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A group of local plaintiffs’ lawyers seeking to bring the PPA claims of out-of-state clients to Philadelphia’s complex litigation center hasn’t gotten any breaks from a Superior Court panel. In Engstrom v. Bayer Corp., the three-judge panel affirmed complex litigation center Coordinating Judge Norman Ackerman’s decision to dismiss on inconvenient forum grounds five cases that all involved out-of-state plaintiffs who had sued Pittsburgh-based Bayer for injuries allegedly stemming from the out-of-state use of the decongestant ingredient phenylpranolamine (PPA). “Having examined the merits of appellants’ arguments in all their permutations,” Senior Judge Frank J. Montemuro Jr. wrote, “we find no abuse of discretion in the trial court’s conclusion that weighty reasons exist to supersede appellants’ choice of forum.” Judges Correale F. Stevens and John T. Bender joined Montemuro in the opinion, which was released Monday. Michael Weinkowitz of Levin Fishbein Sedran & Berman, who represented two of the Engstrom plaintiffs, said that his clients would appeal the panel’s ruling. Weinkowitz was a lead co-author of a King’s Bench appeal to the Supreme Court on behalf of the Engstrom plaintiffs, but in early May, the justices deferred a decision on the appeal to the Superior Court. Signing on to the brief were attorneys from Anapol Schwartz Weiss Cohan Feldman & Smalley, Kline & Specter, Levin Fishbein, Levy Angstreich Finney Baldante Rubenstein & Coren and the Locks Law Firm. According to Montemuro’s opinion, the consolidated appeals in Engstrom were filed by plaintiffs who claimed that taking certain Bayer products – specifically, Alka-Seltzer Plus – had resulted in their hemorrhagic strokes. In the past, PPA was used as an ingredient of Alka-Seltzer Plus and other common cold medications. The Engstrom plaintiffs are residents of four states altogether – Arizona, Hawaii, Missouri or Washington state – the opinion states, and none has ever lived in Pennsylvania. Additionally, in all the cases, the PPA-containing medication was not purchased in Pennsylvania, the plaintiffs were not treated for their injuries in the state and only one of the witnesses material to the litigation is located in the commonwealth. Bayer is an Indiana corporation with headquarters near Pittsburgh, according to the opinion. The corporate division that produced the medication in question was located in Indiana until 1995, when it moved to New Jersey. After the cases were launched, from August 2001 to November 2002, and discovery, including a Frye hearing, had been under way for several months, Bayer moved for dismissal under the forum non conveniens doctrine in each of the cases in May 2003, the opinion states. Ackerman’s order granting that motion included a stipulation by Bayer that it would accept service of process in each plaintiff’s home state and not raise as a defense any violations of the statute of limitations, according to the opinion. Montemuro wrote that the plaintiffs’ numerous appellate questions effectively boiled down to two issues: whether the trial court applied the appropriate test in dismissing the cases and whether Bayer’s forum non conveniens motion was timely filed. According to Pennsylvania case law, the opinion states, the two main factors to consider in analyzing an inconvenient forum motion are that a plaintiff’s choice should not be disturbed “except for weighty reasons” and that the suit should not be dismissed where no other forum is available. Montemuro wrote in a footnote that the appellants argue that alternative forums are not available to them, except for in the states where they reside. But the panel rejected that argument, calling attention to the fact that the plaintiffs offered no reason as to the necessity of multiple alternative forums. And in its 2002 opinion in Humes v. Eckerd Corp., Montemuro wrote, “this court specifically rejected the notion now being advanced by appellants, who insist that the weighty reasons test for determining the application of the forum non conveniens doctrine requires proof that the forum chosen by the plaintiff is ‘oppressive and vexatious to the defendant’ . . . “ The judges also concluded that the Superior Court’s February decision in D’Alterio v. New Jersey Transit is not controlling in Engstrom. In D’Alterio, a Philadelphia trial court had sua sponte dismissed under forum non conveniens the claim of a New Jersey resident injured while working in New Jersey for an employer that regularly does business in Philadelphia. On appeal, Montemuro’s opinion states, the Superior Court ruled that the dismissal was improper because extensive discovery had already been conducted and the defense had never challenged the plaintiff’s choice of forum. “Here, despite appellants’ argument that the extensive discovery already conducted justifies the same result as in D’Alterio,” Montemuro wrote, “we cannot agree.” Addressing the plaintiffs’ second issue, the judges ruled that Bayer had referenced the forum non conveniens doctrine in their complaint responses and also filed their actual motions in a timely fashion. The judges also rejected the plaintiffs’ argument that the dismissals would be prejudicial because the expert information accrued during discovery could be rendered useless in a different forum. The panel noted that the Frye test is more restrictive than the Daubert test found in the federal and some state systems. “Therefore,” Montemuro wrote, “any information which would satisfy Frye would, a priori, satisfy Daubert.” Weinkowitz said that his clients would soon file a petition with the Superior Court for an en banc consideration of the case. “With this ruling, the plaintiffs’ choice of forum is no longer of paramount consideration in Pennsylvania,” Weinkowitz said. “The ruling abrogates the policy articulated by the Superior Court in [previous case law] that a trial court should not be prompted to dismiss a case under the forum non conveniens doctrine where the defendant delayed in urging the application of the doctrine for such a long time, all the while fully participating in pretrial discovery.” The remaining Engstrom appellants were represented by Martin Rubenstein of Levy Angstreich and Jonathan Miller of the Locks Law Firm. Rubenstein declined to comment. Miller did not immediately respond to a call seeking comment. Bayer was represented by Albert Bixler of Eckert Seamans Cherin & Mellott. “Bayer is gratified that the Superior Court has upheld the common pleas court’s order granting Bayer’s motion to dismiss,” Bixler said. (Copies of the 13-page opinion in Engstrom v. Bayer Corp ., PICS No. 04-0933, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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