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Chandler v. Multidata Systems International Corp.5/10/2005
t the trial court erred in sustaining Multidata's and the Canadian Defendants' motions for dismissal because they failed to sustain their burden of proof that trying this case in Missouri would be substantially more inconvenient than trying the case in Panama. In other words, Plaintiffs contend that the trial court's determination with regard to the Riederer factors erroneously weighed in Multidata and the Canadian Defendants' favor.
The first factor the trial court must consider is the place of accrual of the cause of action. Relying on Dzur v. Gaertner, 657 S.W.2d 35, 36 (Mo. App. 1983), Plaintiffs argue that the cause of action for this case accrued in Missouri because that is the state where the "wrong complained of was committed." Contrary to Plaintiffs' assertion, under Missouri law, a cause of action accrues when and originates where damages are sustained and capable of ascertainment. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984); see also Acapolon, 827 S.W.2d at 193 (finding that the claim accrued and the damage occurred in Guatamala even though plaintiffs alleged that decision-making for defective product occurred in Missouri and relevant witnesses were located in Texas). Plaintiffs do not dispute that they sustained their injuries in Panama.
Plaintiffs further argue that, based on choice of law analysis under the Restatement (Second) of Conflicts of Law section 145 (1971), the trial court should look to the place where a defendant's conduct occurred. However, Plaintiffs fail to explain why choice of law analysis applies to the question of whether a case should be dismissed for forum non conveniens. In addition, Plaintiffs focus heavily on the choice of law factor of where a defendant's conduct occurred without mentioning that another consideration required in choice of law analysis is the place of injury . See Nelson v. Hall, 684 S.W.2d 350, 351-52 (Mo. App. 1984) (listing, among other factors, that courts should consider the place where the injury occurred and the place where the conduct causing the injury occurred for a choice of law analysis) (emphasis added). Thus, since the cause of action accrued when Plaintiffs and Plaintiffs' decedents were over-exposed to radiation at the ION, this factor weighs in favor of dismissal.
The second factor is the location of witnesses. The parties dispute how many witnesses will be required and where they are located. In particular, Plaintiffs argue that this case will likely be severed and that the trial court should have assumed that fewer witnesses would be required. However, Plaintiffs have not presented any evidence demonstrating that any of the Plaintiffs have agreed to allowing an initial plaintiff to try a "single case" and potentially influence the remaining plaintiffs' chance of recovery. Moreover, even assuming the trial court would allow severance, a number of witnesses from Panama would still be required to show whether the oncology team's conduct at the ION will impact on Multidata and the Canadian Defendants' liability and to prove Plaintiffs' damages. Moreover, the location of the ION witnesses in Panama prevents the Multidata and the Canadian Defendants from adding them as third parties because they have no contacts with Missouri. The inability to implead responsible third parties as third-party defendants is a factor which weighs heavily in favor of dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259 (1981). The trial court did not abuse its discretion in weighing this factor in favor of Multidata and the Canadian Defendants.
The trial court must then consider the residence of the parties. It is undisputed that only one party resides in Missouri - Multidata - and that the remaini
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