Doe v Armour Pharmaceutical Company Inc.

• Jurisdiction: Ireland
• Judge: BLAYNEY J.
• Judgment Date: 09 March 1994
• Neutral Citation: 1994 WJSC-SC 359
• Court: Supreme Court
• Docket Number: [1993 No. 1449 P.]
• Date: 09 March 1994

DOE v. ARMOUR PHARMACEUTICAL CO INC

BETWEEN:

JOHN M. DOE AND BARBARA M. DOE

Plaintiffs/Appellants

and

ARMOUR PHARMACEUTICAL COMPANY INC., BAXTER HEALTH CARE CORPORATION, AND MYLES LABORATORIES INC.

Defendants/Respondents

BETWEEN:

JOSEPH DOWLING AND MARY DOWLING

Plaintiffs/Appellants

and

ARMOUR PHARMACEUTICAL COMPANY INC., BAXTER HEALTH CARE CORPORATION, AND MYLES LABORATORIES INC.

Defendants/Respondents

1994 WJSC-SC 359

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

324/325/326/333/93

THE SUPREME COURT

Synopsis:

ACTION

Forum

Choice - Change - Proceedings - Stay - Motion - Dismissal - Plaintiff haemophiliac affected by acquired immuno-deficiency syndrome - Contaminated product administered to plaintiff - Plaintiff's condition alleged to be caused by negligence of defendant American drug companies - Initial claim made in U.S.A. but court declined jurisdiction - Plaintiff's claim made in Ireland - Plaintiff sought declaration that ~forum conveniens~ was court of State of New York - Motion brought by plaintiff to have action stayed - (324–326, 333/93 - Supreme Court - 9/3/94)

|Doe v. Armour Pharmaceutical Co. Inc.|

ACTION

Stay

Motion - Refusal - Plaintiff - Forum - Choice - Frustration - Foreign court chosen - Jurisdiction declined by New York court - Plaintiff instituted action in Ireland - Unconditional appearance entered by American company as defendant - Plaintiff's motion for stay opposed by defendant - Test applicable - Demands of justice - (324–326, 333/93 - Supreme Court - 9/3/94) - [1994] 1 ILRM 416

|Doe v. Armour Pharmaceutical Co. Inc.|

PRACTICE

Action

Stay - Motion - Refusal - Plaintiff - Forum - Choice - Frustration - Foreign court chosen - Jurisdiction declined by New York court - Plaintiff instituted action in Ireland - Unconditional appearance entered by American company as defendant - Plaintiff's motion for stay opposed by defendant - Test applicable - Demands of justice - (324–326, 333/93 - Supreme Court - 9/3/94) - [1994] 3 IR 99 - [1994] 1 ILRM 416

|Doe v. Armour Pharmaceutical Co. Inc.|

Citations:

FEDERAL RULES OF CIVIL PROCEDURE (US) RULE 26

ABIAAD V GENERAL MOTORS CORPORATION 538 FED SUP (1983) 537

ATLANTIC STAR, THE 1974 AC 436

MACSHANNON V ROCKWARE GLASS LTD & ORS 1978 1 AER 625

TRENTEX TRADING CORPORATION & ANOR V CREDIT SUISSE 1981 3 AER 520

ABIDIN DAVER, THE 1984 1 AER 470

JOSEPH MURPHY STRUCTURAL ENGINEERS LTD V MANITOWOC (UK) LTD & ORS UNREP SUPREME 30.7.85

DEVINE V CEMENTATION CO LTD 1963 NI 65

AG V ARTHUR ANDERSEN & CO & ORS 1989 ECC 224

1 JUDGMENT delivered on the 9th day of March 1994 by BLAYNEY J. [NEM DISS]

2 This is an appeal by the plaintiffs in two actions (which I shall refer to as the Doe action and the Dowling action) against the dismiss by Flood J. of two motions brought by the plaintiffs. The background to the motions is complex and needs to be set out in full.

3 While this appeal concerns two actions only, there are in addition eighty-one similar actions against the same defendants. The plaintiffs in all the actions are haemophiliacs who are H. I. V. positive or the personal representatives of deceased haemophiliacs who died of AIDS, and they claim that they became H. I. V. positive, or that the deceased contracted AIDS, as a result of the negligence of the defendants, or of one or more of them, in the manufacture and preparation of a clotting factor known as Factor VIII B and BL with which the plaintiffs and the deceased were treated.

4 Both the Does and the Dowlings commenced proceedings initially in the State of New York, the Dowling action having been instituted on July 10th 1990, and the Doe action on the 26th December, 1991. The defendants contested their right to sue in New York and brought motions to have the actions dismissed on the ground of forum non conveniens. The motion in the Dowling action came before His Honour Judge Robert E. Patterson in the Federal District Court of the State of New York on the 2nd July, 1991 and he granted the order sought by the defendants and dismissed the action, making an order in the following terms:-

"In order to ensure that neither party is prejudiced by this determination, defendants' motion to dismiss will be granted on condition that the defendants execute and file with this Court within thirty days of the date of this order a certificate stating:-"

1. That the defendants consent to suit and acceptance of process in any suit plaintiffs file in Ireland on the claims that are the subject of the instant suit.

2. That defendants waive any statute of limitations defence that may be available to them in Ireland.

3. That defendants will afford the plaintiffs discovery in the United States by any of the methods permitted by Rule 26 of the Federal Rules of Civil Procedure for actions conducted in the United States and that the defendants agree to make available for discovery and for trial, and at their own expense, any documents, records, or witnesses, including - retired employees within their control that are needed for the fair adjudication of the plaintiffs' claims in Ireland.

4. That the defendants will not act to prevent the plaintiffs from returning to this Court if the Court in Ireland declines to accept jurisdiction of this action, if it is filed in Ireland within sixty days of the entry of this order."

5 The motion to dismiss the Doe action came before His Honour Judge Conner in December, 1992 and was also successful. The order made by the learned trial judge was as follows:-

"For the foregoing reasons, defendants' motion to dismiss on "forum non conveniens" grounds is granted in each case subject to the defendants compliance with the following conditions:-"

1. The defendants consent to jurisdiction and service of process in any suit plaintiffs file in Ireland on claims that are the subject of the instant action.

2. The defendants waive any statute of limitations defence that may have arisen since the commencement of their respective actions in New York State Supreme Court.

3. The defendants not to act to prevent the plaintiffs from returning to this Court if the Irish Court declines to accept jurisdiction provided that the action is filed in Ireland within ninety days from the entry of this order."

6 The actions, in which the motions the subject matter of this appeal were brought, were then commenced by the issue of two plenary summonses, liberty having first been obtained to issue and serve them on the defendants out of the jurisdiction. Unconditional appearances have been entered to the summonses by each of the defendants.

7 The notice of motion which came before Flood J. was then served in both actions. It claimed the following relief:-

8 2 "1. An order declaring that the matters in issue between the parties in the within proceedings are more conveniently and properly tried in the State of New York, United States of America and that accordingly this Honourable Court decline to accept jurisdiction in respect of the within proceedings.

9 2. A declaration that in the interest of the full and proper vindication of the plaintiffs' constitutional rights the matters in issue in the within proceedings ought to be tried in the State of New York, United States of America.

10 3. Further or in the alternative and without prejudice to the foregoing an order staying the within proceedings pending the determination of the said issues in the State of New York, United States of America or such further or other orders as the Court shall seem fit and an order providing for the costs of these proceedings."

11 On the 27th August, 1993 Flood J. dismissed the motions in a very comprehensive reserved judgment dealing with all the issues which had been raised before him. He held that it was open to the plaintiffs to move to stay the actions they had commenced and that they were not estopped by the decision of the New York Court from making the case that Ireland and not New York was the forum non conveniens. He then went on to deal with the issue of forum non conveniens and, having considered it with great thoroughness, decided it against the plaintiffs. He held that Ireland was the appropriate forum for the trial of the actions. The same issues were debated again during the hearing before this Court. In addition, counsel for the defendants submitted that it had never been intended by the New York Court that the conditions restraining the defendants from preventing the plaintiffs returning to that Court "if the Court in Ireland declines to accept jurisdiction" should be used by the plaintiffs as entitling them to have the "forum non conveniens"...