ORIGINAL PROCEEDING OF PROHIBITION
PATRICIA BRECKENRIDGE, Judge.
Relators, comprised of Wyeth and various other pharmaceutical companies, seek a writ of prohibition to prevent the trial court from denying their motions to dismiss claims pending against them on forum non conveniens grounds. Specifically, they claim that the trial court abused its discretion in denying their motions to dismiss because all the relevant factors in the forum non conveniens analysis favor dismissal. While many of the relevant factors weigh in favor of applying the doctrine of forum non conveniens, not all weigh in their favor. In particular, the pharmaceutical companies fail to show that other courts are available to the plaintiffs and that trying the cases in Missouri would be oppressive to the pharmaceutical companies or impose an undue burden on Missouri courts. This Court’s preliminary writ of prohibition is quashed.
Factual and Procedural Background
Plaintiffs filed suit on July 7, 2004, in the Circuit Court of the City of St. Louis for injuries allegedly caused by their ingestion of prescription hormone therapy drugs manufactured by Wyeth and other pharmaceutical companies. The original petition was filed on behalf of 186 plaintiffs, who were women who had taken the drugs and their husbands or representatives of the estates of deceased hormone therapy users. Twenty-one of the original plaintiffs were Missouri residents. There were 34 defendants, who were manufacturers of the hormone therapy drugs and pharmacies that allegedly sold the drugs. The case was removed to federal court but then remanded to the state trial court. At the request of the pharmaceutical companies, the trial court subsequently severed the claims of the individual plaintiffs and, in response to the pharmaceutical companies’ motion to dismiss, granted plaintiffs leave to file amended complaints. One of the grounds in the motion to dismiss was the doctrine of forum non conveniens, which the trial court overruled. The pharmaceutical companies then removed the majority of the cases, including the cases of all Missouri-resident plaintiffs, to federal court in Arkansas.1 Only eleven non-diverse claims remained in St. Louis City. Missouri retains jurisdiction over the claims because the pharmaceutical companies conduct substantial and continuous business in the state. See State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 166-69 (Mo. banc 1999).
The pharmaceutical companies then filed motions to dismiss ten of the remaining claims on forum non conveniens grounds. In support of their motions, the companies attached exhibits. No hearing was held on the motions. On November 2, 2006, in ten separate orders, the trial court overruled the companies’ motions to dismiss. In its order in each case, the trial court listed the considerations to weigh in the forum non conveniens analysis and then wrote:
Here, the Court notes that this action has been pending for over two years and that substantial discovery has already been performed. The lawsuit was originally filed on July 7, 2004 and joined the claims of multiple plaintiffs, all of whom [219]*219claimed they were injured as a result of taking hormone therapy drugs. The ease was then removed to federal court and subsequently remanded back to this Court. On August 24, 2005, the Court ordered the cases severed. Pursuant to the Court’s ruling, a new Amended Complaint was filed on behalf of each of the individual plaintiffs.
The Court further notes that Defendants do a substantial amount of business within the State of Missouri, marketing and distributing their products to Missouri residents. The Court also does not believe an undue burden on this Circuit will be created by the prosecution of this case in the City of St. Louis.
Considering all of these matters together with the knowledge that the doctrine of forum non conveniens is to be applied with caution and only upon a clear showing of inconvenience and when the ends of justice require it, the Court finds that Defendants’ Motion to Dismiss Based on Forum Non Conveniens should be overruled.
The pharmaceutical companies claim that they are entitled to an order prohibiting the trial court from taking any further action in these cases, other than dismissing the cases on forum non conveniens grounds, because the trial court abused its discretion in overruling their motions to dismiss. Specifically, the companies assert that all the factors relevant to determining whether a forum is inconvenient weigh heavily in their favor.
Standard of Review
Because the question of whether to dismiss a case for inconvenient forum requires the court to weigh multiple factors the decision is left largely to the trial court’s discretion. Besse v. Missouri Pacific R. Co., 721 S.W.2d 740, 742 (Mo. banc 1986). Although the trial court’s discretion is broad, it is not unlimited. Id. at 743. “[Discretion is not the equivalent of whim; discretion must be applied with control.” Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Further, if reasonable persons may differ as to the propriety of an action taken by the trial court, then it cannot be held that the trial court has abused its discretion. Id. On appeal, “only those facts will be considered that were before the trial court when it ruled on the motion to dismiss, and the evidence will be viewed in a light favorable to the result of the trial court.” Id.
Writ of Prohibition is an Appropriate Remedy
“Prohibition is a discretionary writ, and there is no right to have the writ issued.” State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). A writ of prohibition will issue to prevent an abuse of discretion, irreparable harm to a party, or an extra-jurisdictional act and may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. Id. This Court has stated expressly that “a petition for writ of prohibition may be a proper means of obtaining relief from an order denying dismissal on forum non conveniens grounds.” Holliger, 986 S.W.2d at 169. Although a writ of prohibition may be an appropriate remedy, “the discretionary nature of the trial court’s order portends that a writ rarely will be granted.” Id.
The Forum Non Conveniens Doctrine
Although a plaintiff has the right to choose any forum where there is proper [220]*220jurisdiction and venue in which to file the plaintiffs cause of action, the doctrine of forum non conveniens was developed to prevent a plaintiff from taking advantage of liberal venue statutes to “vex, oppress, or harass” a defendant by bringing suit in a forum that had no connection to the parties or the cause of action. Anglim v. Mo. Pacific R. Co.,
Free access — add to your briefcase to read the full text and ask questions with AI
ORIGINAL PROCEEDING OF PROHIBITION
PATRICIA BRECKENRIDGE, Judge.
Relators, comprised of Wyeth and various other pharmaceutical companies, seek a writ of prohibition to prevent the trial court from denying their motions to dismiss claims pending against them on forum non conveniens grounds. Specifically, they claim that the trial court abused its discretion in denying their motions to dismiss because all the relevant factors in the forum non conveniens analysis favor dismissal. While many of the relevant factors weigh in favor of applying the doctrine of forum non conveniens, not all weigh in their favor. In particular, the pharmaceutical companies fail to show that other courts are available to the plaintiffs and that trying the cases in Missouri would be oppressive to the pharmaceutical companies or impose an undue burden on Missouri courts. This Court’s preliminary writ of prohibition is quashed.
Factual and Procedural Background
Plaintiffs filed suit on July 7, 2004, in the Circuit Court of the City of St. Louis for injuries allegedly caused by their ingestion of prescription hormone therapy drugs manufactured by Wyeth and other pharmaceutical companies. The original petition was filed on behalf of 186 plaintiffs, who were women who had taken the drugs and their husbands or representatives of the estates of deceased hormone therapy users. Twenty-one of the original plaintiffs were Missouri residents. There were 34 defendants, who were manufacturers of the hormone therapy drugs and pharmacies that allegedly sold the drugs. The case was removed to federal court but then remanded to the state trial court. At the request of the pharmaceutical companies, the trial court subsequently severed the claims of the individual plaintiffs and, in response to the pharmaceutical companies’ motion to dismiss, granted plaintiffs leave to file amended complaints. One of the grounds in the motion to dismiss was the doctrine of forum non conveniens, which the trial court overruled. The pharmaceutical companies then removed the majority of the cases, including the cases of all Missouri-resident plaintiffs, to federal court in Arkansas.1 Only eleven non-diverse claims remained in St. Louis City. Missouri retains jurisdiction over the claims because the pharmaceutical companies conduct substantial and continuous business in the state. See State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 166-69 (Mo. banc 1999).
The pharmaceutical companies then filed motions to dismiss ten of the remaining claims on forum non conveniens grounds. In support of their motions, the companies attached exhibits. No hearing was held on the motions. On November 2, 2006, in ten separate orders, the trial court overruled the companies’ motions to dismiss. In its order in each case, the trial court listed the considerations to weigh in the forum non conveniens analysis and then wrote:
Here, the Court notes that this action has been pending for over two years and that substantial discovery has already been performed. The lawsuit was originally filed on July 7, 2004 and joined the claims of multiple plaintiffs, all of whom [219]*219claimed they were injured as a result of taking hormone therapy drugs. The ease was then removed to federal court and subsequently remanded back to this Court. On August 24, 2005, the Court ordered the cases severed. Pursuant to the Court’s ruling, a new Amended Complaint was filed on behalf of each of the individual plaintiffs.
The Court further notes that Defendants do a substantial amount of business within the State of Missouri, marketing and distributing their products to Missouri residents. The Court also does not believe an undue burden on this Circuit will be created by the prosecution of this case in the City of St. Louis.
Considering all of these matters together with the knowledge that the doctrine of forum non conveniens is to be applied with caution and only upon a clear showing of inconvenience and when the ends of justice require it, the Court finds that Defendants’ Motion to Dismiss Based on Forum Non Conveniens should be overruled.
The pharmaceutical companies claim that they are entitled to an order prohibiting the trial court from taking any further action in these cases, other than dismissing the cases on forum non conveniens grounds, because the trial court abused its discretion in overruling their motions to dismiss. Specifically, the companies assert that all the factors relevant to determining whether a forum is inconvenient weigh heavily in their favor.
Standard of Review
Because the question of whether to dismiss a case for inconvenient forum requires the court to weigh multiple factors the decision is left largely to the trial court’s discretion. Besse v. Missouri Pacific R. Co., 721 S.W.2d 740, 742 (Mo. banc 1986). Although the trial court’s discretion is broad, it is not unlimited. Id. at 743. “[Discretion is not the equivalent of whim; discretion must be applied with control.” Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Further, if reasonable persons may differ as to the propriety of an action taken by the trial court, then it cannot be held that the trial court has abused its discretion. Id. On appeal, “only those facts will be considered that were before the trial court when it ruled on the motion to dismiss, and the evidence will be viewed in a light favorable to the result of the trial court.” Id.
Writ of Prohibition is an Appropriate Remedy
“Prohibition is a discretionary writ, and there is no right to have the writ issued.” State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). A writ of prohibition will issue to prevent an abuse of discretion, irreparable harm to a party, or an extra-jurisdictional act and may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. Id. This Court has stated expressly that “a petition for writ of prohibition may be a proper means of obtaining relief from an order denying dismissal on forum non conveniens grounds.” Holliger, 986 S.W.2d at 169. Although a writ of prohibition may be an appropriate remedy, “the discretionary nature of the trial court’s order portends that a writ rarely will be granted.” Id.
The Forum Non Conveniens Doctrine
Although a plaintiff has the right to choose any forum where there is proper [220]*220jurisdiction and venue in which to file the plaintiffs cause of action, the doctrine of forum non conveniens was developed to prevent a plaintiff from taking advantage of liberal venue statutes to “vex, oppress, or harass” a defendant by bringing suit in a forum that had no connection to the parties or the cause of action. Anglim v. Mo. Pacific R. Co., 832 S.W.2d 298, 302 (Mo. banc 1992). The doctrine allows, and in some circumstances requires, the trial court to dismiss a suit if it is filed in a “manifestly inconvenient” forum. Besse, 721 S.W.2d at 742.
In State ex rel. Chicago, R.I. & P.R. Co. v. Riederer, this Court listed six important, but non-exclusive, factors for the trial court to weigh in determining whether a suit should be dismissed on the grounds of inconvenient forum. 454 S.W.2d 36, 39 (Mo. banc 1970). Those six factors are: (1) the place where the cause of action accrued, (2) the location of witnesses, (3) the residence of the parties, (4) any nexus with the place of suit, (5) the public factor of the convenience to and burden on the court, and (6) the availability to the plaintiff of another court with jurisdiction over the cause of action that affords him a forum for his remedy. Id. Any additional factors to be considered and the weight assigned to each factor are dependent upon the circumstances in each case. Anglim, 832 S.W.2d at 303. “[A] plaintiff’s choice of forum is not to be disturbed except for ‘weighty reasons’ and the case should be dismissed only if the ‘balance is strongly in favor’ of the defendant.” Id. at 302 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).
In addition to analyzing whether the six factors listed above weigh heavily in the companies’ favor, it is also necessary to determine whether permitting the trial to proceed in Missouri would cause an injustice due to oppression of the defendant or undue burden on the court. Plaintiffs assert that this consideration is a second prong in the analysis that the companies fail to satisfy. The impression that the forum non conveniens analysis includes a second prong appears to be the result of the following passage from this Court’s opinion in Anglim:
In the context of an appeal from an order overruling a motion to dismiss based on a claim of inconvenient forum, the decision of the trial court is not to be disturbed unless the appellate court is firmly convinced of two propositions. First, the appellate court must be convinced that the relevant factors weigh heavily in favor of applying the doctrine of forum non conveniens. Second, the court must be convinced that permitting the case to be tried in Missouri would lead to an injustice because such trial would be oppressive to the defendant or impose an undue burden on Missouri courts.
832 S.W.2d at 303. Further, subsequent forum non conveniens cases, citing Anglim, appear to apply a two-part test. See Holliger, 986 S.W.2d at 169; State ex rel. Ford Motor Co. v. Westbrooke, 12 S.W.3d 386, 392 (Mo.App.2000).
The analysis is the same whether Anglim creates a “second prong” to the forum non conveniens analysis or is, instead, simply the recognition that there are two primary considerations in the forum non conveniens analysis. In determining whether the forum is inconvenient, courts shall consider both the private interests of the litigants and the public interest factors. Gulf Oil Corp., 330 U.S. at 508-09, 67 S.Ct. 839. The six non-exclusive factors identified in Riederer must first be considered as to whether they weigh heavily in favor of applying the doctrine and then as to whether trial in Mis[221]*221souri would be oppressive to the defendants and an undue burden on Missouri courts.
Applying the first factor to the facts of the cases here, none of the plaintiffs’ causes of action accrued in Missouri. The women were prescribed hormone therapy, purchased and ingested the drugs, and were injured in northeastern states, not Missouri. Further, in most of the cases, the medications were ingested in the plaintiffs’ home states. This factor weighs in favor of dismissal.
The second Riederer factor is the location of witnesses. Here, it is undisputed that no potential witnesses are located in Missouri and that the witnesses would be outside the circuit court’s subpoena power. The significance of this fact in assessing the inconvenience of trial in Missouri is not shown, however, because the pharmaceutical companies do not identify any actual witness, the location of any witness, or even the number of witnesses anticipated. Instead, the companies simply assert that all doctors, nurses, family, friends, coworkers, and other observers live in each plaintiffs home state. Beyond the general allegations regarding plaintiffs’ witnesses, the pharmaceutical companies did not provide the identity or location of any defense witness. “On this, as on other factual matters, the moving party has the initial burden of establishing the relative inconvenience caused by the witnesses’ location.” Id. at 304. While some inconvenience is apparent from non-resident witnesses, the pharmaceutical companies did not provide the trial court with sufficient evidence to quantify that inconvenience.
The third factor is residence of the parties. It is undisputed that no party in these suits is a Missouri resident. All the plaintiffs are residents of one of four northeastern states: Delaware, New Jersey, New York, and Pennsylvania. None of the defendant pharmaceutical companies is incorporated or headquartered in Missouri. All but two of the pharmaceutical companies are Delaware corporations; Qualitest Pharmaceuticals, Inc., is an Alabama corporation, and Solvay Pharmaceuticals, Inc., is a Georgia corporation. Four of the corporate headquarters are located in New York, two in Michigan, one in Alabama, one in Delaware, one in Georgia, one in New Jersey, and one in Pennsylvania. Again, while some inconvenience is apparent, these facts are insufficient to quantify the inconvenience to the companies caused by plaintiffs’ and defendants’ nonresidence. “A corporation may be created under the laws of one state, have its headquarters in another state, and do its primary business in yet one or more other states.” Id.
The fourth factor is whether there is any nexus between the lawsuit and the place suit is brought. Here, there is no apparent nexus between these particular cases and Missouri. There is a nexus between the pharmaceutical companies and Missouri, however. All of the companies do a substantial amount of business in Missouri, marketing and distributing their products to Missouri residents. The companies operate all over the country with different states of incorporation and headquarters. Although the companies argue that a trial in St. Louis “would require everyone to travel great distances and incur the expenses associated with an out-of-town trial,” it is likely that any forum available would be equally inconvenient to the companies. The forums where the plaintiffs are residents are not necessarily forums where the companies are residents, so there still would be a need for travel and the resulting expenses. As such, the weight of this factor in determining whether trial in Missouri would be oppressive to [222]*222defendant pharmaceutical companies is limited.
The fifth Riederer factor is the public factor of convenience to and burden on the court. The defendant pharmaceutical companies argue that these are complex cases that would take two to four weeks to try and would involve the application of the laws of other states. They further argue that, in 1998-2003, the 22nd Circuit ranked at the top of the circuits in numbers of complex civil cases filed per judge, total number of jury trials and highest number of jury-trial days. The trial court, however, specifically found that prosecution of the cases in St. Louis City would not overburden the court. “[T]he trial court may take notice of the congestion of its own docket.” Anglim, 832 S.W.2d at 304. This Court will not find that the statistics offered by the defendant pharmaceutical companies prevail over the trial court’s assessment of the impact of the cases on the court’s docket, based on the evidence before the trial court when the ruling was made.
Finally, with respect to the sixth factor — the availability of another court with jurisdiction affording a forum for a plaintiffs remedy — the defendant pharmaceutical companies assert that the “courts of plaintiffs’ home state[s] are perfectly capable of handling plaintiffs’ product liability claims.” They point to other hormone therapy cases pending in the plaintiffs’ home states that are subject to “coordinated proceedings” as grounds for finding that there is another court with jurisdiction available. Such general assertions are not sufficient. Whether another forum was initially available where plaintiffs could have filed their original claims is not what the sixth factor concerns. The issue to be considered by the trial court is whether each plaintiff would have a forum available, at this time, where he or she could proceed with the lawsuits in the event the current suits are dismissed. Only in this Court, in response to plaintiffs’ claim that there may be bars to them filing suit in other states, such as statutes of limitation, do the pharmaceutical companies offer to waive assertion of a statute of limitations defense for the period each case was pending in Missouri.
The defendant companies argue that if these suits are permitted to proceed because the companies do some business in Missouri, it would open Pandora’s Box, allowing any plaintiff to sue any company that does business in Missouri to the detriment of Missouri’s court system and its jurors. Plaintiffs argue that the court’s jurisdiction over their suits is not oppressive to the pharmaceutical companies and does not impose an undue burden on the court and, therefore, Missouri is not an inconvenient forum. This Court agrees that the companies have not shown that the trial court abused its discretion in overruling their motions to dismiss on grounds of forum non conveniens.
Plaintiffs’ original petition filed in the trial court included 186 plaintiffs, 21 of whom were Missouri residents. The petition, as initially filed, would have withstood a forum non conveniens challenge because of the Missouri plaintiffs. During the years since the case was filed, the pharmaceutical companies removed the entire case to federal court, which later remanded it. The companies then obtained the severance of the plaintiffs’ claims and chose to remove all but eleven plaintiffs to federal court on diversity grounds. Only then were the remaining plaintiffs vulnerable to a forum non conveniens challenge.
The defendant pharmaceutical companies have the potential for gaining additional advantages, beyond having a more convenient forum, if their renewed motions to dismiss for forum non conveniens are [223]*223sustained. For example, the companies renewed their motions to dismiss after receiving unfavorable rulings on issues such as whether plaintiffs’ claims were barred by the statute of limitations, and their proposed waiver of a statute of limitations defense was merely an offer to toll the statute of limitations while the Missouri cases were pending.
In analyzing the relevant factors, the defendant pharmaceutical companies argue that Missouri is an inconvenient forum, primarily because plaintiffs’ witnesses do not reside in Missouri and the parties would have to travel great distances and incur expenses. In so arguing, the companies have not presented factual information about the nature of that inconvenience. And, as noted earlier, the companies failed to prove that it is of great inconvenience or burden on them to try the cases in Missouri because there was a lack of evidence as to where the companies have their principal places of business, the evidence showed that the companies are headquartered in many different states, and, if plaintiffs’ suits are dismissed, the companies would be required to try the cases in the multiple states where the plaintiffs reside. The defendant pharmaceutical companies have not shown that the plaintiffs’ filing and maintenance of the suits in Missouri was for the purpose of vexing, oppressing or harassing the companies, which the doctrine of forum non conveniens is intended to prevent. An-glim, 832 S.W.2d at 302. Finally, the statistics offered by the companies do not compel a finding that trying the cases in the Circuit Court of the City of St. Louis would overburden the court.
Conclusion
Under the special facts of this case, the trial court did not abuse its discretion in fading to dismiss the lawsuits on the grounds that Missouri is an inconvenient forum. The relevant forum non conve-niens factors do not weigh heavily in favor of dismissal, and the defendant pharmaceutical companies fad to show that permitting the cases to be tried in Missouri would lead to an injustice because the trials would be oppressive to defendants or would impose an undue burden on Missouri courts. The trial court, therefore, did not abuse its discretion in fading to dismiss the lawsuits on the grounds that Missouri is an inconvenient forum. This Court’s preliminary writ is quashed.
PRICE, RUSSELL and WOLFF, JJ., concur.
CLARK, Sr. J., concurs in separate opinion filed.
TEITELMAN, J., concurs in opinion of CLARK, Sr.J.
STITH, C.J., not participating.