J-A22042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN A. VARS, AN INDIVIDUAL, 

Appellant

v.

B. BRAUN MEDICAL INC., A 

PENNSYLVANIA CORPORATION, B. 

BRAUN INTERVENTIONAL SYSTEMS 

INC., A DELAWARE CORPORATION, 

AND B. BRAUN MEDICAL S.A.S., A 

FRENCH CORPORATION,

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3052 EDA 2018

Appeal from the Order Entered August 22, 2018

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 01155 June Term, 2017

BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 17, 2019

The Appellant, Stephen A. Vars (Vars), appeals the order of the 

Philadelphia Court of Common Pleas dismissing his products liability suit on 

the ground of forum non conveniens. Vars argues that the trial court abused 

its discretion because the Appellees, B. Braun Medical Inc. (BMI); B. Braun 

Interventional Systems, Inc. a Delaware Corporation (BIS); and B. Braun 

Medical S.A.S., a French Corporation (B. Braun France) (collectively, the Braun 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Defendants), failed to show that Pennsylvania is an inconvenient forum for his

claims. We reverse and remand.

Vars’ products liability action arises from the implantation of a 

“VenaTech LP Vena Cava Filter” (VenaTech Filter).1 At the time of the 

implantation in 2005, Vars resided in Washington where the procedure was 

performed. In 2015 and 2016, while residing in Washington, Vars underwent 

CT scans which allegedly revealed that the VenaTech Filter had malfunctioned, 

causing recoverable damages.

According to Vars’ complaint, the device is designed to be implanted in 

a person’s inferior vena cava, a central vein in the heart. Complaint, 

6/16/2017, at ¶¶ 17-18. The device’s purpose is to prevent blood clots from 

traveling from the legs and pelvis to the heart and lungs. Id. at ¶ 19. Once 

the VenaTech Filter is literally hooked to the heart, it remains fixed in place 

permanently and cannot be safely removed. Id. at ¶¶ 20-22.

Vars asserts that the device “failed” and has “penetrated through the 

caval wall,” posing a danger of the fatal medical events the device was meant 

to prevent, as well as the risk of further perforation of his heart. Id. ¶¶ at 

23-25. This will require “ongoing medical care and monitoring for the rest of 

his life.” Id. at ¶ 24.

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1 The facts are gleaned from the trial court’s opinion and the certified record.
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Vars filed his complaint in 2017 in Philadelphia County, alleging seven 

causes of action: Negligence, Strict Products Liability/Failure to Warn, Strict 

Products Liability/Design Defect, Strict Products Liability/Manufacturing 

Defect, Breach of Implied Warranty of Merchantability, Negligent 

Misrepresentation, and Punitive Damages.

Within the next year and before the parties began discovery, BMI and 

BIS filed a two-part motion based on the doctrine of forum non conveniens. 

First, they moved to dismiss Vars’ complaint, arguing that the suit should be 

refiled in his home state of Washington where the device was implanted. 

Alternatively, they sought for the case to be transferred to Lehigh County, 

Pennsylvania. Once B. Braun France joined the motion, the Braun Defendants 

all consented to a trial in Washington and to waive a statute of limitations 

defense in the event of dismissal.2

The trial court heard argument and took evidence on the forum non 

conveniens issue. It was undisputed that each of the Braun Defendants had 

a role in putting the VenaTech Filter into the stream of commerce, but have 

varying degrees of local presence in Vars’ chosen forum. BMI is a 

Pennsylvania corporation with a headquarters in Lehigh County, Pennsylvania. 

BIS is a Delaware corporation with a principal place of business in Lehigh 

____________________________________________

2 The Braun Defendants filed preliminary objections to venue, but the trial 

court ruled that venue was proper based on the Braun Defendants’ contacts 

with Philadelphia County. This ruling is not now at issue.
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County. B. Braun France is a French corporation with no physical presence in 

the United States.

B. Braun France designed and manufactured the VenaTech Filter, but 

the Food and Drug Administration (FDA) only approved the domestic sale and 

marketing of the device in 2001. From that date and on an exclusive basis, 

BMI imported and distributed VenaTech Filters throughout the United States.

In 2007, BMI transferred its FDA clearances to BIS, who has since 

maintained exclusive rights to the VenaTech Filter in the United States. BMI 

and BIS allegedly marketed the device as safe for permanent placement in a 

human subject’s heart. Either BMI or BIS marketed and sold the particular 

device at issue in Vars’ suit, along with every other unit of the VenaTech Filter 

distributed in the United States since 2001.

At the hearing on the subject motion, the Braun Defendants emphasized 

that VenaTech Filter was designed and manufactured in France; that Vars had 

the VenaTech Filter implanted in Washington; and that he has never resided 

in Pennsylvania. They claimed that neither the parties nor Pennsylvania has

an interest in the litigation and that another forum is available and more 

convenient for trial purposes.

Notably, however, the Braun Defendants introduced an affidavit by the 

president of BIS, Paul O’Connell (O’Connell), who stated that although he 

resides in Illinois, there are other “potentially relevant witnesses from BIS –

for example, the employees who are responsible for distribution, sales, and 
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post-market surveillance of the VenaTech – reside and work in Lehigh 

County.” O’Connell, Affidavit, ¶ 13 (emphasis added).

In the subject motion, the Braun Defendants identified and described 

these potential trial witnesses as follows:

 Doris Benson, a Senior Market and Quality Associate who can 

testify to distribution, sales, post-market surveillance of the 

VenaTech Filter.

 Peter Flosdort, an engineering manager responsible for the 

Quality/Regulatory/Product Development departments, which 

includes “complaint reporting and medical device report” and 

investigation of “non-conforming lots” in the event of a recall.

 Jason Curtis, a Project Manager who is a “Quality” designee for 

BIS in charge of “certain tasks that only he is authorized to 

perform.”

BMI and BIS, Motion to Dismiss or Transfer for Forum Non Conveniens, 

8/8/2017, at 9-12. All three of those BIS employees stated in an affidavit 

that it would be a hardship for them to leave their homes in Lehigh County in 

order to attend a trial 60 miles away in Philadelphia County.3

On August 21, 2018, the case was dismissed. In its opinion, the trial 

court found that Pennsylvania has little interest in resolving Vars’ products 

liability claims because “the record indicates – despite the corporate presence 

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3 The Braun Defendants argued that Philadelphia County would be so 

inconvenient for these BIS employees that the trial should be transferred to 

Lehigh County. The logical conclusion of that claim is that if a trial in 

Philadelphia County would be highly disruptive to the lives of those potential 

witnesses, then a trial in Washington would be even more so.
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of [BMI and BIS] – the decisions and documentation for the lotus of [Vars’s] 

action arose outside of Pennsylvania.” Trial Court Opinion, 2/14/2019, at 10.

The trial court outlined several other reasons for granting the dismissal. 

It reasoned that if the case were re-filed in Vars’ home state, potential 

difficulties in applying out-of-state law would be avoided and the presence of 

witnesses could more easily be ensured. Id. It was presumed that causation 

and damages would be hotly contested issues at trial, and that Vars’ medical 

care providers in Washington would be unwilling to attend a Pennsylvania trial. 

See id. at 10-11.

4

The trial court assigned little to no weight to the fact that employees of 

BMI and BIS made marketing, sale and distribution decisions within 

Pennsylvania. Id. at 11-12. The trial court ruled that the physical presence 

of any documentation in Pennsylvania or elsewhere would be immaterial

because it can be electronically transmitted. Id. at 11. The trial court did 

not reach the Braun Defendants’ alternative motion to transfer the case to 

Lehigh County.

Vars timely appealed and both Vars and the trial court complied with 

Rule 1925. In his brief, Vars asserts the following issue for our consideration:

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4 Pennsylvania has adopted the Uniform Interstate Depositions and Discovery 

Act (UIDDA), which makes non-party witnesses subject to compulsory

deposition and subpoena by a court in another state’s jurisdiction. See 42 

Pa.C.S. §§ 5331-71. Washington has also adopted the UIDDA. See Wash. 

Rev. Code § 5.51.902.
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[D]id the Trial Court misapply the law or render a manifestly 

unreasonable decision by overruling [Vars’s] right to choose his

forum and . . . granting the Appellees’ motion to dismiss based on 

forum non conveniens when the public and private factors do not 

weigh strongly against his chosen forum?

Appellant’s Brief, at 5.

The Braun Defendants urge us to affirm the dismissal order, stressing 

as they did below that any relevant conduct in Vars’ action occurred outside 

of Pennsylvania. They argue that Vars is a Washington resident who had the 

subject surgery in Washington, and that the VenaTech Filter was designed and 

manufactured in France. They echo the trial court’s findings that a trial in 

Pennsylvania would be impractical.

5

We recently considered arguments and evidence materially identical to 

those here, in McConnell v. Braun Medical, Inc., –––A.3d--–, 2019 PA

Super 310 (filed October 16, 2019). We concluded in McConnell that the 

plaintiff’s case could be heard in Pennsylvania and that the trial court 

improperly dismissed the case based on forum non conveniens. For nearly 

identical reasons to those outlined in McConnell, the order of dismissal in the 

present case must be reversed. However, because the issue of transfer from 

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5 The Braun Defendants also contend that the case should be heard elsewhere 

because the Philadelphia County courts are too congested to handle it 

promptly. This argument is largely based on facts which cannot be considered 

on appeal for lack of a basis in the certified record. In addition, the record 

contains no information about the caseloads of alternative forums, so it is 

impossible to compare their respective capacities.
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Philadelphia County to Lehigh County is not before us, the Braun Defendants’ 

pending motion may be considered by the trial court on remand.

Order reversed; case remanded; jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/17/19