. at 251-52
(internal footnotes omitted).4
4
In making this point, the Court also appropriately said that while “the possibility of a change in law
unfavorable to the plaintiff should not be given substantial weight, we also necessarily hold that the
possibility of a change in law favorable to defendant should not be considered.” Piper Aircraft, 454 U.S.
at 252 n.19.
8
The Otienos quote a passage from Piper Aircraft in their papers: “Of course, if the reme-
dy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no reme-
dy at all, the unfavorable change in law may be given substantial weight; the . . . court may con-
clude that dismissal would not be in the interests of justice.” Appellants’ Br. 8 (alteration in
original) (quoting Piper Aircraft, 454 U.S. at 254). But the full quote from Piper Aircraft is as
follows:
We do not hold that the possibility of an unfavorable change in law should
never be a relevant consideration in a forum non conveniens inquiry. Of course,
if the remedy provided by the alternative forum is so clearly inadequate or unsat-
isfactory that it is no remedy at all, the unfavorable change in law may be given
substantial weight; the district court may conclude that dismissal would not be in
the interests of justice. In these cases, however, the remedies that would be pro-
vided by the Scottish courts do not fall within this category. Although the rela-
tives of the decedents may not be able to rely on a strict liability theory, and alt-
hough their potential damages award may be smaller, there is no danger that they
will be deprived of any remedy or treated unfairly.
Piper Aircraft, 454 U.S. at 254-55 (emphasis in original) (internal footnote omitted). Far from
being an expansive admonition against dismissal as the Otienos assert, the quotation is only a
passing aside that a highly anomalous situation will permit (not require) the trial court to weigh
the inadequacy of the remedy in the alternative forum. This point is made clear by the last sen-
tence: even though Scottish law did not recognize strict liability in tort, only permitted wrongful-
death actions when brought by a decedent’s relatives, and only allowed relatives to sue only for
“‘loss of support and society,’” id. at 240 (footnote omitted), the Court specifically said that there
was “no danger that they will be deprived of any remedy or treated unfairly,” id. at 255.
Although not binding on us,5 we find the reasoning of Piper Aircraft highly persuasive
and adopt it. And in fact, there is already Indiana authority on point. In McCracken v. Eli Lilly
5
Piper Aircraft did not purport to announce a rule of federal constitutional law, and the Supreme Court
subsequently referred to forum non conveniens as a “common-law” doctrine. Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 722 (1996) (citing Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994)). In
any event, the Supreme Court noted that, in its forum non conveniens decisions, the state law of forum
non conveniens dismissals had been “virtually identical to federal law.” Piper Aircraft, 454 U.S. at 248
n.13.
9
& Co., the Court of Appeals affirmed a trial court’s grant of a defendant’s motion to dismiss un-
der Trial Rule 4.4(C) on the ground that the United Kingdom was a more convenient forum:
[A]lthough a potential products liability award to a plaintiff might be smaller in
the United Kingdom and even though litigation there might be more expensive
and more difficult, there appears no danger that the plaintiffs would be treated un-
fairly or be deprived of their remedy. Conversely stated, the present plaintiffs
would have to demonstrate that the alternative forum is so inadequate or unsatis-
factory that there is no remedy at all.
494 N.E.2d 1289, 1293 (Ind. Ct. App. 1986) (citing Ledingham v. Parke-Davis Div. of Warner-
Lambert Co., 628 F. Supp. 1447, 1450 (E.D.N.Y. 1986)). The Ledingham case in turn relied on
the Supreme Court’s analysis in Piper Aircraft. In Ledingham, the trial court was asked to dis-
miss the plaintiff’s lawsuit in favor of a Canadian forum. 628 F. Supp. at 1449. The court had
evidence that Canada did not recognize a claim of strict products liability, did not permit repre-
sentation of clients on a contingency-fee basis, and imposed an upper limit on the recovery of
nonpecuniary general damages. Id. In ruling that these facts did not establish an “inadequate”
forum, the court said:
Faced with similar considerations, the Supreme Court held that the possi-
bility that the law of the alternative forum will be less favorable to the plaintiff,
while a factor, is not sufficient, alone, to bar dismissal on the ground of forum non
conveniens. See Piper Aircraft, 454 U.S. at 247. The Court went on to state that:
[I]f the remedy provided by the alternative forum is so clearly in-
adequate or unsatisfactory that it is no remedy at all, the unfavora-
ble change in law may be given substantial weight; the district
court may conclude that dismissal would not be in the interests of
justice.
Id. at 254. See Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 613 (6th Cir.
1984).
Thus, although plaintiff’s potential damage award may be smaller in Can-
ada, and although litigation there might be more expensive and more difficult, the
Court finds that there is no danger that plaintiff will be deprived of a remedy or
treated unfairly there. See Dowling, 727 F.2d at 615. . . . [T]he courts of Canada
provide an adequate alternative forum for this litigation . . . .
10
Ledingham, 628 F. Supp. at 1449-50 (first and last alteration added). See also Donald J. Carney,
Forum Non Conveniens in the United States and Canada, 3 Buff. J. Int’l L. 117, 133-135 (1996)
(discussing Ledingham). Based on these authorities, we hold that a forum is “adequate” for pur-
poses of Trial Rule 4.4(C) so long as the parties will not be deprived of all remedies or treated
unfairly.
As noted above, the Otienos have supplied us with nine case citations from jurisdictions
other than Indiana that they say support their contention that dismissal on the ground of forum
non conveniens should be denied when the remedy in the alternative forum is inadequate. We
have reviewed these cases and they do not change our view.
Of the nine cases cited, five of them do not address the point the Otienos make here – that
dismissal on the ground of forum non conveniens should be denied because the remedy in the
alternative forum is inadequate. Rather, each of them stands for the proposition that a trial court
does not abuse its discretion when it denies dismissal on the ground of forum non conveniens
where there was a material practical impediment (and not, to repeat, an inadequate remedy) to
the nonmoving party litigating the claim in the alternate forum. We set forth these cases and
their respective practical impediments in the margin.6
6
See Manu Int’l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 66-67 (2d Cir. 1981) (reversing trial court’s
dismissal where witnesses were already in plaintiff’s chosen forum or could as easily be brought there as
to Taiwan; translation problems were much more serious in Taiwan; plaintiffs “as a practical matter”
would not go “to Taiwan, hire counsel there, and then try, without compulsory process, to get witnesses to
go there from England, New York, and Belgium”); Thomson v. Palmieri, 355 F.2d 64, 66-67 (2d Cir.
1966) (upholding denial of dismissal where “[t]he central question [was] one of convenience, and . . . .
plaintiff . . . [said] that it could not afford to bring the matter elsewhere”); McKrell v. Penta Hotels
(France), S.A., 703 F. Supp. 13, 14-15 (S.D.N.Y. 1989) (denying motion to dismiss where plaintiff lacked
financial ability to litigate claim in France because she owed $10,000 in medical bills which she was una-
ble to pay, her health insurance would expire soon, and she had assets of under $50); Hodson v. A. H.
Robins Co., 528 F. Supp. 809, 818 (E.D. Va. 1981) (denying motion to dismiss where attorneys in Eng-
land were not permitted to accept a case on a contingent-fee arrangement; plaintiffs lacked sufficient
funds to pursue actions in England and were unable to obtain legal aid), aff’d, 715 F.2d 142 (4th Cir.
1983), disapproved on other grounds, Van Cauwenberghe v. Biard, 486 U.S. 517, 527 n.6 (1988);
Fiorenza v. U.S. Steel Int’l, Ltd., 311 F. Supp. 117, 120 (S.D.N.Y. 1969) (denying motion to dismiss
where attorneys in Bahamas were not permitted to accept a case on a contingent-fee arrangement and
plaintiff could not prepay a retainer; plaintiff had no source of income, was unable to work, and was liv-
ing with his brother who supported him).
11
Two of the nine cases cited by the Otienos combine a number of practical impediments
with the adequacy of recovery as reasons for denying a dismissal on grounds of forum non
conveniens. In Lehman v. Humphrey Cayman, Ltd., the court listed the plaintiff’s argument
(disputed by the defendant) that recoveries in the Cayman Islands for wrongful death generally
do not exceed $5,000. 713 F.2d 339, 346 (8th Cir. 1983). But the court also listed several prac-
tical considerations – no contingent fees in the Cayman Islands; no resources on the part of the
plaintiff to pay a retainer; absence of jury trial; requirement that the plaintiff post $1,000 bond,
id. at 345-46 – as limiting the plaintiff’s “ability as a practical matter to bring suit in the alterna-
tive forum,” id. at 346 (citations omitted). To our issue, the court said “a plaintiff’s showing of
less favorable substantive law in the alternative forum is not to be given conclusive or even sub-
stantial weight in a forum non conveniens determination.” Id. (citing Piper Aircraft, 454 U.S. at
247).
In Macedo v. Boeing Co., the court considered that punitive damages were not recovera-
ble and that strict liability was not recognized in the alternative forum. 693 F.2d 683, 687-88
(7th Cir. 1982). But like the court in Lehman, the court gave most of its attention to practical
concerns – plaintiffs in Portugal were required to pay substantial fees in advance; attorneys in
Portugal were not permitted to accept a case on a contingent-fee arrangement; and the plaintiffs
would be required to obtain translations for a very considerable amount of documentary proof.
Id. at 690. The court found the alternative forum adequate: “The Supreme Court has told us that
the absence of a strict liability principle and the probability of smaller damages do not make the
remedy available in a foreign court inadequate.” Id. at 688 (citing Piper Aircraft, 454 U.S. at
255).7
One of the nine cases, Zions First National Bank v. Moto Diesel Mexicana, S.A. de C.V.,
629 F.3d 520 (6th Cir. 2010), is cited by the Otienos merely for the general proposition that dis-
7
The plaintiff in Hodson, discussed in footnote 6, supra, argued against dismissal in part because the
remedy available in England was inadequate and uncertain, although it did not specify in what way it was
inadequate. 528 F. Supp. at 817. The court dealt with this argument in a footnote, giving “little weight to
the plaintiffs’ assertions that the remedy available in England is uncertain,” because the defendants had
agreed to pay any judgment rendered against them in an English court and Virginia choice-of-law rules
dictated that the substantive law of England would be applied to determine the remedy if heard in Virgin-
ia. Id. at 819 n.8.
12
missal under forum non conveniens is proper when there is an adequate alternative forum and the
factors outlined in Gilbert point in favor of dismissal.
This brings us to the final case cited by the Otienos, Turgeon v. Naparstek, a Massachu-
setts trial court decision (this is not an appellate decision) in which Massachusetts residents in-
jured in an automobile accident in Quebec opposed the defendants’ request that the court dismiss
the case on the ground of forum non conveniens. Nos. 96-6357, 96-6570, 1999 Mass. Super.
LEXIS 24 (Mass. Super. Ct. Jan. 19, 1999). The court concluded that
because Quebec law does not recognize common law automobile negligence ac-
tions and limits compensation to a statutory cap, plaintiffs could not bring an ac-
tion for the remedy they seek in Quebec. Where the remedy provided by the al-
ternative forum is so clearly inadequate or unsatisfactory that it is no remedy at
all, the court may conclude that dismissal would not be in the best interests of jus-
tice. Although plaintiffs received benefits under Quebec’s no-fault system, the
scope of relief available under Massachusetts law is greater.
Id. at *11-12 (internal citations omitted).
To the extent that Turgeon stands for the proposition that the adequacy of an alternative
forum requires “the scope of relief available” to be at least as great as in Massachusetts, we de-
cline to adopt such a rule here. We believe Piper Aircraft states the better rule.
Applying the standard we adopted, supra, we affirm the trial court’s finding that British
Columbia is an “adequate” forum. British Columbia law allows the Otienos to pursue their
wrongful-death cause of action and, as they admit, to recover some substantive damages, alt-
hough we acknowledge that they may be nominal in value. There appears no danger that the
Otienos would be treated unfairly or be deprived of their remedy. See McCracken, 494 N.E.2d
at 1293.
The Otienos do not dispute any of the other findings of the trial court, so we dispense
with the balancing of public and private interests at stake that is customary in a forum non
conveniens determination. See Piper Aircraft, 454 U.S. at 241 & n.6 (identifying factors out-
lined in Gilbert, 330 U.S. at 508-09).
13
In Gilbert, Justice Jackson wrote of forum non conveniens:
Wisely, it has not been attempted to catalogue the circumstances which
will justify or require either grant or denial of remedy. The doctrine leaves much
to the discretion of the court to which plaintiff resorts, and experience has not
shown a judicial tendency to renounce one’s own jurisdiction so strong as to re-
sult in many abuses.
330 U.S. at 508 (footnote omitted). Similarly, our Trial Rule 4.4(C) wisely entrusts the forum
non conveniens decision to the trial court “under such reasonable conditions as the court in its
discretion may determine to be just.” We find no basis for questioning the trial judge’s exercise
of discretion here in granting the Defendants’ motion to dismiss. Rather, it is overwhelmingly
clear from his order that Judge Keele did exactly what Trial Rule 4.4(C) required of him.
Conclusion
The judgment of the trial court is affirmed.
Dickson, C.J., and Rucker, David, and Massa, JJ., concur.
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