Vargas v. General Electric Co.

Full title: PATRICIA VARGAS ET AL. v. GENERAL ELECTRIC COMPANY ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford

Date published: Apr 30, 2010

2010 Conn. Super. Ct. 9821 (Conn. Super. Ct. 2010)

Opinion

No. X08 CV08-5007137S

April 30, 2010

Memorandum of Decision on Defendants' Motion to Dismiss on Grounds of Forum Non Conveniens (No. 103.00)

ALFRED J. JENNINGS, JR., Judge Trial Referee.

FACTUAL BACKGROUND

The following facts are derived from the allegations of the complaint, the affidavits and other attachments to the parties' memoranda of law and the transcript of the deposition testimony given on March 27, 2009 by Robert Henry Klein, who was Assistant General Counsel from 1980 until 2000 of the General Electric Medical Division ("GE Medical"), an unincorporated division of the defendant General Electric Company ("GE"). Except as otherwise noted, these facts are believed to be uncontroverted.

This is an action seeking compensation for personal injuries, deaths, and other damages allegedly sustained in August and September of 1996 as a result of radiation treatment of cancer patients at the Hospital San Juan de Dios, ("hospital") in San Juan, Costa Rica. The plaintiffs claim that the patients were over-exposed to cobalt radiation during multiple releases of hazardous substances due to the allegedly unreasonably dangerous and defective installation, preparation, assembly, testing, repairs, replacements, technological updates and calibrations performed by the defendant General Electric Company on a single Alcyon II Rotational Cobalt Therapy Unit, serial number 307040 ("unit"), used at the hospital for cancer treatment.

The summons names 99 individual persons as plaintiffs, all of whom list his or her address simply as "Costa Rica." Twenty-four of the named plaintiffs are surviving patients or the guardians of minors who are surviving patients of the hospital, claiming damages on their own behalf or on behalf of a minor ward. The other seventy-five named plaintiffs allege that they are either "personal representatives" of the estate, and/or surviving family members of a deceased patient of the hospital.¹ The complaint is drawn in 223 counts (designated in Roman numerals as Counts I through CCXXIII) consisting of 1,217 numbered paragraphs. The general scheme of the complaint is that surviving patients' claims are expressed as a single count claiming "separate theories" of negligence, gross negligence, strict product liability, breach of implied warranty of merchantability, breach of express warranty, and fraud and claiming compensatory and punitive damages for pecuniary loss, mental anguish and emotional pain and suffering. Some of these counts are designated ("Personal Injury") and are brought solely in the name of the surviving patient.² Others are designated as ("Personal Injury and Loss of Consortium") and are brought jointly in the names of the surviving patient and one or more family members.³ The latter category of counts include additional damage claims for the loss of society, loss of companionship, loss of comfort, loss of protection, loss of filial care, and loss of attention. The claims on behalf of deceased patients typically consist of three counts all based on the same liability allegations of negligence, gross negligence, strict product liability, breach of implied warranty of merchantability, breach of express warranty, and fraud. The counts are wrongful death (claimed by surviving family members), survival action (claimed by the estate and the personal representative) and loss of consortium (claimed by surviving family members).⁴ All counts are presumably based on the substantive laws of Costa Rica, since individual articles of the Costa Rica Civil Code (CRCC) are cited.

1 Each of those other plaintiffs seems to be one of the representatives or family members of a deceased patient, so that the interests of 75 deceased patients and 24 surviving patients are represented among the 99 named plaintiffs.

2 See, e.g. Count CCXVII (Claims by David Ricardo Zuniga).

3 See, e.g. Count CCXVIII (Claims by Felicia Artavia and Roger Suarez).

4 See, e.g. Counts VII, VIII and IX claimed on behalf of Carol Vegas, deceased.

The history of the Alcyon II unit is gleaned from the allegations of the complaint and the Klein deposition testimony. The unit was manufactured in the early 1980s by Thompson CGR Mev., a French company, and sold to Fairfax Hospital in Falls Church, Virginia where it was installed and remained in service until 1991. The unit was maintained at Fairfax Hospital by Thompson CGR Mev. primarily by its employee Edward Jessilonis. In 1988 the defendant General Electric Company ("GE") purchased all the assets of Thompson CGR Mev. and GE Medical took over responsibility for maintaining the unit under the business name GE-CGR. Mr. Jessilonis, a resident of Maryland, became an employee of GE Medical as part of the asset purchase, and remained as the service technician maintaining the unit on a time and materials basis, working out of the GE Medical Systems office in Maryland. In 1991 Fairfax Hospital determined to donate the unit to a hospital in Costa Rica operated by the social security agency of Costa Rica known as "CAJA." In coordination with the Costa Rican embassy in Washington arrangements were made to transport the unit to Costa Rica and donate it to the Hospital San Juan de Dios. GE Medical was retained to participate in the physical process of transferring the unit to the hospital in Costa Rica where it was installed by Therapy Services, Inc., of Frederick, Maryland. The hospital authorized its radiation department to operate the Unit in June 1992. From that point until 1996 GE Medical did not service or maintain the unit. In 1996 it came to the attention of GE Medical, possibly through its Costa Rica representative Nirvana de Moravia, S.A. ("Nirvana"), ⁵ that the unit needed repair and maintenance including a replacement of its cobalt energy head. According to Atty. Klein's testimony the hospital contracted with the Costa Rican subsidiary of a French company called CIS Bio, related to or licensed by the French Atomic Energy Commission to handle and store radioactive sources, to supply the new cobalt head and do the maintenance, and CIS Bio subcontracted with GE Medical⁶ to perform the replacement of the cobalt head by removal of the old head and installation of the new cobalt head in the unit. Edward Jessilonis was sent by GE Medical in Maryland to carry out the cobalt head replacement at the hospital in Costa Rica. With the assistance of five Nirvana employees Mr. Jessilonis accomplished the cobalt head replacement over a period of about three days in August 1996. Mr. Jessilonis then performed certain electromechanical calibrations to the equipment and the unit was accepted on behalf of the hospital by Radiophysicist Juan Francisco Cabezas Solera (Dr. Cabezas), head of the radiotherapy department, who was then responsible for completing dosimetric calibrations for the unit before it was put back in service on or about August 26, 1996.

5 Nirvana was GE Medical's sales and service representative in Costa Rica in 1996. That relationship has since been terminated.

6 Atty. Klein so testified at his deposition. (Tr. 5/1/09, p. 30.) The complaint alleges that "The Hospital engaged Nirvana and General Electric to perform the work on the Unit . . . In order to carry out the work order, GE Medical Systems dispatched its employee, Jessilonis, from his place of work in Maryland to San Jose, Costa Rica." (¶ 82.) For purposes of this motion to dismiss it matters little which version of the retention is correct.

The complaint alleges (¶ 87) that, between August 26, 1996 and September 29, 1996 approximately 109 patients of the hospital, including the 99 persons who are plaintiffs herein (or wards or decedents or family members of plaintiffs) were overexposed to cobalt radiation. The unit was taken out of service by the hospital on September 29, 1996.

The Costa Rican prosecutor's office having jurisdiction in San Juan commenced an investigation of the over-radiation in or about November 1996 and there were extensive hearings before the Criminal Court of San Jose, Costa Rica which also involved civil claims of victims for damages against CAJA as the operator of Hospital San Juan de Dios. Evidence submitted included statements from the Nirvana employees who assisted Edward Jessilonis in replacing the cobalt energy source of the unit, and testimony of international atomic energy experts, and results of testing of the operation of the unit after it had been taken out of service. The court also considered the sworn statement of Dr. Cabezas who took the position that the over radiation was caused by mechanical deficiencies in the unit after the energy source had been replaced by Mr. Jessilonis. On July 21, 1997, Dr. Cabezas was indicted on thirty counts of negligent homicide by causing the over-exposure to radiation by improperly doing required dosimetric calculations after the energy source had been replaced. In August of 2001 Dr. Cabezas was convicted following a trial by a three-judge trial court on sixteen counts of negligent homicide. The court found that the replacement of the radiation source and the electromechanical condition of the unit were not the cause of the radiation overdoses which were caused solely by the human error of Dr. Cabezas in performing his docimetric (dose rate) calculations before the unit was placed back in service. Dr. Cabezas was sentenced to prison for six years and precluded from practicing his profession for an additional five years. With regard to the civil claims, CAJA was ordered to pay civil damages on behalf of three deceased patients, including Carol Vargas, the decedent of Patricia Vargas, the named plaintiff in this case. The court denied or ordered withdrawn many civil claims for procedural reasons or prior settlements with CAJA, including claims relating to 64 of the 99 patients claiming directly or indirectly in this case. In August 2003 the Supreme Court of Justice of Costa Rica affirmed Dr. Cabezas' conviction, but held that the lower court should not have denied compensation claims against CAJA for procedural reasons or because of prior settlement with CAJA. Those civil claims were remanded to the lower court for a determination of damages. Following further proceedings in the lower court, there was yet another appeal to the Supreme Court. According to the defendant at least 51 of the patients who are direct or indirect plaintiffs in this case have already received compensation through judgments or monetary settlements with CAJA. Neither GE nor GE Medical were parties to the judicial proceedings in Costa Rica, which are still ongoing.

This Superior Court at Stamford is the third United States forum where these plaintiffs or this class of plaintiffs have attempted to sue GE for damages allegedly caused by the over-radiation fourteen years ago at the hospital in Costa Rica. On January 3, 2003 three plaintiffs filed a complaint in the Circuit Court for Baltimore City, Maryland, against defendant GE and its employee Edward Jessilonis (now deceased and not a party in this case). The Defendant's Motion to Dismiss for Improper Venue was granted and the case was transferred to the [Maryland⁷] Circuit Court for Anne Arundel County where an additional 164 plaintiffs were added by amended complaint.⁸ After the court had granted summary judgment for the defendants and dismissed in whole or in part 140 of the 148 counts of the amended complaint (eliminating the claims of all but 40 plaintiffs) on various grounds including statute of limitations, and loss of consortium claims not recognized under Maryland law, GE and Jessilonis then moved to dismiss all remaining counts on forum non conveniens grounds. In November 2004 the Circuit Court issued its ruling by comprehensive memorandum of decision, Vargas v. General Electric Company, No. C-2003-89374, Slip Op. (Md. Circuit Court, November 19, 2004). Judge Paul Hackner held that Costa Rica was an available alternative forum, id., 10; that Costa Rica's judicial system was adequate to the task of resolving plaintiffs' claims, id., 13; that the private-interest factors weighed "heavily in favor of dismissing" the lawsuit on forum non conveniens grounds because, inter alia, essentially all of the relevant witnesses and documents were located in Costa Rica, id., 17; and that the public-interest factors weighed in favor of forum non conveniens dismissal because, inter alia, the litigation would be significantly more burdensome for the Maryland Courts than the Costa Rican courts. Id., 19. The Circuit Court issued an order of dismissal of the then-remaining counts of the case on grounds of forum non conveniens (FNC) conditioned on: (1) defendants unconditionally submitting to in personam jurisdiction in Costa Rica; (2) defendants waiving any statute of limitations or laches defenses that may arise in Costa Rica to the extent of any delay attributable to the pendency of the proceeding in Maryland; (3) that defendants be bound by any final judgment entered in Costa Rica; and (4) that claims dismissed on FNC grounds be reinstated in this court [Circuit Court for Anne Arundel County, Maryland] if there is a final determination by the highest appropriate court in Costa Rica ruling that Costa Rica lacks jurisdiction. Id., 19. Defendants were given a period of fifteen days to indicate objection to any of the court's conditions. Absent any such objection, the dismissal, with conditions, became the judgment of the court.

7 Edward Jessilonis was a resident of Maryland at the time. He had worked out of the GE Medical office in Maryland, now essentially closed.

8 The defendant claims there are 96 named persons making claims in this case who were not plaintiffs in Maryland, but only 99 of the 272 persons named in the Connecticut complaint are actually plaintiffs in that they are designated as such in the summons that was served. Since neither party has provided the court with a list of the Maryland plaintiffs, the court will assume that there are at least some Connecticut plaintiffs who were not plaintiffs in Maryland, probably caused at least in part by the fact that additional patients may have died between 2003 and late 2007 when this case was served, resulting in the substitution of their personal representatives or surviving family members as plaintiffs.

On appeal the Court of Special Appeals of Maryland affirmed the Circuit Court's conditional order of dismissal on FNC grounds of the claims of the 40 plaintiffs who had survived the earlier ruling granting summary judgment against the other 127 Maryland plaintiffs. Vargas v. General Electric Co., No. 2328 (Md.Ct.Spec.App., September 21, 2006) at 61. In fact, the appellate court ordered the trial court to vacate all its orders other than the FNC dismissal, and dismiss the entire case solely on FNC grounds so that there would be no doubt that all Maryland plaintiffs would be able to bring their claims in Costa Rica without facing a collateral estoppel or res judicata defense based the summary judgments that had entered against some of them. On remand, then, the Circuit Court entered an amended order on January 4, 2007 vacating its April 16, 2004 entry of summary judgment against some of the plaintiffs, and dismissed the claims of all the Maryland plaintiffs solely on grounds of forum non conveniens subject to the same four conditions as previously ordered.

It is undisputed that none of the plaintiffs accepted the Maryland courts' invitation to commence proceedings against GE in the courts of Costa Rica, nor have any of them attempted to re-initiate their claims in the courts of Maryland. In August of 2004, even before the Maryland Circuit Court had issued its FNC dismissal order of November 19, 2004, the plaintiffs commenced a lawsuit against GE and Edward Jessilonis in the U.S. District Court for the District of Connecticut, styled Patricia Vargas et al. v. General Electric Company et al., Docket No. 3:04cv 01346(CFD). The amended complaint in that federal case has been submitted. On review it appears to be very similar if not identical to the amended complaint filed in the Maryland case as summarized in the opinion of the Court of Special Appeals, supra, at 4. After the defendants had filed a motion to dismiss and served notice of intent to file a motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure, plaintiffs voluntarily consented to dismissal of the action. Approximately three years later, in December 2007, still without having made any attempt to sue GE in Costa Rica, plaintiffs served the complaint in this Superior Court action on "General Electric Company, General Electric Company d/b/a GE Medical Systems and GE Medical Systems"⁹ with a return date of January 22, 2008. The complaint in this case is virtually identical to the complaint in the dismissed federal action, except that Edward Jessilonis, who had died in Maryland, was not named as a defendant in this action.

9 It is undisputed that General Electric Company (GE) is a New York corporation registered to do business, among many other jurisdictions, in Connecticut and that GE's world headquarters is located in Fairfield, Connecticut. It is also undisputed that GE Medical Systems (now GE Healthcare) is not a separate corporation, but is rather an unincorporated division of GE with its world headquarters now in London and its U.S. Headquarters in Waukesha, Wisconsin. There is therefore only one legal entity defendant to this action: General Electric Company

Now before the court is GE's motion to dismiss this action on grounds of forum non conveniens, suggesting that Connecticut is not a appropriate or convenient forum for litigating the claims of the plaintiffs alleged in the complaint and the appropriate and convenient forum would be the court system of Costa Rica where the incidents of over-radiation occurred, or in Maryland, which has agreed to take the case back if Costa Rica declines jurisdiction. In support of the motion GE has submitted extensive documentation consisting of translated excerpts of the foregoing trial and appellate judicial proceedings in Costa Rica, the unreported opinions of the Circuit Court and the Court of Special Appeals in Maryland, a copy of the U.S. State Dept. "Country Report" on Costa Rica, declarations under oath of Catherine N. Price and Attorney William McDaniels and affidavits of experts on Costa Rican law: Diego Baudrit-Carrillo and Ricardo Vargas Hidalgo, a copy of advisory opinion No. SP-189-97 of the Supreme Court of Justice of Costa Rica dated June 10, 1997, and answers to discovery interrogatories and requests to admit given by GE Medical in the Maryland case. In opposition to the motion to dismiss the plaintiffs have likewise submitted an extensive factual record consisting of law review articles on the availability of Latin American fora for purposes of the doctrine of forum non conveniens, the State Dept. "Country Report" on Costa Rica, an affidavit of Juan Francisco Cabezas Solera (the radiophysicist at the Hospital San Juan de Dios) and affidavits of experts on the law of Costa Rica: Gaston Certdad Maroto and Hernando Paris Rodriguez.¹⁰ At the initial oral argument of this motion plaintiffs asked the court to delay decision and to permit plaintiffs to conduct discovery of GE as to the existence and location of documents and witnesses as to GE's and Mr. Jessilonis' role in the events leading up to the over-exposure of the plaintiffs to cobalt radiation in 1996. The Circuit Court in Maryland had denied a similar request saying "[t]he court does not find that additional discovery would be helpful or necessary on this issue . . . Here the parties have thoroughly briefed and argued the matter and each side has submitted extensive expert affidavits in support of their positions." (Citation omitted.) Vargas, supra at 45. This court nonetheless granted the request to the extent of allowing the plaintiff to conduct a deposition of a single "knowledgeable person" GE witness to discover the identity and location of witnesses and documents bearing on the issues in the case. Each side was then permitted to file a supplemental memorandum after the transcript of deposition was filed. Atty. Robert Henry Klein, who was Assistant General Counsel of GE Medical from 1980 until 2000 was identified as the witness and his deposition was taken in Washington DC on March 27, 2009. The transcript of that deposition has now been filed along with a notebook prepared by GE and marked as Deposition Exhibit 2 which summarizes the location and expected areas of testimony of all known witnesses and the location and content of all known documents relating to the issues in the case. The court has heard supplemental argument following the Klein deposition and the disclosure of the notebook and the forum non conveniens issue is now ripe for adjudication.

10 The latter three affidavits were referenced in plaintiff's initial memorandum of law in opposition to this motion to dismiss, but the actual affidavits were filed as a "supplement" to that memorandum, beyond the filing deadline then in effect. Defendant has objected to the late filing and has asked the court to disregard the affidavits, or, in the alternative to consider its rebuttal arguments in its supplemental reply memorandum. The court has accepted and considered the English translations of the three affidavits, and has also accepted and considered defendant's rebuttal arguments and comments.

DISCUSSION Law

"[T]he overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the [plaintiffs'] chosen forum." "The question to be answered is whether the plaintiffs' chosen forum is itself inappropriate or unfair because of the various private and public considerations involved." Durkin v. Intevac, Inc., 258 Conn. 454, 465 (2001). "As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice." Id. at 463-64. The common-law principle also "provides that a court `may resist imposition upon its jurisdiction' even when it has jurisdiction." (Emphasis and internal quotation in the original.) Union Carbide Corp. v. Aetna Casualty and Surety Co., 212 Conn. 311, 314 (1989). Before a court can dismiss on forum non conveniens grounds an alternative forum must exist. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506 (1947). If an alternative forum exists the court must weigh the "private" and "public" interest factors and overcome a strong presumption against dismissal. The central principle of forum non conveniens is that the plaintiff's choice of forum should rarely be disturbed and only upon a showing by the defense that the balance of factors weigh strongly in their favor. Durkin, 258 Conn at 464.

"The case management authority is an inherent power necessarily vested in the trial courts to manage its own affairs in order to achieve the expeditious disposition of cases." Vertex, Inc. v. City of Waterbury, 278 Conn. 557, 563-64 (2006). When making a ruling on a motion to dismiss on forum non conveniens grounds the trial court's decision should be reasonably based on consideration and balancing of all relevant private and public factors. Durkin, 258 Conn. at 464. "[I]nvocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint." Id. "[A] trial court applying the doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other . . . it cannot exercise its discretion in order to level the playing field between the parties." Id. at 464-65.

Citing Gulf Oil Corp., supra, and Picketts v. International Playtex, Inc., 215 Conn. 490 (1990), the Durkin court solidified a four-step balancing process as the "useful frame of reference for the law of Connecticut" for examining forum non conveniens claims. Id. at 466:

First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case. Second, the court should consider all relevant private interest factors with a strong presumption in favor of — or, in the present case, a weakened presumption against disturbing — the plaintiffs' initial choice of forum. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, "the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.

(Citations omitted.) Id.

Analysis

The court will evaluate the merits of the defendant's motion to dismiss by following the four-step balancing process of Durkin's "useful frame of reference."

( 1) Existence of an Adequate Alternative Forum with Jurisdiction over the Whole Case

The first step deals with the availability and adequacy of an alternative forum. GE claims that these plaintiffs have two available and adequate alternative fora having jurisdiction to litigate their claims: primarily, the courts of Costa Rica where the injuries occurred and the over-radiation was officially investigated and prosecuted and where all 99 plaintiffs reside, and, secondarily, the courts of Maryland because of the condition established by the Circuit Court (and approved on appeal) in dismissing plaintiffs' case in that jurisdiction, that the case could be reinstated in the Maryland Circuit Court if there is a final determination by the highest appropriate court in Costa Rica ruling that Costa Rica lacks jurisdiction. This court will focus exclusively on Costa Rica as an alternative forum because the circumstances have changed significantly in the period of more than five years since the "Maryland reinstatement" option was offered: (a) the plaintiffs in that intervening period have made no effort whatsoever to bring their claims in any Costa Rican court; and (b) the only connections between the plaintiffs' claims and the state of Maryland have ceased to exist in that Edward Jessilonis who was a Maryland resident at that time is now deceased, and GE Medical has now closed its Hanover, Maryland office.¹¹ Because this court agrees that Costa Rica is an available and adequate alternative forum, there is no need to speculate whether or to what extent the Maryland reinstatement option may or may not still be available.

Collateral Estoppel

Defendant argues preliminarily that the availability and adequacy of Costa Rican courts to adjudicate this dispute has been litigated and established by the Maryland litigation and is therefore binding on the plaintiffs under the doctrine of collateral estoppel. There is merit to this position. In a contested proceeding the Circuit Court for Anne Arundel County considered the declarations of experts on the law of Costa Rica as submitted by both sides and the federal cases cited by each, and concluded that Costa Rica was both an available and an adequate forum to hear this dispute. Under Connecticut law:

. . . [the doctrine of] collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of th[at] issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. (Citations omitted; Emphasis in original; internal quotation marks omitted.)

Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74 (1999) as quoted in Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, n. 17 (2002).

Here the issues of availability and adequacy of the courts of Costa Rica were actually and necessarily determined as part of the FNC analysis as required under Maryland law. See, Johnson v. G.D. Searle Co., 314 Md 521, 525, 552 A.2d 29 (1989). Those determinations were challenged but affirmed on appeal. There is no difference in evaluating the availability and adequacy of Costa Rica as a judicial forum whether from the perspective of a Maryland case or a Connecticut case. The inquiry is focused in each instance on the Costa Rican judicial system, not the judicial system of the current forum. And there is no indication that the Costa Rican judicial system has changed in any relevant manner since November 2004 when the Maryland case was decided.

The Plaintiffs cite Chick Kam Choo v. Exxon Corp., 468 U.S. 140, 108 S.Ct. 1684 (1988), in support of their argument that the Maryland findings of availability and adequacy of the courts of Costa Rica as an alternate forum do not preclude them from contesting those issues here. Chick Kam Choo was an action brought against Exxon by a Singapore widow in a U.S. District Court in Texas for the death of her husband who was killed in the course of doing repair work on an Exxon tanker in Singapore. The District court granted summary judgment for Exxon as to most of plaintiff's claims on various federal statutory grounds, finding that plaintiff's claims were governed by the law of Singapore, and also granted Exxon's motion to dismiss the remainder of the case on FNC grounds, finding that Singapore was the more appropriate forum. Rather than commencing suit in Singapore, however, the widow commenced an action in a Texas state court based on causes of action under state law. Exxon went back to federal court and successfully petitioned for an injunction prohibiting the plaintiff and her attorney from "relitigating in any state forum the issues finally decided" in the District Court's dismissal [essentially the FNC dismissal]. The injunction was challenged on appeal as a violation of the federal Anti-Injunction Act.¹² The Fifth Circuit upheld the issuance of the injunction, concluding that the injunction fell within the "relitigation" exception to the Anti-Injunction Act which permits a federal court to issue an injunction "to protect or effectuate its judgments." The Fifth Circuit reasoned that an injunction was necessary to prevent relitigation of the forum non conveniens issue. 817 F.2d 307, 312 (1987). The Supreme Court reversed and remanded finding that, insofar as the injunction purported to prevent the relitigation of the FNC issue in state court, it did not fall within the "relitigation exception" because the FNC issue actually litigated before the District court was not the same issue as would be before the Texas state court:

12 28 U.S.C. § 2283 which generally prohibits federal courts from interfering with proceedings in state courts.

Rather, the only issue decided by the District Court was that petitioner's claims should be dismissed under the federal forum non conveniens doctrine. Federal forum non conveniens principles simply cannot determine whether Texas courts, which operate under a broad "open courts" mandate would consider themselves an appropriate forum for petitioner's lawsuit . . . Respondent's arguments to the District Court in 1980 reflected this distinction, citing federal cases almost exclusively and discussing only federal forum non conveniens principles . . . Moreover, the Court of Appeals expressly recognized that the Texas courts would apply a significantly different forum non conveniens analysis. 817 F. 2d, at 314. Thus, whether Texas state courts are an appropriate forum for petitioner's Singapore law claims has not yet been litigated, and an injunction to foreclose consideration of that issue is not within the relitigation exception. (Citations omitted; emphasis added). 486 U.S. 140, 148.

Chick Kam Choo is not right on point because it involves the interplay between federal and state courts and the construction of a federal statute, neither of which is involved here. But it is relevant comparatively in that the relitigation exception to the Anti-Injunction Act, to the extent that it permits federal injunctions against state court relitigation of issues "actually decided" in a prior federal court action, mirrors the law of collateral estoppel. Taken in that context, Chick Kam Choo is totally distinguishable because, unlike the "significantly different" FNC standards which would be used in a Texas state court as compared to the federal standards applied in the U.S. District Court in Texas, in this case both Maryland and Connecticut subscribe to exactly the same FNC standards, which are the federal standards set forth in Gulf Oil Corp. v. Gilbert, supra. See Durkin v. Intevak, supra, 258 Conn., at 466, and Johnson v. G.D. Searle Co. (Maryland Supreme Court, supra). (Both incorporating the Gulf Oil v. Gilbert standards on the law of forum non conveniens). In granting the motion to dismiss the Maryland case brought by these plaintiffs, Judge Hackner cited Johnson and applied the same Gulf Oil standards that this court would be turning to under the law of Connecticut. The very issue of availability and adequacy of Costa Rican courts presented by this motion has therefore been actually and finally decided adverse to the plaintiffs in Maryland, and, on close analysis, then, Kam Choo not only fails to support plaintiffs' argument against collateral estoppel, but supports the application of collateral estoppel here since, if the issue had hypothetically been decided by a U.S. District Court in Maryland instead of the Circuit Court for Anne Arundel County, Kam Choo would permit a federal injunction against those issues being litigated now in this court under the relitgation exception to the Anti-Injunction Act.

The availability and adequacy of the courts of Costa Rica as an alternative forum for this dispute are therefore established as a matter of collateral estoppel binding on any plaintiffs in this case who were also plaintiffs in the Maryland case and any plaintiff in this case who is in privity with anyone who was a plaintiff in the Maryland case. But since, as mentioned in footnote 8, there is no way for this court to confirm that all plaintiffs in this case were also plaintiffs in Maryland or in privity with a Maryland plaintiff — and in the event an appellate court should conclude that collateral estoppel does not apply — the court will also conduct its own independent analysis of the availability and adequacy of Costa Rica as an alternate forum. The rulings of the Circuit Court and the Court of Special Appeals in Maryland will be considered as applicable legal precedent.

Availability of Costa Rica as Alternative Form

"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is `amenable to process' in the other jurisdiction" Piper Aircraft Company v. Reno, 454 U.S. 235, 254, n. 22, citing Gulf Oil v. Gilbert, supra. GE concedes that it is amenable to suit in Costa Rica under Article 46 of the CRCC based on plaintiffs' tort theories arising out of GE's servicing and head replacement of the unit in Costa Rica. (Def. Memorandum 2/21/08, p. 15, n. 4.) Both state and federal decisions have accepted such a stipulation as satisfying the "amendable to process" requirement. Durkin, supra, 258 Conn. at 481, n. 23 (Case remanded with direction to grant FNC dismissal subject to stipulations as to jurisdiction of Australian court); Lake v. Bayer Corp., Docket No X-10CV05-5001416S, Connecticut Superior Court, Judicial District of Waterbury (December 22, 2006, Munroe, J.), 2006 WL 3919948, 42 Conn. L. Rptr. 621 (FNC dismissal granted subject to stipulated jurisdiction of U.K. Court); Vargas v. General Electric Co., (This case in Maryland), supra (FNC dismissal affirmed subject to stipulations as to jurisdiction of Costa Rican court — see discussion at pp. 7-8 of this memorandum); Aguindo v. Texaco, 303 F.3d 470, 480 (2 Cir. 2002) (FNC dismissal subject to stipulations as to Ecuadorian jurisdiction); and Do Rosario Veiga v. World Meteorological Organization, 486 F.Sup. 2d, 308 n. 1) (S.D.N.Y., 2007) ("Conditional forum non conveniens dismissals are standard in the Second Circuit . . . for such conditions create the adequate alternative forum").

Plaintiffs challenge the availability of the courts of Costa Rica as an alternative forum because, they claim, Costa Rican law espouses a "doctrine of preemptive jurisdiction" whereby "[o]nce an action has been filed before foreign courts, the matter cannot be pursued before Costa Rican courts which would have no jurisdiction [over the defendant] . . . even if it expressly accepts to submit to the Costa Rican justice" (Affidavit of Professor Gaston Certdad Maroto, 7/16/08 ¶ III).¹³ In taking this position plaintiffs rely heavily on Canales Martinez v. Dow Chemical Company, 219 F.Sup.2d 719 (E.D.La, 2002), where the court held that Dow Chemical (whose products were alleged to have sterilized farm workers in banana-growing countries including Costa Rica) had failed to demonstrate an alternative forum in Costa Rica due to Costa Rica's lack of jurisdiction over a plaintiff's claims when the plaintiff has first filed his or her claim in another forum with competent jurisdiction. In fact, the court held initially that Costa Rican courts would have no subject matter jurisdiction over the cause of action under CRCC Article 46 giving Costa Rican judges jurisdiction" . . . (3) [w]hen the action originates from a fact that occurred or from an act practiced in Costa Rica." The court said, ". . . the action originates from acts undertaken, and decisions made, by the defendant companies at their highest levels in their corporate headquarters in the United States." Id., 726.

13 The parties agree that law of Costa Rica, as a civil law rather than a common-law jurisdiction, does not generally rely on binding judicial precedent. Hence both parties rely primarily on the affidavits of expert witnesses on the law of Costa Rica.

The Canales Martinez decision furthermore relies on Sections 318 and 323 of the "Code of Bustamante" which the court describes as "a treaty of international private law to which Costa Rica is a signatory" Id., 727. The court further explains: "Its provisions supplement Costa Rican law when there are gaps, and it actually supercedes Costa Rican law in cases where the two conflict." Id. ¹⁴

14 The Maryland Circuit Court disregarded the arguments under the Bustamante Code, since ". . . it is a treaty that CR and various other countries subscribe to. However, the U.S. is not a signatory to the treaty, so its provisions simply have no relevance to this case," citing the Maryland affidavit of GE's expert D. Baudrit Carillo. Mr. Baudrit Carillo has submitted the same affidavit to this court, but plaintiffs' expert Hernando Paris states that "international situations" are governed by the Bustamante Code (¶ 2.1) and that "[t]he Bustamante Code, in view of its nature, is ranked over regular laws, including the Code of Civil Procedure (¶ 2.2). Paris also quotes from Article 7 of the Political Constitution of Costa Rica that "Public treaties, international conventions, and concordats duly passed by the Legislative Assembly shall have a higher authority than the laws upon their enactment or from the day that they designate." Id. Other than references in the experts' affidavits neither party has specifically briefed or argued the applicability or non-applicability of the Bustamante Code to a potential civil action by these plaintiffs in a court of Costa Rica. Rather than decide that issue, I will treat Sections 318 and 323 of the Bustamante Code, as did the Canales Martinez court, as part of the law of Costa Rica that would be consulted by a Costa Rican court in determining its own jurisdiction to retain or dismiss a case that had previously been brought in the United States but dismissed on FNC grounds, and focus instead on the issue actually decided in Canales Martinez: even if Section 323 of the Code applies, would a Costa Rican court nonetheless have concurrent jurisdiction over the case if GE were to submit to jurisdiction there for purposes of a Costa Rican case brought by these plaintiffs?

Section 318 provides:

The judge competent in the first place to take cognizance of suits arising from the exercise of civil and commercial actions of all kinds shall be the one to whom the litigants expressly or impliedly submit themselves, provided that one of them at least is a national of the contracting State to which the judge belongs or has his domicile therein, and in the absence of local laws to the contrary. Id., 727

Section 323 provides:

Outside the cases of express or implied submissions, without prejudice to local laws to the contrary, the judge competent for hearing personal causes shall be the one of the place where the obligation is to be performed, and in the absence thereof the one of the domicile or nationality of the defendants and subsidiarily that of their residence. Id.

Since the action brought by Canales Martinez et al., whereby they submitted their claims to the jurisdiction of a federal court in Louisiana had no connection to a "contracting state" [which I take to mean a signatory state to the Code of Bustamante] (thereby not governed by Section 318), and since the non-contractual nature of the claims excluded any consideration of a locus of any "obligation . . . to be performed," the court held that the Canales Martinez case was governed by the final consideration under Section 323, namely that the judge competent to hear the case would be "the one of the domicile or nationality of the defendants." Since Dow Chemical was doing business in Louisiana, the federal court there reasoned that it had jurisdiction under Section 323 (and under the law of Louisiana and the United States). But FNC cases always originate in a court that has jurisdiction, the issue being whether or not another court, also with jurisdiction, would be the more convenient forum. The defendants argued, therefore, that a Costa Rican court would also have concurrent jurisdiction under Section 318 merely by having the plaintiffs "submit" the case in Costa Rica. The court agreed that this argument was facially correct, but trumped by overriding provisions of the CRCC:

And to a point, this argument is correct — the plain language of article 318 of the Code Bustamante reveals that by their submission, expressly or impliedly, to the jurisdiction of the Costa Rican courts, jurisdiction over plaintiffs' claims will attach. However, with respect to this particular case, the argument is flawed in two respects — it does not take cognizance of CCP's [same as CRCP] 122 and 477 (forbidding forced lawsuits) or of CCP 31 (concerning preemptive jurisduction).

CRCP Article 122 provides that "[e]xcept for an action of jacitation,¹⁵ nonbody can be forced to sue." CRCP Article 477 provides that "[n]obody can be forced to try to file a lawsuit." (English translations as quoted from Canales Martinez opinion at 728.) The court reasoned that if it were to dismiss the case with a return jurisdiction clause (dismissal conditioned on the case coming back to federal court in Louisiana if Costa Rican courts declined jurisdiction), ". . . the court would be forcing the plaintiffs to try to file the lawsuit in Costa Rica in violation of articles 122 and 477." The Canales Martinez court also relied on CRCP Article 31 which states: "[i]f there were two or more courts with jurisdiction for one case, it will be tried by the one who heard it first at plaintiff's request." Id. The federal court interpreted this to mean that, in effect, Costa Rica does not recognize the doctrine of forum non conveniens:

15 Black's Law Dictionary (Revised Fourth Edition) defines "jacitation" as "[b]oasting of something that is challenged by another . . .; a false boasting; a false claim; assertions repeated to the prejudice of another's right."

What is especially noteworthy about CCP 31 is that it is fatal to defendants' position even if the court has misconstrued the other Costa Rican articles discussed above . . . because, at a very minimum, there is concurrent jurisdiction in the United States and plaintiffs filed here first, the jurisdiction of the Costa Rican courts has been preempted. Id.

Relying on the "plain language of relevant Costa Rican legal provisions" and expert legal opinion provided by Canales Martinez plaintiffs, the court denied Dow Chemical's motion to dismiss on FNC grounds, and found affirmation in two decisions of the Costa Rican courts, declining to take jurisdiction of cases originally brought in the United States but dismissed on FNC grounds: Abarca v. Dow Chemical Company [no citation provided] and the Aguilar (Limon) case decided by the Second Civil and Labor Court of Limon on May 20, 1996. Both these cases will be discussed below.

This court agrees with the Maryland Circuit Court and the Court of Special Appeals that Canales Martinez case was wrongly decided and should not be followed. The several separate grounds for the Canales Martinez decision will be addressed.

CT Page 9836

Lack of Subject Matter Jurisdiction under CRCP Article 46

The notion (decided in Canales Martinez without reference to or citation of Costa Rican law) that Costa Rican Courts lacked subject matter jurisdiction of an action claiming the infertility of farm workers allegedly caused by a Dow chemical used and applied as a nematocide (insecticide used to control nematode parasites) on banana farms in Costa Rica because the action originated from acts and decisions made at Dow's corporate headquarters in the United States has been rejected by the Fifth Circuit Court of Appeals, (which includes the Eastern District of Louisiana where Canales Martinez was decided).¹⁶ Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003). In that case brought for injuries sustained in an automobile crash in Mexico allegedly caused by defective Bridgestone/Firestone tires, the court said, in affirming that Mexico was the more convenient forum: "The linchpin of plaintiff's argument — that the alleged wrongful act was the original design of the vehicle and tires — reaches back too far in the accident's causal chain. Identifying the situs of the wrongful conduct as an American designer's drawing board ignores the production, sale, and alleged failure of the product, which all occurred in Mexico." Id., 674. In fact, the Vasquez decision has caused another district court in the Fifth Circuit to comment that ". . . to whatever extent Canales Martinez was good law, it, perhaps has little or no continuing validity." Morales v. Ford Motor Company, 313 F.Sup.2d 672, 676 (S.D. Texas, Brownsville Div., 2004). In this case the cobalt radiation unit was located in a hospital in San Juan, Costa Rica where here it had been in active use for about four years before the over-radiation occurred. The replacement of the cobalt energy source took place in Costa Rica. All the over-radiated patients were Costa Rican citizens or residents. Certainly "the action originates from a fact that occurred or from an act practiced in Costa Rica" for purposes of the jurisdictional requirement of CRCP Article 46.

CRCP Articles 122 and 477 (Involuntary Litigation)

Going just on the plain language of the Articles, a dismissal of this Connecticut action with a return jurisdiction condition would not force or compel these plaintiffs against their will to commence litigation against GE in Costa Rica. The plaintiffs brought suit in Maryland.¹⁷ After that case was dismissed on FNC grounds and upheld on appeal almost four years ago, they felt no compulsion to commence suit in Costa Rica. Rather, they voluntarily commenced suit in Connecticut, first in the U.S. District Court and now in this court. On this point of involuntary litigation in Costa Rica, the Morales court, supra, expressed ". . . some doubt concerning the correctness of the Canales Martinez decision on this point." 313 F.Sup.2d at 676, and the Maryland courts rejected the reasoning and declined to follow Canales Martinez.

17 The court is disregarding the fact that many of the plaintiffs made claims in the Costa Rican court in the criminal/civil proceedings against Dr. Cabezas and CAJA, and some were awarded damages against CAJA, since GE was not a party to those proceedings.

This court concludes that a dismissal of this action on FNC grounds with a return jurisdiction clause would not violate Articles 122 and/or 427. The court agrees with defendant's expert Ricardo Vargas Hidalgo that:

These articles [122 and 477] stipulate that the prosecution of a judicial process is voluntary, meaning that no plaintiff may be forced to file or pursue a court case involuntarily. These provisions aim to prohibit the possibility that a plaintiff would be forced to file or pursue a claim or enforce a right if the plaintiff does not consider it appropriate or desirable. These provisions have nothing to do with the selection of the jurisdiction where the plaintiff intends to file his petition. These provisions do not give the plaintiff the right to file or pursue a claim in an unsuitable jurisdiction, nor do they prevent the possibility of filing a second petition in the correct jurisdiction . . . In effect these provisions do not prohibit the Costa Rican courts from hearing cases brought abroad and then dismissed on the basis of the U.S. doctrine of forum non conveniens.

Hidalgo Affidavit, 8/11/08 ¶ 21

It is also noted that Professor Alejandro M. Garro, who submitted an affidavit on behalf of the plaintiffs in Maryland and whose affidavit for the plaintiffs was relied upon by the court in Canales Martinez, has more recently said in an affidavit submitted by GE: "However, if those victims, willingly and freely, were to decide to bring their claims before the Costa Rican courts, no principle of Costa Rican law would bar plaintiffs — even those who did not bring [prior] claims in Costa Rica — from having their claims heard by a Costa Rican court if they were first dismissed by a U.S. Court on forum non conveniens grounds." Garro affidavit 8/16/08 ¶ 18.

CRCP Article 31 (Preemptive Jurisdiction)

Canales Martinez has likewise misconstrued CRCP Article 31. As the Maryland courts found, and this court concurs, Article 31 is a domestic Costa Rican venue rule. It has no application to cases originating in a foreign country. It is located in the chapter of the CR code (Chapter II, Title I, Book I applying to domestic issues, and Article 31 in particular is contained in the Part of the chapter entitled "Territory." Article 31 refers to territorial jurisdiction of the Costa Rican Judge, and is construed to resolve conflicts of competence between two Costa Rican judges who both have territorial jurisdiction. Hidalgo, Aff. ¶ 16. The plaintiffs' expert Hernando Paris does not disagree. He states in his affidavit of July 21, 2008, ¶ 2.1, that "Article 31 of the Code of Civil Procedure of Costa Rica applies only to proceedings before Costa Rican courts. It is not applicable to international situations . . ."

The Arbaca and Aguilar Cases

The Canales Martinez court found confirmation of its decision in two decisions of Costa Rican courts which reportedly had rejected jurisdiction over suits by Costa Rican plaintiffs against U.S. defendants which had been dismissed on forum non conveniens grounds by courts in the United States. In Arbaca v. Dow Chemical, supra, the Costa Rican case was dismissed by the trial court sua sponte, before Dow Chemical had even been served. Plaintiffs appealed the dismissal, which was not overturned on appeal because of the "technical defect" found by the appellate court in that the appealing party, the plaintiffs, actually desired the dismissal of the Costa Rican case, and therefore were not "aggrieved parties." The Aguilar (Limon) case, supra, referred with approval to Arbaca as authority for its decision.¹⁸ Especially in the context where both parties have urged upon this court the concept that legal precedent is unimportant as a source of law in Costa Rica, and the fact that these cases lack an adversary party advocating in good faith for retention of jurisdiction in Costa Rica, this court, as did the Maryland courts, declines to treat them as binding precedent or as confirming the Canales Martinez holdings.

18 This court has no copies of the decisions of either Costa Rican court. Aguilar's reliance on Arbaca is stated in the opinion Judge Hackner of the Circuit Court of Maryland for Anne Arundel County, p. 48.

Canales Martinez Incorrectly Decided

All of the "flaws" cited by the Canales Martinez court in the otherwise "correct" suggestion that the parties from the United States case dismissed on FNC grounds could "submit" to jurisdiction of a Costa Rican court which would then under Costa Rican law have valid concurrent jurisdiction over the case having been refuted (CRCP Articles 46, 122, 477, 31, and the Costa Rican judicial "precedent"), the suggestion of concurrent jurisdiction stands, whether or not the Bustamante Code applies to this case. The courts of Costa Rica are therefore available as an alternate forum to hear this dispute between the plaintiffs and GE.

This conclusion is confirmed by the events surrounding the attempt in 1997 to pass legislation in Costa Rica which would have deprived Costa Rican courts of jurisdiction over a case dismissed from a U.S. Court on CT Page 9839 forum non conveniens grounds. The Costa Rican Supreme Court was asked by the Legislative Assembly to report on the draft bill. The Supreme Court issued an advisory opinion that Costa Rica's courts not only had jurisdiction to accept such cases, but would be obliged to accept a petition that is within his [territorial] jurisdiction and that a plaintiff cannot claim before a U.S. court that his petition was or would be rejected in the Costa Rican venue. The opinion further advised that passage of the draft law would be necessary for a Costa Rican plaintiff to reinstate a U.S. case dismissed on FNC grounds with a return jurisdiction condition. (Hidalgo affidavit, ¶ 20, A-N.) The Legislative Assembly failed to pass the draft bill (¶ 20M) leaving the law of Costa Rica unchanged and as described by the Supreme Court confirming the jurisdiction of a Costa Rica judge to accept a case dismissed in the United States on FNC grounds. This is a conclusion which at least one of plaintiff's experts, Hernando Paris, seems to accept: "Although Costa Rican laws do not empower the national judges expressly to apply the principle of forum non conveniens, this does not prevent foreign judges to apply it at their court and establish if their court or a Costa Rican forum is the most convenient to hear a specific case. (Emphasis supplied.) (Paris affidavit, ¶ 1.2.) The underlined language is exactly the issue presented to this Connecticut court by the instant motion to dismiss, and, as Mr. Paris suggests, this court should now proceed to the issue of where the most convenient forum lies. Defendant has satisfied its burden of showing that an alternate forum is available in Costa Rica.

Adequacy of the Courts of Costa Rica.

An alternate forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute. Piper Aircraft v. Reyno, supra, 454 U.S. At 254, n. 22, citing Gulf Oil v. Gilbert, supra, 330 U.S. at 506-07; Fredriksson v. Sikorsky Aircraft Corp., 2009 WL 2952225 (D.Conn. 2009). This same standard applies in Connecticut courts. Picketts v. International Playtex, Inc., supra, 215 Conn. At 504, n. 13, citing Piper Aircraft. As the Picketts court said: "Ordinarily the alternative forum prerequisite will be satisfied if the defendants are amenable to service in another jurisdiction. Id. This case passes that initial test. This court can — as did the Maryland court — condition any FNC dismissal on GE's stipulation to submit to jurisdiction in Costa Rica. This court has also determined, above, in its discussion of the Canales Martinez case, that a Costa Rican court would not be prohibited under the law of Costa Rica from accepting GE's submission to its jurisdiction."

Piper Aircraft and Picketts recognize, however, that there may be instances where a court must engage in a more meaningful assessment of the suitability of the alternative forum. "Federal authorities generally limit the threshold inquiry of the adequacy of the alternate forum to those rare instances where the differences in substantive law are so severe that the inadequate remedy provided by the alternative forum effectively precludes any remedy at all." Picketts, 215 Conn. at 505-06. The plaintiffs claim that this case is one of those rare instances where the remedy offered by the other forum is clearly unsatisfactory. They claim in their memorandum: (1) the lack of a way to take the depositions of unwilling witnesses located in the U.S. and France; (2) unreasonable delays in getting civil cases tried and disposed of; (3) lack of equipment or experience to handle mass disaster, negligence, and product liability cases such as this one; (4) the absence of complete independence of the Costa Rican judiciary; and (5) ". . . many of the plaintiffs [who sought compensation from CAJA in the criminal/civil litigation in Costa Rica] got much less compensation than that to which they were entitled." (Pl. Initial Response, p. 6.) The first four claims are the same claims of inadequacy raised unsuccessfully by these plaintiffs before the Maryland courts.

This court has independently reviewed the claims of inadequacy and finds them lacking. Going back to the threshold test, GE would be amenable to process in Costa Rica because it has consented to an order of dismissal conditioned on the GE's consent to waive any personal jurisdiction objections and Costa Rica's acceptance of jurisdiction over the case. An agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy the alternative forum requirement. Orkiwan v. Texaco, Inc., 303 F.3d 470, 476-77 (2Cir., 2002); Picketts, supra, 215 Conn. At 499. See also Lake v. Bayer Corporation, Docket No. X10 CV05-5001416S, Superior Court, Complex Litigation Docket at Waterbury (December 22, 2006, Munro, J.) [ 42 Conn. L. Rptr. 621] (FNC dismissal granted subject to conditions including the conditions that the defendant consent to jurisdiction in the U.K. and accept service of process in connection with an action in the U.K.). It is also clear that a Costa Rican court would have subject matter jurisdiction over the causes of action pleaded in the complaint in this case (negligence, gross negligence, strict product liability, breach of implied warranty of merchantability, breach of express warranty, and fraud). This is evident primarily from the fact that the substantive counts of the complaint are pleaded based on the law of Costa Rica as evidenced by citations to the CRCC in the Connecticut complaint. It is also evident from the fact that many of these plaintiffs have already sought, and some have been awarded, damages against CAJA. Furthermore, the court accepts the opinion of defendant's expert Ricardo Vargas Hidalgo who states in his affidavit that:

According to Costa Rican law, any person who causes or contributes to the cause of an injury or damage is responsible, and must respond economically for his conduct. (¶ 10); . . . according to Costa Rican law, the Costa Rican Judge is competent to hear (i.e. has jurisdiction to adjudicate) claims against foreign companies and individuals for acts and events that occurred or were allegedly performed in Costa Rica, such as those explained to me as being alleged by the plaintiffs in the Connecticut Case. A Costa Rican Judge is competent (i.e. has jurisdiction) in a lawsuit against General Electric Company and Mr. Jessilonis based on the claim that they negligently repaired in Costa Rica the radiotherapy equipment that caused injury, as it was explained to me that it was claimed in the Connecticut Case. (¶ 14.)

As to the latter point, the court has previously discussed the territorial jurisdiction of a Costa Rican Judge under CRCC Article 46 at page 23-24 of this memorandum in discussing the availability of Costa Rican courts and the Canales Martinez case. It must also be noted that the availability of an adequate forum does not depend on the existence of the identical cause of action in the other forum, nor on identical remedies, Fredriksson, supra, citing Norex Petroleum, Ltd., supra, 416 F.3d at 15; and that a remedy is inadequate for FNC purposes when it amounts to "no remedy at all." Piper Aircraft, supra, 454 U.S. at 255.

Plaintiffs' first claim of inadequacy — the lack of a way to take the depositions of unwilling witnesses located in the U.S. and France — is blunted to a large extent by this court's ability to condition any FNC dismissal order on GE's making available any documents or witnesses within its control.¹⁹ As to any U.S. or French witnesses not within GE's control, the court finds that Costa Rican courts can compel both "advance testimony" (depositions) and trial testimony of foreign witnesses:

19 See Fredrikkson v. Sikorsky Aircraft, supra, where the District Court dismissed the case on FNC grounds finding that Finland was the more appropriate forum. The order of dismissal was conditioned, inter alia, on the requirement that: "defendants make available for discovery and for trial, at their own expense, any documents or witnesses, including retired employees, within their control that are needed for a fair adjudication of the plaintiffs' claims." Id. at *18.

It is also possible to obtain the advance testimony of a witness in the cases set forth in article 250 of the Code of Civil Procedure.

Paragraph Two of this article describes the hypothesis in which it is possible to receive advance declarations for witnesses that may be admitted as evidence in a court, including: . . . (b) when the witness is absent from Costa Rica indefinitely . . .

In addition the judge may request the help of the consulates of Costa Rica abroad to receive witness declarations; pursuant to our laws and practice, the consuls have authority to help national courts in receiving evidence.

Baudit Carrillo affidavit, 8/11/08, ¶ 1(3)(b).

The provisions of the Code of Civil Procedure contemplates the acquisition and use of evidence abroad, for example, in the United States. Article 364 of the Code of Civil Procedure allows a judge to send a letter rogatory to a foreign authority, asking it to take an extrajudicial declaration from a foreign witness or a witness domiciled abroad. The testimony obtained in this manner is considered valid evidence in Costa Rica.

Id., ¶ (4).

Although he describes these procedures as "very slow and cumbersome," plaintiffs' expert Hernando Paris does not dispute that they are available to a civil litigant under the laws of Costa Rica. (Paris affidavit, 7/15/08, ¶ 1.3.)

The second claim of inadequacy alleges unreasonable delays in getting civil cases heard and resolved in Costa Rica. This is addressed in the Paris affidavit where he states that civil proceedings in Costa Rica are essentially in writing and "This factor, as well as the judicial delay, cause civil suit to take several years, even ten or more." (¶ 1.3(b).) He then explains that when the defendant is a foreign company, there are inherent delays for gathering "extraordinary evidence" or interpreting documents, or having evidence not in the Spanish language interpreted into Spanish. Those later delays would occur even if the case were tried in Connecticut, but to a greater magnitude, since it seems clear from the court's knowledge of the case and the evidence that there would be a much greater need for translating Spanish to English than the opposite. As far as the claimed slow process of trials in Costa Rica there are also factors in Connecticut that could cause delays the trial of this case, such as the great number of depositions that would have to be taken in Costa Rica and our unique procedure of individual voir dire in jury selection. The court also notes, on the subject of delay, that the plaintiffs did not bring suit in Maryland until January 3, 2003 which more than six years after the occurrence of the 1996 over-radiation. Plaintiffs cite Bhatnagar v. Surrendra Overseas, Ltd., 52 F.3d 1220 (3 Cir. 1995), for the proposition that this kind of delay can render a forum inadequate. That case, however, lends no support to plaintiffs' arguments here. The Bhatnagar court affirmed the district court's holding that India was not a adequate forum because "its court system was in a state of virtual collapse" and "it could take up to a quarter of a century to resolve this litigation if it were filed in India." Id. at 1226-27. Here the plaintiffs have identified nothing suggesting that Costa Rican courts face the type of crisis described in Bhatnagar; indeed lengthy delays are less likely because the Costa Rican courts have already developed a full factual record regarding the underlying facts in conjunction with the indictment and trial of the criminal charges against Dr. Cabezas, the civil claims against CAJA by many of these plaintiffs, the appeal, and the ongoing followup civil proceedings following remand from the Supreme Court.

The third claim of inadequacy — lack of equipment or experience to handle mass disaster, negligence, and product liability cases such as this — is unsupported by any evidence and it belied by the completion of the very complex criminal/civil proceedings and appeal in the courts of Costa Rica following the over-radiation incident.

The fourth claim of inadequacy relates to the alleged "absence of complete independence of the Costa Rica judiciary." Plaintiffs describe the criminal/civil proceedings in the Costa Rican courts after the 1996 incidents (still pending as to some of the civil claims) as a "debacle." Plaintiffs refer the court to the affidavit of their expert "Antonio Gomez Cortes" on this point. (Plaintiff's Initial response, p. 22.) No affidavit of that person has been submitted, although the court takes notice that the July 18, 2008 affidavits of Dr. Gaston Certad Maroto and Hernando R. Paris were both acknowledged before a "notario" named Gomez Cortes. The court has therefore reviewed those affidavits on this point but finds no support whatsoever for the "debacle" characterization. Both parties have directed the court on this point to the United States Department of State's Costa Rica "Country Report on Human Rights Practices — 2007" released March 11, 2008. That document states unequivocally at page 2, ¶ e (the exact section cited by plaintiffs in their memorandum) that: "The constitution provides for an independent judiciary, the government generally respected judicial independence in practice . . ." "[t]here is an independent and impartial judiciary in civil matters where lawsuits, including human rights violations, are brought. Administrative and judicial remedies for alleged wrongs are available." The court has reviewed the 110-page translated excerpts of the opinion of the Costa Rican trial court (the defendant states that the full opinion was 750 pages in length) and the full translated opinion of the Supreme Court of Costa Rica, and I find no indication of interference with the judicial process. The decision made and subsequently affirmed in part and overruled in part is based on the facts as supplied by the testimony of multiple witnesses, the testimony of multiple experts, and the law of Costa Rica. Plaintiffs direct the court to the remarks of the Canales Martinez court commenting on the inadequacy of the judicial systems of Honduras and the Philippines (where the Dow chemical had also been used on banana farms) but fail to quote the court's remarks on the judicial system of Costa Rica by which it accepted the findings of the State Department's 2001 Country Report which contradicted the expert opinion of Mr. Garro which had been presented on the issue of adequacy by the plaintiffs in that case: "Costa Rica has one of the more independent advanced, judicial systems in Latin America." 219 F.Sup. at 735. The Maryland Circuit Court found likewise ("The CR judicial system appears to be reliable, impartial, and capable of handling Plaintiffs' case . . . CR courts are open to foreigners and they have the authority to issue binding rulings"). Other cases that have found the courts of Costa Rica are adequate for FNC purposes are Tingley v. Banks, 232 Fed.Appx. 956 (11 Cir. 2007); Proyectos Orchimex de Costa Rica S.A. v. E.I. DuPont de Nemours Co., 896 F.Sup. 1197, 1201 (M.D.Fla. 1995); Delgado v. Shell Oil Co., 890 F.Sup. 1324, 1356-59 (S.D.Tex 1995), aff'd 231 F.3d 165 (5 Cir. 2000); Rojas v. DeMent, 137 F.R.D. 30, 32-33 (S.D.Fla. 1991); and Cabalceta v. Standard Fruit Co., 667 F.Sup. 833, 837-39 (S.D.Fla. 1987), aff'd in relevant part, 883 F.2d 1553 (11 Cir. 1989).

The fifth claim of inadequacy goes to the claimed inadequacy of the compensation some of the plaintiffs were awarded by the Costa Rican court in their civil claims against CAJA. Aside from the fact that CAJA has been described as the "social security administration" of Costa Rica and the claims against CAJA have been described by the plaintiffs as "claim[s] for social security benefits"²⁰ which may or may not be measured as compensatory damages for their injuries, it is well established that an unfavorable change in the law occasioned by adjudication in a foreign forum generally is not a relevant factor in the forum analysis. Piper Aircraft, supra, 454 U.S. at 250. Moreover, the comparative amount of recovery obtainable in the alternative forum has never been considered a factor relevant to the FNC inquiry. Neo Sack, Ltd. v. Vinmar Impex, Inc., 810 F.Sup. 829 (S.D. Tex. 1993), citing Pain v. United Technologies Corp., 637 F.2d 775, 794 (D.C. Cir. 1980), cert. denied, 454 U.S. 1128 (1981).

20 Plaintiffs' Initial Response memorandum, p. 6.

Clearly the defendant has shown that plaintiffs would have available remedies in Costa Rica and that the Costa Rican courts are not inadequate for FNC purposes.

( 2) Balancing of Private Interest Factors

Before engaging in a examination and balancing of the relevant private interest factors identified by Gulf Oil Corp. as confirmed by Durkin, the court must resolve the issue as to the strength of the presumption that plaintiffs' choice of forum in the Connecticut Superior Court should be honored. The general rule is that the doctrine of forum non conveniens is to be applied only in exceptional circumstances and that the forum non conveniens analysis must give substantial deference to the plaintiff's choice of forum. Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Durkin v. Intervac, Inc., supra, 258 Conn. at 464-65.²¹ But typically the greatest deference is afforded a plaintiff's choice of its home forum, while less deference is afforded a foreign plaintiff's choice of a United States forum. Norex Petroleum, Ltd. v. Access Industries, 416 F.3d 146, 153 (2 Cir. 2005); Piper Aircraft, supra, 454 U.S. at 255-56. Following this principle the Durkin court explained its reference to a "weakened presumption against disturbing" the plaintiff's initial choice of forum: "When, as in the present action, the plaintiffs are foreign to their chosen forum, the trial court must readjust the downward pressure of its thumb, but not remove it altogether from the plaintiffs' side of the scale." Id. at 465. Connecticut courts agree that "[w]hile the weight to be given to the choice of a domestic forum by foreign plaintiffs is diminished, their entitlement to a preference does not disappear entirely." Id. "The defendants challenging the propriety of this choice continue to bear the burden to demonstrate why the presumption in favor of [the plaintiffs'] choice, weakened though it may be, should be disturbed." Id. "Wisely, it has not been attempted to catalogne 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 . . ." Gulf Oil, 330 U.S. at 508. "Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum . . . especially in the somewhat unusual [situation in which] it is the forum resident who seeks dismissal." Durkin, 258 Conn. at 465. "[T]he ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice." Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947).

21 In Liaw Su Teng et als v. Skaarup Shipping Corp et al., 743 F.2d 1140 (5 Cir. 1984), called to my attention by plaintiffs on another point to be discussed, the court said, as to this point: "This rule is well settled even though we are not so ingenuous as to suppose that the plaintiff's choice is made for either altruistic or idealistic motives. As we have recently noted, `As a moth is drawn to light, so is a litigant drawn to the United States, not merely for illumination, but in search of a wider choice of remedies, a more favorable set of procedures, and a larger award.'" Id. at 1147-48.

Although virtually all the persons named in the complaint in this case are or were at all relevant times residents of Costa Rica, plaintiffs claim the benefit of the full weight of the strong presumption in favor of their present choice of a Connecticut forum because three of the 272 persons named as plaintiffs in the complaint are alleged to be residents of the United States. They are (1) Franco Salas, alleged in ¶ 17 to be a United States resident and alleged in Counts XLIX (wrongful death) and LI (loss of consortium) to be the son of decedent Digna Campos: (2) Vilma Cordero, alleged in ¶ 31 to be a United States resident and alleged in Counts LXXVII (wrongful death) and LXXXIX (loss of consortium) to be the daughter of decedent Hernan Cordero; and (3) Arturo Di Bagloini, alleged in ¶ 31 to be a United States resident and alleged in Counts LXXVII (wrongful death) and LXXXIX (loss of consortium) to be the son of decedent Hernan Cordero. There are two fatal flaws with this argument. First and foremost these three alleged United States residents are simply not "plaintiffs" in this case. They are persons named in a filed complaint, but they are not among the plaintiffs named in the summons that was served on GE and returned to this court (all 99 of whom have a listed address of simply "Costa Rica"). A person named in a complaint and even in the caption of a case is not a party plaintiff if he or she is not named and listed as a plaintiff on the summons served on the defendant. A writ of summons ". . . is an essential element to the validity of the jurisdiction of the court." Hillman v. Greenwich, 217 Conn. 520, 526 (1991). See also Booker v. Jajura, 120 Conn.App.1 Fn* (2010). The only way Franco Salas, Vilma Cordero, and Arturo Di Bagloini can be considered valid plaintiffs in this case would be for them to be named on an amended or supplemental summons as parties plaintiff, and then serve that amended or supplemental summons on the defendant pursuant to Conn. Gen. Stat. § 52-72 and return that process to court. Christina Zuccari et al. v. Antares Yale Towne, SPE, LLC et al., Docket No X-08 CV06-5002096S, Superior Court, Complex Litigation Docket at Stamford (June 12, 2009, Jennings, J.) [ 47 Conn. L. Rptr. 813]. Secondly, even if they were to become properly documented as plaintiffs in the case, their interest in this litigation is too remote to invoke the full presumption favoring their choice of forum. None of them claim to be persons who were over-radiated at the Hospital San Juan de Dios in Costa Rica. They are sons and daughters of deceased patients of the hospital alleged to have been over radiated. They claim wrongful death and loss of consortium damages indirectly and derivatively through their deceased Costa Rican parents. Such plaintiffs are not entitled to the full presumption. Because of their indirect standing, they merit only the "readjusted downward pressure of the thumb" — the "weakened presumption" favoring their choice of forum. This is evident from a close examination of the leading cases. Piper Aircraft v. Reyno, supra, arose out the crash of a Piper Aztec aircraft in Scotland. The plaintiffs were the estates of the pilot and five passengers killed in the crash, all residents of Scotland. The Supreme Court held that the rule affording less deference to a foreign plaintiff's choice of forum was correctly applied by the trial court, even though the administrator of the estates of the five deceased passengers, the named respondent, Gaynell Reyno, was the legal secretary of the California lawyer who filed the lawsuit ( 454 U.S. at 239) — obviously a resident of the United States. The administrator's place of residence was not a factor. It was the place of residence of her decedents which determined the amount of deference afforded to the choice of forum. The exact same situation is presented in Connecticut's Durkin case which arose out of a collision of two military helicopters in Australia killing eighteen Australian military personnel and injuring seventeen. The plaintiffs were the injured personnel and the estates of the deceased personnel. The court held that since ". . . the plaintiffs are foreign to their chosen forum, the trial court must readjust the downward pressure of its thumb . . ." 258 Conn. at 465. This was so even though the plaintiff administrator c.t.a. of the estates of the eighteen deceased victims was named plaintiff Mark C. Durkin who is listed on the Judicial Branch website (of which this court takes judicial notice) as a Connecticut attorney practicing here in Stamford. Once again it was the place of residence of the actual parties in interest, not the residence of the representative plaintiff, the administrator of the estates, which determined the strength of the presumption favoring the choice of forum.

For these reasons the court will proceed to balance the private interest factors and the public interest factors of forum convenience affording the plaintiffs, as foreigners to their chosen forum in Connecticut, a weakened presumption that their choice of forum should be honored. The defendant GE still bears the burden to demonstrate why the presumption favoring the plaintiffs' choice of forum should be disturbed. Id. ²²

22 In Iragorri v. United Technologies Corp., 274 F.3d 65 (2 Cir. 2001), the Second Circuit established for the federal courts under its jurisdiction a multi-pronged test to determine on a sliding scale the degree of deference to be afforded to a plaintiff's choice of a U.S. forum. The factors against dismissal include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience and expense. Factors indicative of dismissal include plaintiff's forum shopping motivation — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum. 274 F.3d at 72. The Iragorri test has not been adopted in Connecticut, and this court has not done a step-by-step Iragorri analysis. Many of the Iragorri factors overlap with the ultimate private interest factors. But, to the extent they are applicable to this case, many of those same factors have been considered, and I believe that the conclusion I have reached about the degree of deference to be afforded to the plaintiff's choice of this forum would not differ substantially under an Iragorri analysis. See, e.g. Melares v. Sikorsky Aircraft Corporation, 613 F.Sup.2d 231 (D.Conn. 2009) where Judge Hall did a detailed Iragorri analysis on a case very similar to this and concluded that "plaintiffs are entitled to some degree of deference in their choice to bring their suits in the District of Connecticut. While this deference is important, it is less deference than plaintiffs would have been given if they were not foreign plaintiffs." Id., 245.

The private interest factors to be considered are the so-called " Gilbert factors": (1) the relative ease of access to the sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious, and inexpensive. Durkin, supra, 454 Conn. at 467, citing Gilbert, supra, 330 U.S. 508. "A court must examine each of these factors in turn, keeping in mind that, consistent with the flexibility necessary in a forum non conveniens analysis, no single factor should be given undue weight." (Citation omitted.) Id.

Relative Ease of Access to Sources of Proof

Once again, there is a threshold issue to be resolved before addressing the merits. Plaintiffs claim that the court should not rule on this motion but should defer decision, and order the defendant "to satisfy [its] burden to produce an informative summary of what each witness would testify to at trial." They cite Reid-Walen v. Hansen, 933 F.2d 1390 (8 Cir. 1991), in support of this claim. The court finds that plaintiffs have over-stated the amount of information that the party seeking FNC dismissal must submit. The moving defendant in Reid-Walen (injuries sustained by a Minnesota resident from a boating accident in Jamaica) had submitted to the district court a short conclusory statement that "[a]ll of the occurrence witnesses except plaintiffs reside in Jamaica and it would be prohibitively expensive to obtain their attendance in Missouri." Id. at 1396. In reversing the FNC dismissal the circuit court held in a 2-1 decision that the defendants had failed to submit any information or affidavits to support their conclusory allegations, noting that "[t]he record does not indicate whether the driver of the boat that hit Reid-Walen has ever been identified;" and "[t]he record also does not reveal if Jamaican authorities ever investigated this accident, whether a report was made, or whether their testimony would be needed." Id., 1396-97. In this case GE has submitted witness identification and expected testimony — to be discussed below — which is exponentially more detailed than the very basic facts and roles found to be missing in Reid-Walen. As the circuit court recognized:

The Supreme Court has held that a defendant moving for dismissal based on forum non conveniens "must provide enough information to enable the District Court to balance the parties' interests" although it need not submit overly detailed affidavits to carry its burden. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 238, 102 S.Ct. 252, 267, 70 E. Ed.2d 419 (1981).

Id., 933 F.2d 1390 fn.3.

This issue also came up in Durkin. At the trial level the Superior Court held that the defendants had not sufficiently established that the key witnesses to the case would not be available for trial in Connecticut. "Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material." Durkin v. Intervac, Inc., No. CV99-0173444S, Superior Court, Judicial District of Stamford/Norwalk at Stamford (July 17, 2000, D'Andrea, J.), 2000 Ct.Sup. 9203, 9207; 27 CLR 555. The court particularly relied on its finding that the defendants had failed to give a statement as to why each of the 144 witnesses listed in the Australian military board of inquiry report would be necessary at trial. In reversing the FNC dismissal the Supreme Court noted that a motion for dismissal on FNC grounds by necessity must be heard on a record that is less specific than the court would require for a trial on the merits and approved of the defendant's submission which consisted primarily of excerpts from the board of inquiry report: `We conclude that the defendants' presentation of this information to the trial court was sufficient to meet the minimum standards for placing a trial court on notice that there are `crucial witnesses [who] would be beyond the reach of compulsory process'" (citing Piper Aircraft). Durkin, 258 Conn. at 473-74.

This court has sufficient information on the sources and availability testimony and documents to assess the relative ease of access to sources of proof. The evidence at the trial of this case can generally be broken down into liability, causation, and damages. The causation and damage evidence is all in Costa Rica. Each of the 100 or more overradiated patients was being treated by cobalt radiation for an underlying cancer. All of the evidence of their cancer treatment, the amount of radiation they received, their post-radiation symptoms and treatment, their reactions to that treatment, their injuries, pain and disabilities would have to come — on an individualized basis — from their treating Costa Rican physicians and from the therapists and other personnel at Hospital San Juan de Dios. Since these events took place fourteen years ago those witnesses would largely be consulting and relying on charts and records of the medical practices and the hospital in Costa Rica. There could in some cases be an issue of causation, particularly as to the wrongful death claims of patients who died some time after being over-radiated. All evidence of the cause of death would come from witnesses and autopsy records in Costa Rica. Plaintiffs downplay this factor by suggesting that there would be "test case" trials in this court of a small number of claims followed by a mediated settlement of all remaining claims. Although plaintiffs' counsel successfully used that procedure in an air crash case in the state court of California, there is no assurance that such procedure (which would have to be by stipulation of all parties with the consent of the presiding judge) would be followed here. This court cannot decide this motion by assuming that almost all the claims will be settled by mediation. Plaintiffs also oppose the impact of all causation and damage evidence being centered in Costa Rica by stipulating²³ that they will pay the travel expenses for defense counsel to go to Costa Rica to depose all plaintiffs living in Costa Rica, all relevant Costa Rican lay witnesses, and "treating doctors, Dr. Cabezas, and the legal experts." In their memorandum of May 26, 2009 plaintiffs further represent that they will pay travel costs to Costa Rica for defense counsel to depose CAJA witnesses "if Defendants demonstrate to this court that any of those witnesses are `qualified' as causation experts" (p. 14) and that the plaintiffs will pay the costs of bringing a "small number" of test-case plaintiffs to Connecticut for trial. Citing Irish National Insurance Co. v. Aer Lingus Teoranta, 739 F.2d 90 (2 Cir. 1984) plaintiffs claim that their neutralization of defendant's travel costs by stipulation "make it almost compulsory" that this FNC motion be denied. The court feels no such compulsion. The District Court's FNC dismissal in Aer Lingus was reversed because of certain provisions of the Warsaw Convention and a "Treaty of Friendship" between the United States and Ireland, and the Second Circuit's finding that the major factual issues concerned Acts or events that occurred at Kennedy Airport in New York. The comment that "[i]n view of the fact that appellee's planes fly regularly between New York and Ireland, we do not share the district court's concern about the possibility that appellee's counsel might have to fly to Ireland to take testimony, especially since appellant has indicated its willingness to pay the expense of such attendance" ( Id. at 92) was not a basis of the reversal, since the appellate court had already determined that the condition of the package when delivered to Aer Lingus in Ireland ". . . will be a relatively simple matter for appellant to prove." Id. Aer Lingus does not support the proposition that plaintiffs in this court claiming damages for personal injuries and loss of life which occurred in an alternate forum can avoid a dismissal on FNC grounds by stipulating to pay the travel expenses of counsel to depose important causation and damage witnesses in the alternate forum and then present that evidence here in the form of translations of their deposition testimony, as compared to live in-person testimony in their native language if the trial were held in the alternate forum. "Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on depositions, is to create a condition not satisfactory to court, jury, or most litigants." Gulf Oil Corp. v. Gilbert, supra, 511. Any suggestion in Picketts v. International Playtex, Inc., supra, that the advent of videotaped depositions has changed that result was laid to rest by our Supreme Court eleven years later in Durkin, where the court reiterated the foregoing quote from Gulf Oil in holding that " Picketts should not be read to support the proposition that technology has replaced the need for personal attendance of witnesses." 258 Conn. at 476. The plaintiffs' willingness to pay travel costs for defendants to depose Costa Rican witnesses for use in a Connecticut trial does not alter the fact that the causation and damages evidence, which potentially consists of hundreds of witnesses and a multitude of documents, all in Spanish, weighs heavily toward Costa Rica as the most convenient forum.

23 Stipulations are made in the Affidavit of Atty. Benson Musslewhite signed on July 14, 2008 and attached to Plaintiffs' Initial response memorandum opposing this motion.

The defendant has provided a substantial declaration of the evidence on liability. In addition to providing an affidavit of counsel and answering production requests and requests to admit in Maryland, defendants have submitted in this Connecticut case the "Declaration of William E. McDaniels" dated August 18, 2008 in which Atty. McDaniels summarizes the extensive evidence in Costa Rica concerning the unit, its condition before and after the incident, the head replacement, the docimetric calculations of Dr. Cabezas, the discovery of his errors, the unit's inspection, testing, and return to service after the over-radiation incident, expert reports, and the records of the Costa Rican court proceedings that investigated the incident and determined civil actions against Cabezas and CAJA, and the Costa Rican court finding that Dr. Cabezas was the sole cause of the over-radiation of the plaintiffs. Atty. McDaniels further attested that none of the foregoing evidence would be subject to the compulsory process of this court. Thereafter this court gave permission for the plaintiffs to conduct additional discovery in the form of a "designated knowledgeable person" deposition of Atty. Robert H. Klein, who was the assistant General Counsel of GE Medical at the times relevant to the allegations made in this case. Atty. Klein was questioned by plaintiffs' counsel for about three hours on March 27, 2009 and gave extensive information about the identity and location of witnesses and documents, including discussion of GE personnel and their roles in these events or the post-event investigation, and location of known documents. At that deposition defendant's counsel turned over a binder (Klein Depo. Ex 2) of approximately 200 or more pages which consists of:

(1) a seven-page single spaced summary entitled "Potential Witnesses in Vargas v. GE" which lists a) sixteen lay witnesses (Nirvana employees and hospital employees) with knowledge of the events surrounding the cobalt head replacement and the over-radiation incident, the known location of each witness (all in Costa Rica), the expected areas of testimony of each witness, and page references to their testimony before the Costa Rican court;

(2) a three-page summary entitled "Location of Documents Related to Vargas v. GE Litigation" describing all known documents by source, subject matter and location and privileged status.

(3) a sworn declaration of Catherine N. Price, an employee of GE Healthcare (formerly GE Medical) responsible for the storage and maintenance of legal documents, summarizing her knowledge and GE Medical personnel and documents and their present locations.

(4) Another copy of Atty. McDaniels' 2008 Declaration;

(5) A Copy of the January 5, 2004 Declaration of Suzanne Cartwright (GE Medical employee responsible for storage and maintenance of legal documents) filed in the Maryland litigation attaching and certifying to copies and translations of documents from the Costa Rican judicial proceedings investigating the over radiation incident including statements of the three Nirvana employees, portions of the indictment of Dr. Cabezas, and portions of the Costa Rican court record that include references to GE and the cobalt head replacement; and

(6) copies of GE's and Mr. Jessilonis's responses to discovery requests filed by the plaintiffs in the Maryland case.

During the Klein deposition several names of former GE employees came up but Atty. Klein (himself also a former employee at that point) was unaware of their present locations. GE's counsel invited plaintiffs' counsel to submit questions regarding identity or location of any GE personnel and research would be done to get the answers. Plaintiffs' counsel did submit a list of questions, and GE responded with a listing of 38 individuals, or positions, giving current known location information. That response was marked as Deposition Exhibit D and a copy is attached to the McDaniels declaration.

The court has reviewed all of the foregoing information as to evidence which might be adduced at a trial of this case, and has evaluated it quantitatively and qualitatively. By a wide margin, the weight of the evidence relating to the over-radiation incident and the cause thereof is lodged in Costa Rica. This includes, obviously and most significantly, the large body of evidence gathered by the Costa Rican court in connection with its investigation and the indictment it handed down, as summarized in its 750-page opinion. The testimony of Dr. Cazebas and several other hospital employees who had direct contact with the operation of the Alcyon II unit before and after the incident would be crucially important as would the testimony of the hospital administrators concerning the discovery of the over-radiation and their reactions and discoveries. All three Nirvana employees who assisted Edward Jessilonis in replacing the cobalt head have given statements and are available to testify in Costa Rica, as are six expert witnesses who testified before the Costa Rican court. At this point, they all must be treated as significant potential witnesses. Other Costa Rican witnesses would include CAJA officials, CIS-Bio representatives, and representatives of the public ministry or Justice Department of Costa Rica. Plaintiffs suggest that the testimony of some of these witnesses should be discounted as "cumulative" but that is a discretionary decision to be made by the trial court. The only significant U.S. witness as to the incident itself would have been Edward Jessilonis who was not a witness at the Costa Rican proceeding. He lived in Maryland and was available at the time of the Maryland lawsuit, but has since died without leaving any known non-privileged statement.²⁴ He has never lived in Connecticut, nor is there any record of his ever having been present in Connecticut. Former employees of GE Medical who have been identified as possible witnesses include David Ferguson now living in Salt Lake City, Utah (Edward Jessilonis's supervisor in 1996) and Ahmad Hussein (performed an audit of the condition of the unit in the summer of 1996) now believed to be living in New Jersey. Other GE Medical employees who might have been aware of or involved in the head replacement in Costa Rica are located Maryland, Florida, or Wisconsin. The only GE Medical possible witness now living in Connecticut are John Trani, former CEO of GE Medical now working for a Connecticut company and residing in Farmington, and Keith Sherin, former CFO of GE Medical who now lives in Fairfield, but there is no indication in the GE disclosures or otherwise that either of them had any direct involvement in this incident.

24 Atty Klein testified (Tr. 72) that Atty. McDaniels interviewed Mr. Jessilonis about this incident and took some notes which Atty McDaniels (present at the deposition) claimed as attorney work product. Atty. Klein also spoke with Mr. Jessilonis once by telephone at the time of the 1996 incident and took some notes which are in GE files at the U.S. headquarters of GE Medical in Wisconsin. Those notes are also claimed to be protected as attorney work product. (Tr. 76-77.)

Plaintiffs claim there are other GE witnesses in Connecticut who would testify as to the training and supervision of Mr. Jessilonis, and the safety policies of GE Medical with regard to radioactive materials. Atty. Klein testified that GE Medical had a safety and regulatory engineering department in Wisconsin that had promulgated certain general written policies and procedures related to safety matters (Tr. 99), but they would not have related to the Alcyon unit or the method a changing a head. (Tr. 101.) He identified Jim Howard (still in Wisconsin) and Larry Kroger (current residence not requested or supplied) as possible members of that department in 1996. (Tr. 103.) By using platitudes such as "The buck stops here" and "All roads lead to Rome" and referring to the "monolithic structure" of GE whereby most business is conducted through autonomous divisions of one large corporation, rather than through subsidiary companies, plaintiffs suggest that there must be evidence in Fairfield, Connecticut at the GE world headquarters which would relate to this suggestion of corporate negligence (which is pleaded in very unspecific terms in the complaint) and that the CEO of GE, then Mr. Jack Welch (former Connecticut resident now living in New York and Boston) and presently Mr. Jeff Immelt (residing in Fairfield) must have knowledge. There is no evidence, however, to support this hypothesis. Atty. Klein testified that a "risk assessment" investigation following this incident was conducted by a GE CGR safety and regulatory engineer in France, and a report of the result of that investigation was circulated The original would be on file in Buc, France, the headquarters of GE's radiotherapy business, with a copy in GE Medical U.S. headquarters in Wisconsin. (Tr. 182-83.) "It would not be in Connecticut." (Tr. 184.) Any decision to take any corrective action to improve upon the safety in that kind of situation would have been taken by John Oliver, the global leader of GE Medical's radiotherapy business in France, who probably would have reported to Mr. Trani as CEO of GE Medical in Wisconsin.

The claim of evidence in Connecticut of corporate negligence relating to the replacement of the cobalt head energy source in Costa Rica is sheer speculation. There is simply no indication that any such evidence exists in Connecticut, or, for that matter, anywhere else. It is undisputed that the Costa Rican judicial inquiry found that the erroneous docimetric calculations of Dr. Cabezas were the sole source of the over-radiation and, after corrected doses were calculated, the Alcyon II unit was cleared to return to service without further incident. In assessing the weight to be accorded to claims of evidence to be placed on the scales as part of the FNC balancing process, a court must ". . . determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the [plaintiff's] cause of action." Durkin, at 468. (Evidence of defective Blackhawk helicopter or defective night vision goggles disregarded because not listed among the 14 primary causes or 24 factors which contributed to the accident as found by the Australian board of inquiry, and ". . . the plaintiffs have offered no evidence to show that military hardware was defective or was a cause of the accident." Id., 469.)

The documentary evidence analysis mirrors that of the testimonial evidence. Between the judicial inquiry and other Costa Rican government documents, the hospital's records, Nirvana's records, CIS Bio's records, the vast majority (in number and significance) of relevant documents is in Costa Rica. GE has three or four boxes of documents, including duplicate copies. GE's documents are primarily post-incident with many of them being attorney-client privileged or work product protected. They are located primarily in the GE Healthcare office in Milwaukee, Wisconsin. The transactional records pertaining to GE's purchase of the radiotherapy business from CGR and the sale of that business to Varian (which includes a disclosure of the Costa Rican over-radiation incident) are located at offsite storage. Other records are located at the office in Fort Lauderdale, Florida, Alpharetta, Georgia, Massachusetts, Buc, France and with the law firms of Morgan Lewis Bockius and Williams and Connelly. In addition there are about 35 pages of documents at GE Headquarters in Fairfield, Connecticut, about half of which are privileged.

When all the evidence is considered, the evidence in Costa Rica predominates over the evidence in Connecticut and even over all the combined evidence outside Costa Rica. Relative ease of access to sources of proof therefore weighs heavily toward a forum in Costa Rica.

This conclusion is strongly supported by the precedent of the Maryland rulings. There was in fact far more evidence in Maryland in 2004 than there is in Connecticut in 2010, primarily because of the residence there of Edward Jessilonis, and the presence of the GE Medical Maryland office where he worked and kept his records. The only witnesses actually in Connecticut are the former CEO and CFO of GE Medical who may have relevant post-incident knowledge, but are not primary crucial witnesses. Strong recent Connecticut Supreme Court precedent can also be found in the Durkin case which has many similarities to this case: multiple injuries to foreign plaintiffs caused by a catastrophic accident thoroughly investigated in a foreign country with an available, adequate judicial system — Connecticut lawsuit against corporations with strong presence in Connecticut nonetheless dismissed on FNC grounds in favor of the forum of the site of the accident.

The Availability of Compulsory Process for the Attendance of Unwilling Witnesses

If this case were to be tried in Connecticut none of the many Costa Rican witnesses would subject to compulsory process issued by this court. McDaniels Declaration 8/18/08 (not disputed by plaintiffs). There is no indication from either party that Costa Rica is a signatory to the Convention on Taking Evidence Abroad in Civil or Commercial Matters or the "Hague Convention."²⁵ It therefore follows that United States witnesses would not be subject to compulsory process of the Costa Rican courts if the trial were to be held there. This factor weighs toward the forum in Costa Rica because the Costa Rica's witnesses are more numerous and significant as to the central issues of the case, and the lack of their live testimony would be more prejudicial to the defendant in Connecticut than the lack of live testimony by the few possible Connecticut witnesses would be to the plaintiffs in Costa Rica. The latter would be true even if all United States witnesses are considered, especially since (1) their depositions could be taken by letters rogatory issued out of Costa Rica and "Civil proceedings in Costa Rica are essentially in writing" (Paris affidavit ¶ 1.3(b)) in any event; and (2) almost all the United States witnesses are effectively under the control of GE and this court can condition any FNC dismissal on GE's stipulating to make those witnesses available for live testimony in Costa Rica. The opposite is not true. Except for the plaintiffs themselves and possibly their doctors, the Costa Rican witnesses are not under the control of the plaintiffs.

25 The workings and limitations of the Hague Convention are discussed in Durkin, at 470.

The Possibility of Viewing the Accident Scene if Such Viewing is Appropriate to the Action

The "accident scene" is this case is virtually irrelevant. The treatment room where the Alcyon II unit was installed could have no bearing on the occurrence of the over-radiation which occurred there. The same is true for the Unit itself. The over-radiation occurred fourteen years ago. The Unit was extensively tested but then returned to service at the hospital when the investigation was completed. Any examination of the unit at this point would be inadmissible because of the passage of time and the continuous usage. This factor is therefore neutral and favors neither forum.

The Enforceability of a Judgment

Only the plaintiffs are seeking affirmative relief, so there is no need to assess the enforceability of any judgment against them. If the case were tried in Connecticut, any judgment against GE would clearly be enforceable, since GE is headquartered here and has substantial Connecticut assets. If the trial were held in Costa Rica, a judgment in Costa Rica would almost certainly be enforceable because of GE's worldwide scope of operations. This court, in any event, can condition any FNC dismissal on GE's stipulating that it shall satisfy any final judgment against it coming out of the Costa Rican court. This factor favors — but only slightly — a forum in Connecticut.

The Relative Advantages and Obstacles to a Fair Trial

The defendant claims that, if this case is to be tried in Connecticut, it will not have the ability to implead third parties such as Dr. Cabezas or CAJA. Plaintiffs argue that Dr. Cabezas is obviously insolvent, but that would impact damages and enforcement of any judgment against him, not his liability for those damages.

One court has called inability to implead third-party defendants a "major factor . . . militating in favor of dismissal." Pain v. United Technologies, Corp., 637 F.2d 775, 790 (D.C. Cir. 1980). This issue was raised in Durkin where the defendants had expressed the desire and intent to sue the Australian government and the Australian army as a third-party defendants. The trial court had not assigned great weight to that claim. The Supreme Court disagreed, citing Pain, and concluded that ". . . the inability to implead third parties is a factor that, under the circumstances of this case, weighs significantly in favor of dismissal." CT Page 9857 258 Conn. at 478. Those same circumstances are present here, and this court likewise concludes that GE's inability to implead Costa Rican parties weighs heavily toward Costa Rica as the appropriate forum for this lawsuit.

All Other Practical Problems that Make the Trial of a Case Easy, Expeditious, and Inexpensive

The Durkin Court considered in this category the ready availability of evidence gathered in the alternate forum by as the result of official government investigations. In that case the Chief of the General Staff of the Australian Army had convened a board of inquiry to investigate the collision of two helicopters during a night time military training exercise. Our Supreme Court took note of this investigation, and the ready availibilty of evidence gathered by the investigators as relevant FNC considerations.

In the present case, the board's extremely thorough findings, which derived from over 7000 pages of records and transcripts of interviews with 144 witnesses, were based on evidence located in Australia. We, therefore, conclude that this factor, which the trial court failed to consider, also favors dismissal.

258 Conn at 454.

Other cases in which governmental investigations were considered as favoring a forum at the location of the investigation include Pain v. United Technologies Corp., supra; Dahl v. United Technologies Corp., 632 F.2d 1027 (3 Cir. 1980); Fredriksson v. Sikorsky Aircraft Corp., supra; and Melgares v. Sikorsky Aircraft Corporation, 613 F.Sup. 231 (D.Conn. 2009). Although these cases have all involved aircraft accidents, the investigation of the Costa Rican court into this over radiation incident is entitled to the same considerations. It was very thorough and resulted in a 750-page opinion. This factor therefore is also indicative of a forum in Costa Rica.

Other Factors Raised by Plaintiffs

Although they do not fit neatly into any of the judicially recognized private interest factor categories, plaintiffs have made two other arguments against finding Costa Rica to be the most convenient forum, which the court will address.

CT Page 9858

Americans v. Americans

Referring to the three persons named in the complaint as plaintiffs who allegedly reside somewhere in the United States, plaintiffs argue that "The courts never transfer a case to a foreign country where the suit is between Americans v. Americans." And, "Indeed, with regard to American domicile versus an American domicile, the courts virtually always deny an FNC motion." (Plaintiffs'"Initial Response Memo," p. 31). They cite Lehman v. Humphrey Cayman, Ltd, 713 F.2d 339 (8 Cir. 1983) quoting from Founding Church of Scientology v. Verlag, 536 F.2d 429, 435 (D.C. Cir. 1976) for the proposition that: "courts should require positive evidence of extreme circumstances, and should be thoroughly convinced that material injustice is manifest, before exercising any [FNC] discretion to deny an [American] citizen access to the courts of this country." Building on that argument, plaintiffs cite Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 429 (5 Cir. 1984) for the proposition that, because the cases of the three American plaintiffs cannot be dismissed to a Costa Rican forum, the entire case on behalf of 272 persons named as plaintiffs must stay in this Connecticut court to avoid litigating the same issue in two separate fora. The court does not reach the Skaarup point, because the "American v. American" argument does not prevent this court from finding that Costa Rica is the appropriate and most convenient forum for the entire case.

First, as previously discussed, the three persons, Franco Salas, Vilma Cordrero, and Hernan Cordero, are not parties to this case. They are persons named in a complaint as plaintiffs but they are not properly pleaded in the summons and therefore are not plaintiffs. Second, there is no allegation that they are citizens of the United States. Third, they are not named as direct plaintiffs but rather sue as representatives or survivors of their deceased parents. And finally the underlying premise is overstated: "Citizen's forum choice should not be given dispositive weight . . . Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum." Piper Aircraft, supra, 454 U.S. at 256. "We are not convinced, however, that plaintiffs' forum choice here deserves extra weight in the `balance of private conveniences' simply because several of the plaintiffs are American citizens or because one of the plaintiffs is an American resident." Pain, supra, 637 F.2d at 796. And as recently stated by the Second Circuit:

A court considering a motion for dismissal on the grounds of forum non conveniens does not assign talismanic significance to the citizenship or residence of the parties, and there is no inflexible rule that protects U.S. citizen or resident plaintiffs from having their causes dismissed for forum non conveniens . . . [W]hile [a] plaintiff's citizenship and residence can serve as a proxy for, or indication of, convenience, neither the plaintiff's citizenship nor residence necessarily controls the outcome.

Pollux Holding, Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 73 (2 Cir. 2003).

If these three people were actually plaintiffs and citizens of the United States, suing for their own injuries, the court would be inclined to say this factor weighs slightly in favor of the Connecticut forum. But, given the facts as they are, this is a neutral factor which weighs toward neither forum.

Suing GE in its Home Forum

Plaintiffs also claim that the location of GE's world headquarters in Fairfield, Connecticut is an "extremely important consideration" indicative of a Connecticut forum. They rely primarily on Founding Church of Scientology v. Verlag, supra, where the court said, "In incorporating in this country and locating here, they have, in effect signified their willingness to be sued in American courts." Id., at 435; and on Lehman, supra: "Thus, in this case, as in Verlag, the fact that the defendants are located in this country is one indication that it would be less burdensome for the defendants to defend suit in this country than it would be for Lehman to litigate in a foreign country." Id. at 346.

The Verlag analogy does not totally fit. GE is not a Connecticut corporation. It is a New York corporation which relocated its headquarters to Connecticut some time ago. Setting that aside, however, the law of FNC has developed considerably since 1976 and 1983 when Verlag and Lehman, respectively, were decided. It now seems commonplace for FNC dismissals to be granted where plaintiffs sue in defendant's domicile, particularly when plaintiffs are from another country. One need look no further than the Durkin case where the Australian plaintiffs sued seven American manufacturers of helicopters or helicopter parts or components or night vision goggles, four of which, including United Technologies Corporation had significant operations or were located in Connecticut. The Supreme Court held that the trial court had abused its discretion in denying the FNC dismissal motion because it did not give sufficient weight to the private interest factors favoring Australia as the proper forum. In so holding, the court found that the foreign plaintiffs were entitled only to the weakened or diminished presumption that their choice of forum should be honored. The only deference to the Connecticut location of four of the defendants was the court's passing remark (quoting from Picketts, supra) that "Even though the plaintiffs' preference has a diminished impact because the plaintiffs are themselves strangers to their chosen forum . . . Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum . . . especially in the somewhat unusual [situation in which] it is the forum resident who seeks dismissal." Id., 258 Conn. at 454. Other recent cases where FNC dismissals have been upheld on behalf of a domiciliary of the forum include Gschwind v. Cessna Aircraft Company, 161 F.3d 602, 606 (10 Cir. 1998) (affirming FNC dismissal by Kansas court against French plaintiff, where defendant domiciled in Kansas); Kamel v. Hill-Rom Company, 108 F.3d 799 (7 Cir. 1997) (affirming FNC dismissal by Indiana court, where defendant domiciled in Indiana and plaintiff domiciled in Saudi Arabia); and Ismail v. Am. Univ. Of Beirut, 246 F.Sup.2d 330, 332-33 (S.D.N.Y. 2003) (FNC dismissal granted where defendant domiciled in New York and plaintiffs were citizens of Syria, Saudi Arabia, and Kuwait).

In Pollux, supra, the Second Circuit observed that where a foreign plaintiff brings suit in the defendant's home forum, and that forum has little or no substantive connection to the case, the plaintiff's choice of forum may be interpreted as a tactical choice less deserving of deference. Here, as the court's earlier analysis of the allegations and the evidence confirms, there is virtually no connection between the circumstances of the case and GE's corporate headquarters in Connecticut. And, there is no connection whatsoever between plaintiffs and this Connecticut forum. GE's headquarters being located here therefore is entitled to no weight in the FNC decision.

Having weighed all the private interest factors through the prism of plaintiff's diminished presumption that its choice of forum should be honored, the court finds that the private interest factors weigh predominantly in favor a forum in Costa Rica and that defendant has rebutted the diminished presumption favoring the plaintiffs' position.

(3) Balancing of Public Interest Factors

Since the private interest factors tip the balance in favor of FNC dismissal, a balancing of public interest factors is not strictly required. The court will nonetheless discuss and balance some of the relevant public interest factors, since that analysis will lend further support to the conclusion already reached that Costa Rica is the appropriate and most convenient forum for the trial of this case.

Court congestion is a valid concern. With approximately 100 claims of wrongful death or serious injury presenting complicated issues of the proper handling and installation of highly radioactive materials, this trial would draw on substantial resources of this court for at least several months. As we know from the Costa Rican judicial inquiry each party would offer the testimony of expert witnesses on highly technical issues, which offers would undoubtedly engender motions to preclude testimony and/or requests for " Porter hearings."²⁶ There could also be medical causation issues as to many of the plaintiffs which would involve medical expert testimony. Hundreds of exhibits would have to be translated into English. Many witnesses, perhaps the majority, would require the services of the court's Spanish-speaking interpreters which would greatly slow the pace of this trial. Dozens, perhaps hundreds of residents of this judicial district would be summoned for voir dire proceedings which could take weeks to select a jury, especially given Connecticut's unique individual voir dire examination. When the very tenuous connections between this case and Connecticut are considered, the foregoing burdens amount to an unjustified imposition and burden on our citizens and our judicial resources.

26 See State v. Porter, 241 Conn. 57 (1997).

The case presents very difficult issues of choice of law and determinations of foreign (Costa Rican) law. It is true that "the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before [it] . . . Connecticut courts are quite capable of applying foreign law when required to do so and it would be improper to invoke the doctrine of forum non conveniens solely to avoid a choice of law analysis." (Citation and internal quotation mark omitted.) Picketts, supra, 215 Conn. at 512. Application of Costa Rican law, however, presents unique challenges to a non Costa Rican court because of its almost total lack of reliance on judicial precedent to establish applicable requirements of conduct. The result is a battle of partisan experts, (former judges, attorneys, bar leaders, law professors) presenting conflicting opinions as to the applicable law. That is a battle more properly waged before a Costa Rican judge who is better equipped to evaluate that testimony and determine applicable law to a higher degree of certainty.

The remaining public interest factors pertain to having issues decided in their local forum in front of interested persons versus the interest a Connecticut court would have in seeing that its products are properly designed and serviced. See Miller v. United Technologies Corporation, 40 Conn.Sup. 457, 466 [ 9 Conn. L. Rptr. 386]. As in Miller, this court concludes that, under the circumstances of this case the former policy takes precedence over the latter, and this factor therefore weighs in favor of a Costa Rican forum. This incident caused horrendous human tragedy to more than 100 Costa Rican families. The incident itself and the judicial inquiry which followed were highly publicized in Costa Rica. A Costa-Rican doctor was indicted and tried for thirty counts of negligent homicide and convicted on sixteen counts for which he was sentenced to jail for six years. This is a proceeding which should take place in full view of the people of Costa Rica, in their location, in their language. It is an extremely strong case for the "local forum in front of interested persons" policy. On the other hand, the countervailing policy of Connecticut's interest in products and services coming out of this state is a very poor fit. This Alcyon II unit was not manufactured in Connecticut or by GE. The cobalt head energy source likewise was the product of another company in Europe. The only connection is that GE, with its corporate headquarters here, was, through its medical division headquartered in Wisconsin, the ultimate employer of a technician who was dispatched from an office in Maryland, where he lived, as a subcontracted installer of the cobalt head at the hospital in Costa Rica. The job was completed in about three days and he returned to Maryland. The former policy clearly predominates. The balancing of public policy factors therefore also weighs in favor a forum in Costa Rica.

(4) Ensuring that the Plaintiffs can Reinstate Their Action in the Alternate Forum Without Undue Inconvenience or Prejudice

This fourth and final step of the Gulf Oil balancing process is usually accomplished by the entry of a conditional order of dismissal which is often a matter of stipulation. Here, the court has found that the courts of Costa Rica are available and adequate, and that GE (as it has agreed) is subject to personal jurisdiction before those courts for this incident, over which the Costa Rican courts have subject matter and territorial jurisdiction. The other concerns are typically ensuring that the plaintiffs will not have incurred statute of limitations or laches problems for the period of time that this case has been pending in this Superior Court of Connecticut, and facilitating the ability of plaintiffs to secure the attendance in Costa Rica of witnesses and documentary evidence within the control of the defendant. Finally, as a safety net, courts typically include among those conditions a "return jurisdiction" provision ensuring that the plaintiffs will be able to return to this court and reactivate this case if the alternate forum — Costa Rica — rules through its highest court that it does not have jurisdiction. See, e.g. the conditional orders of dismissal entered in the Maryland Circuit Court and affirmed on appeal, and in Durkin, supra (fn. 23), Fredriksson, supra, and Melgares, supra; GE has asked the court not to include a return jurisdiction provision in any dismissal order entered in this case because it claims that the plaintiffs already have a return jurisdiction forum in Maryland if Costa Rica rejects jurisdiction. Because of this court's concerns about the continued availability of Maryland's offer of return jurisdiction due to the passage of time during which the plaintiffs declined the opportunity to sue in Costa Rica, this court intends to include a condition of return jurisdiction even if that might result in the plaintiffs having two fora to return to if Costa Rica rejects jurisdiction.

GE has, in effect, stipulated to being subject to in personam jurisdiction in Costa Rica but has not expressly stipulated in any of its memoranda, affidavits or declarations to the other elements of a conditional dismissal. By asking this court to find that Costa Rica is the most convenient forum and by claiming preclusive effect of the Maryland case and citing that case as legal precedent, GE is deemed to have stipulated to conditions similar to those entered in Maryland. And this court has in any event the inherent authority to condition its order of dismissal on such factors as it deems appropriate to protect the interests of plaintiffs in connection with the court's decision not to exercise its own jurisdiction because there is a more convenient and appropriate forum in Costa Rica.

ORDER

For the reasons stated herein, the Defendant's Motion to Dismiss on Grounds of Forum Non Conveniens is GRANTED ON CONDITION, provided:

1. That defendant General Electric Company unconditionally submits to in personam jurisdiction of the court in Costa Rica when plaintiffs bring this action;

2. That defendant General Electric Company waive any statute of limitations or laches defense that may arise in Costa Rica to the extent of any delay attributable to the pendency of this proceeding in the Superior Court of Connecticut;

3. That defendant General Electric Company shall be bound by any final judgment against it in the courts of Costa Rica based on the causes of action as pleaded in this case and/or any similar or comparable cause causes of action under the law of Costa Rica, entered in favor of the plaintiffs herein or any persons named in the complaint as plaintiffs;

4. That, if plaintiffs commence litigation against the defendant as described in condition No. 3 in a Costa Rican court, defendant General Electric Company shall make available for discovery as allowed by Costa Rican law and for trial in Costa Rica, at its own expense, any non-privileged documents, or witnesses including employees and former or retired employees within its control, that are needed for a fair adjudication of the plaintiffs' claims;

5. That the claims dismissed herein on grounds of forum non conveniens may be reinstated in this court by the plaintiffs, and defendant shall not oppose such reinstatement, if there is a final determination by the highest appropriate court in Costa Rica ruling in a bona fide adversarial proceeding that Costa Rica lacks jurisdiction;

6. If the plaintiffs fail to commence litigation against GE in Costa Rica within 120 days from the effective date of this order, as hereinafter defined, extended by any applicable stay for appellate review, the defendant may petition this court to modify its order by deletion of the return jurisdiction provision of condition No. 5;

7. This order shall take effect upon the filing as a pleading in this case of an affidavit of counsel for General Electric Company stipulating to the provisions of conditions Nos. 1 through 5, above. That affidavit shall be filed by June 1, 2010. The effective date of this order shall be the filing date of such affidavit. If the foregoing affidavit is not filed by June 1, 2010, this order shall not take effect and the court will schedule and conduct a hearing limited to the issue of appropriate conditions of dismissal; and

8. This court shall retain jurisdiction for purposes of possible future proceedings pursuant to the return jurisdiction provisions of condition No. 6, and/or any hearing as to appropriate conditions of dismissal pursuant to condition No. 7 and/or for adjudication of any disputes as to the application or enforcement of the conditions of this order. This court shall also retain jurisdiction for purposes of making available to the parties the alternative dispute resolution services of the Connecticut Superior Court. See Practice Book § 23-68 and www.jud.state.ct.us (Courts/Superior Court/alternative dispute resolution mediation).