the district court abuse of the district court's abuse of discretion and dismissing mr have friends liability products liability action against two u s companies on foreign non convenience grounds in favor of a proceeding in germany submit that the district court abused its discretion in three important ways first the district court expressly assigned quote less deference to mr have friend's choice of a forum in the united states second the district court abused its discretion in improperly weighing the relevant public and private interest factors in deciding the conveniences between the balance of conveniences between us for him and a german for third the district court failed to consider the numerous drastic procedural and substantive differences between a german forum and a us forum and failed to give adequate adequate to the factor that  litigating this case in germany would be cost prohibitive fourth plaintiffs would be would cost prohibitive for the plaintiffs in germany dismissal informed on convenience grounds is only appropriate when the moving defendants establish both both that there is an adequate alternative for inform and that the balance of private and public factors reveal that a trial in that foreign case in favor for and for him to prove that a forum here in the united states would be unduly burdensome for them or the court and analyzing the conveniences and burdens to the parties in the court a court faced with the foreman convenience motion must examine the private and public interest factor set forth by the supreme court in the gulf oil case and they must do so bearing in mind that there is a strong presumption in favor of the plaintiff's choice of form when the plaint us citizen like the plaintiff here mr the choice of form is entitled to heighten deference in light of the strong presumption in favor of the plaintiffs chosen for him and the fact that the for and the fact that the foreman on convenience motion results in the harsh result of a dismissal in an otherwise properly venue case in the united states the defendant has a heavy burden to prove that a trial here in the united states the is an american and in any case your honor but particularly when the plaintiff is an american but doesn't that particularly because he's american apply less strongly when it's an american living abroad well your honor the cases seem to focus more on u s citizenship rather than residency i but the cases are decided in the context of particular cases where oh yes you're not an option not an on off switch it's a factor that you look at i right so the person is living over there it's a person who lives over there and has his business over there and really has no there's no indication that he's coming back if you can look generally at the reason for the for the tilt of the presumption that reason applies less strongly than it otherwise would in this case i guess is what i'm asking doesn't it well your honor i guess you have to look at the reasoning for the the presumption for us with that's right in the reasoning has to do with convenience mainly and and it also has to do with the likelihood that there's been forum shopping so if it doesn't look like the most convenient forum maybe you're picking the other forum because it's more lucrative whereas if you would if the if you've already moved back to the united states you naturally you call your lawyer and they want to sue locally it doesn't it isn't so obvious that they're doing it because they're picking the most lucrative form right those i would take to be the reasons do you think there are other reasons for the preference  and the reason can't be the that we have this rule i mean has to be a reason for the rule the reason for the rule can't be because we have this rule right course and i tried to suggest some reasons for the rule are there other reasons for the rule well i think if you if you consider why litigating in the united states would be most preferable for us citizen you could look to just become more comfortable with the us court system and obviously litigate litigating in a place in which you understand the language and your attorney understand the language well that would be less strong if you were down the ciliary of the foreigner stiction well i think you could also look to the ties to to the united states of ok the particular individual you know you have lived in clear well yes your honor but but if you look at the time to the united states mr heffron was born and raised near grand rapids he served in the u s military he was stationed here he moved to germany for for work and and may move back and move back to the united states and as he said in his declaration in the court below he feels most comfortable with with availing himself of the court's united states all let's say that we give you this point that  the there should be some deference to the choice of forum here and if he's an american even if he's living germany what about some of the other factors i mean in particular what is your position regarding whether german law would apply in any case whether it's going to be tried in the united states or whether it be tried in germany well you are looking at the the new jersey choice of law analysis which i believe we're bound to do in this case because through the case started in the new jersey district court you look to the factors outlined in section one forty five of the restatement and although in that restatement you do start with a presumption that the law of the place of injury applies there are other factors set forth in section one forty five that have to be considered and can be used to overcome that presumption and i would submit that in this case the other factors do in fact overcome the presumption and that would you agree that if german law did apply or if it appeared likely that german law would apply that would tend to undercut a lot of the inconveniences of trying the case in germany weissmann your honor that cases have acknowledged that applying foreign law can be a factor weighing in favor of dismissal however it's not necessarily a strong factor and it on its own is not sufficient to overcome the heightened heightened preference for the forms that i'm sorry the pla of forum looking also to the district courts review of the public and private interest in this case i think it's important to take a look and realize that the district court did not analyze the substance of the dispute between the parties and focused almost exclusively on the location of the witnesses that were listed in the parties and initial discloser disclosures the substance of the dubuque dispute is that it's a products liability case  involving a a us corporation that has been at the con that is based in ohio and accordingly the witnesses and the documents with regard to that that would bear most personally on the design and distribution and sale of the product of issue are all located in ohio there are witnesses in in germany including the plaintiffs the plaintiffs of course could come here to provide testimony but really there's only one potentially critical witness in germany and that would be the surgeon who performed the particular procedure however there are a whole bunch of medical who are there as well well of the surgeon would be would be  it wasn't like it just blew up sitting in the corner it was in the course of an operation so the question is how the operation when i presume a lot of the defense is going to be the operators were were things of that sort of political reporters call the tick tock the minute by minute activity is all in the hands of these german witnesses that well yes your honor there was one german surgeon and there was a resident involved in that particular surgery as well and he did obtain follow up surgery in germany are wrong about there were a number of other witnesses in the in the operating room or near the operating room that were disclosed that roane there were there were other surgeons they did his follow up surgery so perhaps that's what your thing wouldn't the follow up surgeons be necessary witnesses and possibly also other doctors that saw a staffer in regarding his recovery and his treatment and his damages well they would be relevant witnesses your honor as to as to damages and there's there's two points to be made number one mr heffron has reached out to all those physicians and they also that the people and to give testimony for this case and the other issue is that those are primarily damages witnesses and if for some reason mr haven't cannot obtain their testimony for this case it's really to the plaintiff's document they're not they're not critical witnesses as to the life illit in this case all of the life believe he witnessed his we submit are located in the cases are clear and both sides agreed that a motion to dismiss for forum non convenience presents a fact specific issue where the district judge has to weigh the relevant facts and factors an exercise discretion in determining whether the interests of justice and the convenience of the parties dictates trial of the case in another jurisdiction assuming that jurisdiction is available when adequate and the cases are equally clear that that discretionary determination can only be reversed upon a showing of a clear abuse of discretion your honor in this case the record in the opinion show that the district judge weighed the relevant factors in detail looked at the relevant facts applied the correct legal standard and correctly determined that it was appropriate to require the plaintiffs to sue in germany given that mr heffer ran as a thirteen year resident of germany still lives there with no definite plans to return his wife and co plaintiff is a german citizen and resident he was injured in germany in the course of surgery he chose to have in germany allegedly as a result of a defect in a medical device sold in germany selected by the german surgeons and used in germany designed in ohio designed in ohio and there's a design that caused the injury well mine was was didn't meet the standards well that's the allegation and that's the question so who's going to testify about the people who are involved in the design if for instance they said well we could design it this way but it would be expensive instead will design it that way because it's cheap that evidence would all be in ohio right it would your honor with one call the there is a manufacturing defect claim in the case the product is manufactured by another entity in mexico so there may be any indications before the district judge whether this is a design rather than a manufacturing defect all we have is the complaint or is there any basis that the district i mean if it's a manufacturing defect or if whether it's a defect is to turn is demonstrated by how it worked something like resits a local or you know then you would think oh the german witnesses will be the key ones but if it's like the ford pinto or something then all the evidence is going to be in ohio is there's nothing in the record which shows which which way we should which kind of case this is you see what i'm asking i see the question your honor and to answer it as directly as i can first of all we have are the allegations so it's impossible to be certain now whether the case will be tried on a design or manufacturing defect theory or both but they're both in the case no question the evidence that's going to make or break cases you know and the judge just says decide without really knowing i don't think that's quite the case your honor i think it's clear that there is relevant evidence in this district there certainly going to be relevant evidence to at least one theory in both districts there's going to be some there's certainly relevant evidence in germany there's relevant evidence here i think the district court was correct in concluding that on balance the case should be tried in germany because in fact all of the evidence that the plaintiff needs is excessive bull to the plaintiff first and this is a kind of an obvious fact maybe but perhaps not as highlighted as clearly in the briefing as it might have been the company that designed and markets the device ethicon endo surgery inc which is in this district is going to be in the jurisdiction of the german court we have to submit to that court and did as a condition of the dismissal that german court therefore will have the ability to require the production of evidence that's in the control of ethicon endo surgery for a trial in germany even if there  evidence here in the united states that isn't entirely in the control of that the con end of surgery it's a little difficult to see what design evidence wouldn't be in our possession that the court in germany could require us to produce but even if there was other evidence of the district court correctly pointed out they can get that evidence for the german trial by resorting to the procedure in title twenty eight of the u s code section seven hundred eighty two we stipulated in the court below that it would be proper for them to obtain evidence in the u s for a german trial through the use of that procedure works the other way to i mean so there's ways you can get evidence from the other jurisdiction in international the question is whether it's more convenient or not i think the district court was with well within its proper discretion in concluding that the balancing of convenience is tipped very strongly in favor of the occurred in surgery with this device so we know what the question is there was a defect in the device whether design or manufacturing or the surgeon didn't use the device properly or the circumstances or the condition of the patient were simply such that it's despite the surgeons best efforts at a properly designed and manufactured device the injury occurred but the critical but i mean what if the whole issue is whether they defined it carelessly whether they designed it carelessly or not well what if there's not too much dispute as to how the injury were occurred the dispute as to whether the stapler should relevant key evidence is going to have is going to be what you observed when the operation occurred which might well be but it might also all turn it's conceivable that it all turns on what happen when they were designing this on the designing boards all the carelessness your honor i'm not content i see what you're saying but i'm not contending and we did not contend below that there is no relevant evidence in the u and that the only relevant evidence is in germany what we do contend is first clearly there is critical evidence in germany because the surgeon in the surgical team are the only people with direct first hand knowledge of what actually happened in the surgery in which the injury occurred second all of the evidence that's required in the united states is available to the plaintiffs either through the german court's jurisdiction over the seller or through the statutory procedure but by contrast we can't bring the surgeon to a u s trial we can seek a deposition of the surgeon under the hague convention it's limited in within his control if he was suing in the us if there were other documents in germany that proved to be relevant to the theories on the case we can't obtain those because if the plaintiff doesn't control them he can't produce them in a new plane of saying that they've consented to make themselves available and one would assume also any records they have of the plaintiff have the will the plaintiffs obviously if the cases tried in the us will have to testify here they've certainly consented to give us all of the medical records within their control so that's not the issue the issue was other evidence in the hands of third parties on the critical third parties here are the people who know what actually happened to mr and are the german doctors at least thirteen identified in the plaintiff's disclosure and i want to note one thing about those doctors had agreed to cooperate i don't think that's a stablished by in fact i don't think there's any evidence in the record what's in the record is a statement by mr heffer ran i've spoken to the doctors he doesn't specify exactly which ones and they've agreed to cooperate to do what to testify in germany to give a complete deposition to give a deposition on some issues it's not enforceable what he's what's what you get the equivalent of that of the hague convention and just that it would be interviewed by the judge rather than by the attorneys and some other formal differences and i think your honor that goes to a couple of very important point and a very valid point that the dinner is yes yes you can get testimony within the scope of the letter or requesting from the u s court you get someone to drive craft a good letter of requests germany's a pretty solid partner in respect to that kind of stuff they don't have a flighty judicial system and have a regular judicial system if they get the and in a deposition in ohio you're not always sure what you're going to get that may be your honor but two points first of all one important point that i think the district judge made that's a very valid point if the case is litigated here the parties are litigating on an on equal playing field because the plaintiff gets plenary u s style discovery of the defendants and any third party witnesses or sources of information in the u s we don't get that in germany we have a much more restrictive ability to get evidence not saying we can't get any evidence but the playing field clearly isn't level if mr heffer ensues where he lives where he lives and where the injury happened both parties are on a level playing field any critical witnesses that either party controls can be brought to trial and the german doctors who have the most direct knowledge can be brought to trial along with any defense witnesses that the german court tells us to produce i don't think also your honor that it's reasonable to dismiss much of the german proof as well they're just damages evidence first the doctors have knowledge of what actually happened that goes to liability but i have to say my client if we are held liable is certainly going to be very concerned about how we're going to defend the damages claim so that evidence is a critical part of the case and it's just as important as any other evidence in the case the balancing of what are the conveniences in germany how can the case be fairly tried in germany how can the case be fairly tried in the u s present some debatable issues but it be and your honor that balancing was committed to the discretion of the district court and only if his judgment about the relative conveniences is a clear abuse of discretion can his decision in that respect be reversed but above the weight that the court gave to the choice of the forum by the plaintiff here  arguments about that and first your honor i think although we have we argued below and here that the heightened deference that the plaintiff is calling for isn't required on the facts of this case in fact if you go back to the district court opinion the district court on the third page of his opinion in the very first statement under standard of review laid out exactly the test that the plaintiff has argued for in his so i submit the district court provided the deference that plaintiff says is called for but as judge rogers noted in his earlier question and this this ties to the earlier opinion of the court and do the plaintiff connection to the us is very attenuated here and into how the court said it isn't necessary for the district court to find make an explicit finding of oppression and vexation especially when the s connection of the plaintiff is attenuated the only connection here is the broth fact of citizen ship and everything else every ta is in germany he's a german resident you say th germany well your honor both parties obviously look to be in a forum that they think is a forum that will favor their litigation of the case but there's a there's actually a record here it's clear in the record the plaintiff wants to be in a us court because he thinks he's going to get a lot more money from the us jury they explicitly argue that that was one of the reasons they think germany is an inadequate forum we could also says be suspicious that you all want to have it in germany because you're going to be on the hook for a lot less money and it we may very well be awarded less money against us in germany the german law is going to apply in either place and that's going to limit the exposure to some degree but from from our point of view your honor we can defend this case anywhere in terms of producing evidence because we can take our witnesses anywhere we can't get the critical witnesses in germany to a trial here and that's really the central issue from our point of view i'd like to first touch on counsel's statement that there are quote debatable issues with regard to the conveniences and the weighing of the conveniences again the standard is that there's a heavy burden on the defendants to prove that the the balancing of the private and public interest factors way heavily in favor of a trial in a forum for an i'm sorry for a foreign forum so the idea that that it's debatable leads me to believe that it is not it does not weigh expensive and want to also add to the cost of having to litigate in germany because you centrally have to bring a lawsuit in you have to bring an action in the district in which you're looking for for evidence so that just adds to the cost it also as far as i'm aware only permits you to obtain deposition testimony so in that regard the party's going to be on similar footing in terms of obtaining testimony from witnesses in the two different forums whether it's an inconvenience on the plaintiff in germany having to obtain evidence in united states or an inconvenience on the defendants here in the us having to use the  person voluntarily if it's in their disclosure i assume they would but to the extent that there is any other evidence the plaintiffs would have to use seven hundred eighty two just like the defendants would have to use the hague convention if if the case were tried  here again a very important private interest factor to consider is that it's prohibitively cost if the cost of living gating in germany is prohibitive for the plaintiffs and as mr hafen set forth in his declaration he essentially will not be able to bring suit and germany and candidly i believe the defendants are relying on that fact and as judge rogers pointed out it you know it is interesting that a defendant works well yes around it there's there's that aspect there's no contingency fee system in germany there is a contingency fee system but it's it's rarely used and most of the time plaintiffs have to retain attorneys and pay the attorney at least thirty to fifty percent of the anything in the record that you can point to that in which the plaintiffs have presented financial records or other type of affidavit that would indicate they are unable to afford to bring this case in germany and that without it being tried you're presented here in the united states they would need to drop this case no your honor we didn't submit any any form of bank statement or is there any proof of any kind regarding that well you the the affidavit of our expert who sets forth the specific costs for having that they file afford it is my question i understand read by noach talk about the cost it's more expensive for there are costs but what about whether or not they can afford to pay those costs it's just the affidavit that we have from mr heffer and acknowledging those costs the specific cost that our expert set forth and saying that he would be unable to pay those costs and bring a lawsuit in germany