A TTORNEYS FOR A PPELLANTS

Gary C. Robb Kansas City, Missouri

Roy T. Tabor Susan W. Rempert Indianapolis, Indiana A TTORNEYS FOR A PPELLEE B ELL H ELICOPTER T EXTRON I NC

. Edward R. Moor Thomas H. Neuckranz Howard Huntington James Beal Chicago, Illinois

Debra A. Mastrian Indianapolis, Indiana A TTORNEYS FOR A PPELLEE R OLLS

- R OYCE C ORPORATION Nicholas C. Pappas Darren A. Craig Julia Blackwell Gelinas Indianapolis, Indiana

A TTORNEYS FOR A PPELLEE H ONEYWELL I NTERNATIONAL I NC

. Steven E. Springer Crystal G. Rowe Indianapolis, Indian a

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________

No. 49S04

- 1207

- CT

- 434

D ALMAS M AURICE O TIENO A NYANGO AND J ANE T INNA A GOLA O TIENO , AS N ATURAL P ARENTS AND N EXT OF K IN OF I SAIAH O MONDI O TIENO , D ECEASED , Appellants (Plaintiffs b e low)

,

v.

R OLLS

- R OYCE C ORPORATION , H ONEYWELL I NTERNATIONAL I NC ., AND B ELL H ELICOPTER T EXTRON I NC ., Appellees (Defendants b e low)

.

_________________________________ Appeal from the Marion Superior Court, No. 49D07

- 1003

- CT

- 9655

The Honorable Michael D. Keele, Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A04

- 1011

- CT

- 679

_______________________ __________

July 30 , 20122

Sullivan, Justice.

Parents of a young man killed in a bizarre helicopter acciden t in British Columbia appeal

an Indiana trial court ’ s dismissal of their complaint in favor of the Canadian forum, arguing that

their claim should be tri ed here because they would only be entitled to nominal damages u n der

British Columbia law. Because we conclude that British Columbia provides an available and adequate forum under applicable law, and that the trial court did not otherwise abuse its discr etion in dismissing the complaint on the ground of forum non conveniens , we affirm the trial

court ’ s jud g ment.

Background

This appeal arises out of an almost unbelievable accident occurring on May 13, 2008, in

British Columb ia, Canada. On that day, 20

- year

- old Isaiah Omondi Otieno, a Kenyan cit i zen and student at the College of the Rockies in Cranbrook, British Columbia, was mailing a le t ter
from Canada to his parents in Kenya when a helicopter flying overhead lost power. The helico pter crashed to the ground and killed Otieno along with the helicopter ’ s pilot and two pa s sengers.

On March 3, 2010, Isaiah ’ s parents, Dalmas Maurice Otieno Anyango and Jane Tin na Agola Otieno (collectively, the “ Otienos”), sued Bell Helicopter Textron Inc., Rolls

- Royce

Cor p., and Honeywell International Inc. (collectively, the “ Defendants”), in Marion County, I ndiana, for the wrongful death of their son. The Defendants are connected to the helicopter as fo llows:

 The helicopter was manufactured in Texas in 1974 b y Bell Helico p ter.

 The helicopter engine was manufactured in Indiana by the Allison Division of Ge neral Motors, which sold its assets to a company that was later purchased by Rolls

Royce.

 The helicopter ’ s engine components were designed at Honeywell ’ s faci lity in Indiana and then manufactured in North Carolina.

The Otienos sought to recover on theories of strict liability and negligence based on the design and manufacture of the helicopter engine and e n gine component parts and on the failure3

to cert i fy an d recommend safe and proper replacement parts. Subsequently, representatives of the three other pe o ple killed in the accident sued the Defendants and others in British Columbia

on similar theories.

In June, 2010, the Defendants filed both a motion to dismiss the Otienos ’ lawsuit purs uant to Indiana Trial Rule 4.4(C) on the ground of forum non conveniens 1

– that Indiana was an “inconvenient forum” compared to Bri t ish Columbia

– and a stipulation pursuant to Trial Rule 4.4(D) that they would (a) submit t o the personal jurisdiction of and (b) waive any statute of

lim i tations defenses in British Columbia. After considering the evidence and the written and oral arguments of counsel, the trial court granted the Defendants ’ motion to dismiss in favor of Bri ti sh Columbia as the more co n venient forum.

The Otienos appealed, arguing that the trial court abused its discretion in granting the D efendants ’ motion to dismiss based on forum non conveniens . Specifically, the Otienos cha llenged the trial court ’ s find ing that British C o lumbia provided an adequate forum in which to pursue their cause of action. The Court of Appeals affirmed the trial court ’ s dismissal. Anyango

v. Rolls

- Royce Corp. , 953 N.E.2d 1147, 1153 (Ind. Ct. App. 2011).

The Otienos seek, and we now grant, transfer, thereby vacating the opi n ion of the Court of Appeals. Ind. Appellate Rule 58(A).

Discussion

Trial Rule 4.4(C) governs the dismissal of litigation based on forum non conveniens :

Jurisdiction under this rule is subject to the pow er of the court to order the litig ation to be held elsewhere under such reasonable conditions as the court in its di scretion may dete r mine to be just.

1 Forum non convenien s is defined as “[t]he doctrine that an appropriate forum

– even though competent under the law

– may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in wh ich the action might also have been properly brought in the first place.” Black ’ s Law Dictionary 726 (9th ed. 2009).4 In the exercise of that discretion the court may appropriately consider such factors as: (1) Amenability t o personal jurisdiction in this state and in any alternative forum of the parties to the action; (2) Convenience to the parties and witnesses of the trial in this state in any alternative f

o rum; (3) Differences in conflict of law rules applicable in this state and in the alternative f

o rum; or (4) Any other factors having substantial bearing upon the selection of a convenient, re a sonable and fair place of trial.

Ind. Trial Rule 4.4(C). The language of the rule itself entrusts this determination to the trial

court and so our review of a trial court ’ s dismissal under this rule is limited to abuse of discr etion. Freemond v. Somma , 611 N.E.2d 684 , 690 (Ind. Ct. App. 1993) (citing Killearn Props., Inc. v. Lambright

, 176 Ind. App. 684, 687, 377 N.E.2d 417, 419 (1978)), tran s. denied . A trial

court abu s es its discretion when it “arrives at a conclusion that is clearly against logic and the

natural inferences to be drawn ther e from.” Id. 2

Both the Defendants and the Otienos submitted rather exte n sive briefs and evidence t o the trial court in support of their respective positions . The trial court also held a hea r ing on the

Defendant s ’ motion. The Defendants argued that this case should be litigated in British Colu mbia because the events giving rise to the suit occurred th ere and a parallel suit is pending there

. They listed several considerations related to the inconvenience of an Indiana fo rum: the witnes ses are located in Canada; Canadian officials investigated the case and disassembled the engine

and e n gine components at issue; the physical evidence is in Canada; witnesses knowledgeable about damages are located in Canada (or Kenya); obtaining testimony of witnesses, doc u ments, and physical evidence would be limited by the procedures of international discovery; and the case would be governed by Canadian law. In response, the Otienos argued that the bulk of the

evi dence related to their product

- liability action is in the United States ( and in Indiana in partic u-

2 We note language in most decisions of t he Court of Appeals applying Trial Rule 4.4(C) to the effect that “[ t ] he purpose of [ the rule ] is to permit a case to be litigated in another [forum] upon a showing that litigation in Indiana is so inconvenient that substantial injustice is likely to result.” Emp ’ rs Ins. of Wausau v. Recticel Foam Corp. , 716 N.E.2d 1015, 1021 (Ind. Ct. App. 1999) ( citing Freemond , 611 N.E.2d at 691), trans. denied . This language appears to date to Killearn Properties

, when it appeared with a citation to “1 Harvey, Indiana Practice , Author ’ s Comments 4.4(C) p. 313.” 176 Ind. App. at 687, 377 N.E.2d at 419

. It woul d conflict with the explicit discretionary authority gr anted to the trial court in Trial Rule 4.4(C) if a motion to dismiss could not be granted unless it was clear that litigation in Indiana would be so inconvenient that “ substantial in justice ” would be l ikely to result.5

lar ) and that

, if tried in Indiana, the case would not be go verned by Canadian law . Moreover,

u s ing the language of Trial Rule 4.4(C), they argued that it would not be “just” to require them to litigate this case in British Columbia because their action would not be economically viable

there

. Specifically, they c ontended that under ap plicable British Columbia law, “ no monetary compensation would be permitted other than recovery of burial or funeral expens es.” Pet. to

Trans fer i (Questions Presented on Tran s fer)

.

Judge Keele ’ s order granting the Defendants ’ dism issal motion addressed each of the

enumerated factors in Trial Rule 4.4(C) as follows:

4. The Defendants have agreed to submit to personal jurisdiction in British C olumbia, Canada. See [ Ind. Trial] Rule 4.4(C)(1). The Defendants have agreed to waive or tol l any applicable Canadian statute of limitations in Brit ish C olumbia, Canada until Plaintiffs have had reasonable opportunity to file their claims in British Columbia, Canada, not to exceed 120 days from the date of this ru l ing.

5. Many witnesses resid e in B ritish Columbia, Canada and are outside the su bpoena power of this Court. Most, if not all

, anticipated witnesses which are United States citizens are employees of the Defendants residing in various states within the United States. The Defendants have ag reed to make these individuals available for litigation in British Columbia, Canada. On the whole, it would be more convenient, if not necessary, for the parties and wi tnesses for the claims to be pursued in British Columbia, Canada, rath er than in Indian a. See [ T.R.] 4.4(C)(2).

6. It is anticipated that the claims will be subject to the substantive law of British Columbia, Canada and not of Indiana. See Simon v. United States , 805 N.E.2d 798 (Ind. 2004)[; T.R.] 4.4(C)(3).

7. There are substantial addition al factors which weigh in favor of this matter b eing considered by a Canadian court rather than this Court in Indiana. See [ T.R.] 4.4(C)(4)[.] These include:

(a) It is undisputed that the court system in British Columbia, Canada

, is adequate and available t o Plaintiffs.

(b) There is already litigation pending in British Columbia, Canada, r egarding the helicopter crash which seeks compens a tion for families of the vi c tims.6 (c) Rulings and discovery orders by this Court may be difficult, if not i mpossible, to enforce as to persons outside this Court ’ s j u risdiction.

(d) It is anticipated that there will be significant problems in dealing with resolving the application of Canadian law.

(e) The majority of public interest factors favor resolution of this dispute by a court in British Columbia, Canada. Indiana has little, if any, pu blic interest in the outcome of this litigation.

(f) A foreign citizen that chooses Indiana as a forum rather than his own nation is entitled to a substantially diminished presumption that Ind iana is a convenient forum. McCracken v. Eli Lilly & Co. , 494 N.E.2d 1289 [ (Ind. Ct. App. 1986)

. ]

Appellants’ App. 6

- 7.

In their appeal to th e Court of Appeals, the Otienos challenged only the trial court ’ s fin ding in paragraph 7(a) above. Specifically, they too k issue with the trial court ’ s locution that the availability and adequacy of the British Columbia court system was “undisputed.” They mai ntained that this w as in di s pute because they have “no adequate remedy in British Columbia.” Appe l lants ’ Br. 6.

In their brief, the Otienos describe how “ an esteemed practitioner in British Columbia

. . . has unequivocally explained that British Columbia pr o vides Plaintiffs no economically adequate remedy. ” Id. at 8 (citation omitted) . They also submitted an affidavi t from an Indiana lawyer providing her opinion that the Otienos ’ wrongful death action would have “a significant seven figure value” here. Appellants ’ App. 565. And they provide case citations from j u risdictions other than Indiana that they say support t heir contention that di s miss al on the ground of forum

non conveniens should be denied when the remedy in the alternative forum is inadequate

.

All of this is to say that the sole reason the Otienos contend that the Defendants ’ motion

to dismiss should be d enied is because their wrongful

- death action would have “a significant7

seven figure value” if litigated in Ind i ana , whereas it would have only nominal value if litigated

in Canada. 3

In sum, this is not so much a debate over the availability or adequac y of the British C olumbia courts as it is a debate over the substantive law that would govern the Otienos ’ reco v ery in the event they were able to establish liability. And this is precisely what was at issue in Piper Aircraft Co. v. Reyno , 454 U.S. 235 (1 981), still the leading United States Supreme Court case in

this area of forum non conveniens law.

Piper Aircraft ’ s facts and procedural posture resemble this case. In short, several Scottish

citizens and residents had been killed in the crash of a chart ered airplane in Sco t land. Id. at 238

- 39. Their estates filed a wrong ful

- death action in the U nited S tates against the company that manufactured the plane and the comp any that manufactured the plane ’ s propellers. Id. The plaintiffs ’ explicit purpose in filing their lawsuit in the U nited S tates rather than in Scotland was

that U nited S tates laws regarding liability, capacity to sue, and damages were more favorable to their po sition than those of Scotland. Id. at 240. The d istrict court granted the defe ndants ’ m otion to dismiss on the ground that Scotland was the more convenient forum

. Id. at 24 1

. The

Third Circuit reversed , holding that dismissal is automatically barred where the law of the alte rnative forum is less favorable to the plaintiff than the law of the forum chosen by the plai n tiff.

Id. at 246.

This is, of course, essentially the rule that the Otienos ask us to adopt here

. But the S upr eme Court rejected this approach, concluding that dismissal could not be denied “merely by showing that th e substantive law that would be applied in the alternative forum is less favor a ble to the plaintiffs than that of the chosen forum.” Id. at 247. It then went on to say

– i m portantly

3 Of course, the Otienos ’ aversion to British Columbia law is only a relevant consideration here if the Otienos ’ claims would be governed by different law in an Indiana court than in the Canadian forum. Said differently, given the Otienos ’ analysis of Canadian law, it would do them no good to litigate in Indiana if Canadian law were to govern the proceedings here. For their part, the Defendants point to the fact that Judge Keele “anticipated that the claims will be subject to the substant ive la w of British Columbia, Canada and not of Indiana,” a conclusion that the Court of Appeals specifically affirmed, Anyango , 953 N.E.2d at 1151. There is a temptation

– which we resist

– to decide the choice

- of

- law question because it would be dispo s it ive if we were to come to the same conclusion as our colleagues on the trial court and Court of A p peals

.8

for our purposes

– that “[ t ] he possibility of a change in substantive la w should ordina r ily not be given conclusive or even substantial weight in the forum non conveniens in quiry .” Id.

The Court provided several reasons for its conclusion:

 A n earlier decision of the Court, Gulf Oil Corp. v. Gilbert , 330 U.S. 501 (1947) , “r ecognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law.” Piper Aircraft , 454 U.S. at 249 (footnote omi t ted)

.

 “Under Gilbert , dismissal will ordinarily be appropriate where trial in the plaintiff ’ s cho sen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of co nve n ience supporting his choice. If substantial weight were given to the poss ibility of an unfavorable change in law, howe ver, dismissal might be barred even where trial in the chosen forum was plainly inconvenient.” Id. (internal footnote omi t ted )

.

 The “Court ’ s earlier forum non conveniens decisions

. . . . repeatedly emph asized the ne ed to retain flexibility. . . . If c entral emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.” Id. at 249

- 50.

 “[I]f conclusive or substantial weight were given to the possibility of a change in law, t he forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requireme nts are o f ten easily satisfied.

. . . Ordinarily, . . . plaintiffs will select that forum whose choice

- of

- law rules are most adva ntageous. Thus, if the poss ibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper. ” Id. at 250.

 If

, whenever a “foreign plaintiff named an American manufacturer as defen dant, a court c ould not dismiss the case on grounds of forum non conveniens where dismissal might lead to an unfavorable change in law[,] . . . American courts, which are already extremely attractive to foreign plaintiffs, would b ecome even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts.” Id. at 251

- 52 (internal footnotes omi t ted). 4

4 In making this point, the Court also appropriately said that while “the possibility of a change in law unfavorable to the plaintiff should not be g iven substantial weight, we also necessarily hold that the possibi l ity of a change in law favorable to defendant should not be considered.” Piper Aircraft , 454 U.S. at 252 n.19

.9

The Otienos quote a passage from Piper Aircraft in their papers : “Of course, if the rem edy provided by the alterna tive forum is so clearly inadequate or unsatisfactory that it is no rem edy at all, the unfavorable change in law may be given substantial weight; the . . . court may co nclude that dismissal would not be in the interests of justice.” Appellant s ’ Br. 8 (alt eration in original) ( quoting Piper Aircraft , 454 U.S. at 254 )

. But t he full quote from Piper Aircraft is as

fo l lows:

We do not hold that the possibility of an unfavorable change in law should

never be a relevant consideration in a forum non conveniens i nquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsa tisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. In these cases, however, the remedies that would be pr ovided by the Scottish courts do not fall within this category. Although the rel atives of the decedents may not be able to rely on a strict liability theory, and al though their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.

Piper Aircraft , 454 U.S. at 254

- 55 (emphasis in original) (internal footnote omitted) . Far from being an expansive admon ition against dismissal as the Otienos assert, the quotation is o n ly a passing aside that a highly anomalous situation will permit (not require) the trial court to weigh the inadequacy of the remedy in the alternative forum. This point is made clear by th e last se ntence: even though Scottish law did not recognize strict liability in tort, only permitted wrongful

death actions when brought by a decedent ’ s rel a tives, and only all owed relatives to sue only for

“ ‘ loss of support and society, ’ ” id. at 240 (foot note omitted) , the Court specifically said that there was “no danger that they will be deprived of any remedy or treated unfairly,” id. at 255

.

Although not binding on us, 5 we find the reasoning of Piper Aircraft highly persuasive and adopt it. And in fa ct, there is already Indiana authority on point. In McCracken v. Eli Lilly

5 Piper Aircraft did not purport to announce a rule of federal constitutional law

, and the Supreme Court subsequently referred to forum non conveniens as a “common

- law” doctrine. Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 722 ( 1996) (citing Am

. Dredging Co. v. Miller , 510 U.S. 443, 449 n. 2 (1994) ) . In any event, the Supreme Court noted that , in its forum non conveniens decisions, the state law of forum

non conveniens dismissals had been “virtually identical to federal law

. ” Piper Aircraft , 454 U.S. at 24 8 n.13.10

& Co. , the Court of Appeals affirmed a trial court ’ s grant of a defendant ’ s motion to dismiss u nde r Trial Rule 4.4(C) on the ground that the United Kingdom was a more convenient fo rum :

[A]lthough a potential products liability award to a plaintiff might be smaller in the United Kingdom and even though litigation there might be more expensive and more difficult, there appears no danger that the plaintiffs would be treated u nfairly o r be deprived of their remedy. Conversely stated, the present plaintiffs would have to demonstrate that the alternative forum is so inadequate or unsati sfactory that there is no remedy at all.

494 N.E.2d 1289, 1293 (Ind. Ct. App. 1986) ( citing Ledingham v. Parke

- Davis Div. of Warner

Lambert Co. , 628 F. Supp. 1447, 1450 (E.D.N.Y. 1986) )

. The Ledingham case in turn relied on the Supreme Court ’ s analysis in Piper Aircraft

. In Ledingham , the trial court was asked to di smiss the plaintiff ’ s lawsuit in favor of a Canadian forum. 628 F. Supp. at 1449. The court had evidence that Canada did not recognize a claim of strict products liability, did not permit repr esentat ion of clients on a contingency

- fee basis, and impose d an upper limit on the recovery of

nonpe cuniary general damages. Id. In ruling that these facts did not establish an “inadequate”

f o rum, the court said:

Faced with similar considerations, the Supreme Court held that the poss ibility that the law of the alternative forum will be less favorable to the plaintiff, while a factor, is not suffi cient, alone, to bar dismi s sal on the ground of forum non conveniens

. See Piper Aircraft , 454 U.S. at 247. The Court went on to state that:

[ I ] f the remedy provided by the alternative forum is so clearly i nadequate or unsatisfactory that it is no remedy at all, the unfavor able change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of ju s tice.

Id. at 254. See Dowling v. Richardson

- Merre ll, Inc. , 727 F.2d 608, 613 (6th Cir. 1984).

Thus, although plaintiff ’ s potential damage award may be smaller in Ca nada, and although litigation there might be more expe n sive and more difficult, the Court finds that there is no danger that plaintiff will be deprived of a remedy or treated unfairly there. See Dowling , 727 F.2d at 615. . . . [T]he courts of Canada provide an ad e quate alternative forum for this litigation

. . . .11

Ledingham , 628 F. Supp. at 1449

- 50 (first and last alteration added)

. See al so Donald J. Carney,

F o rum Non Conveniens in the United States and Canada , 3 Buff. J

. Int ’ l L. 117, 133

- 135 (1996) (discussing Ledingham ). Based on these authorities, we hold that a forum is “adequate” for pu rposes of Trial Rule 4.4(C) so long as the part ies will not be deprived of all remedies or treated

u n fairly.

As noted above, the Otienos have supplied us with nine case citations from jurisdictions other than Indiana that they say support their contention that dismissal on the ground of f o rum

non con veniens should be denied when the remedy in the alternative forum is inadequate. We have reviewed these cases and they do not change our view.

Of the nine cases cited, five of them do not address the point the Otienos make here

– that

dismissal on the gr ound of forum non conveniens should be denied bec ause the remedy in the

alternative forum is inadequate. R a ther, each of them stands for the proposition that a trial court

does not abuse its discretion when it denies dismissal on the ground of forum non c onveniens

where there was a material practical impediment (and not, to repeat, an inad e quate remedy) to the nonmoving party litigating the claim in the alternate forum. We set forth these cases and

the ir respective practical impe d iments in the margin. 6

6 See Manu Int ’ l, S.A. v. Avon Prods

. , Inc. , 641 F.2d 62, 6 6

- 6 7 (2d Cir. 1981) ( reversing trial court ’ s dis missal where witnesses were already in plaintiff ’ s ch o sen forum or could as easily be brought there as to Taiwan; translation problems were much more serious in Taiwan; plaintiffs “as a practical matter” would not go “to Taiwan, hire counsel there, and then try, without compulsory process, to get wi t nesses to go there from England, New York, and Belgium”); Thomson v. Palmieri , 355 F.2d 64, 66

- 67 (2d Cir. 1966) (upholding denial of dism issal where “ [t] he central que stion [was] one of convenience, and . . . . plaintiff . . . [said] that it could not afford to bring the matter elsewhere ”); McKrell v. Penta Hotels (France), S.A. , 703 F. Supp. 13, 14

- 15 (S.D.N.Y. 1989) ( denying motion to di s miss where plaintiff lacked fi nancial ability to litigate claim in France because she owed $10,000 in medical bills which she was un able to pay, her health i n surance would expire soon, and she had assets of under $50); Hodson v. A. H. Robins Co. , 528 F. Supp. 809, 818 (E.D. Va. 1 981) ( denying motion to dismiss where attorneys in En gland were not permitted to accept a case on a contingent

- fee arrangement; plaintiffs lacked sufficient funds to pursue actions in England and were unable to obtain legal aid ), aff ’ d , 715 F.2d 142 (4th Cir. 19 83), disapproved on other grounds

, Van Cauwenberghe v. Biard , 486 U.S. 517, 52 7 n.6 (1988) ; Fiorenza v. U.S. Steel Int ’ l , Ltd. , 311 F. Supp. 117, 120 (S.D.N.Y. 1969) ( denying motion to dismiss where attorneys in Bahamas were not permitted to accept a case on a contingent

- fee arrange ment and plaintiff could not prepay a retainer; plaintiff had no source of income, was unable to work, and was li ving with his brother who su p ported him)

.12

Two of the nine cases cited by the Otienos combine a number of practical impediments with the adequacy of recovery as reasons for denying a dismissal on grounds of forum non
conveniens . In Lehman v. Humphrey Cayman, Ltd.

, the court listed the plaintiff ’ s argument (disputed by the defendant) that recoveries in the Cayman Islands for wrongful death generally

do not exc eed $5,000. 713 F.2d 339, 34 6 (8th Cir. 1983). But the court also list ed several pra ctical considerations

– no contingent fees in the Cayma n Islands; no resources on the part of the plaintiff to pay a retainer; absence of jury trial; r e quirement that the plaintiff post $1,000 bond

, id. at 345

- 46

– as limiting the plaintiff ’ s “ability as a practical matter to bring suit in the altern ative fo ru m, ” i d. at 346 (citations omitted) . To our iss ue, the court said “a plaintiff ’ s sho w ing of less favorable substantive law in the alternative forum is not to be given conclusive or even su bstantial weight in a forum non conveniens determin a tion.” Id. ( cit ing Piper Aircraft , 454 U.S. at

247 )

.

In Macedo v. Boeing Co.

, the court considered that punitive damages were not recover able and that strict liability was not re cognized in the alternative forum. 69 3 F.2 d 683, 687

- 88
(7th Cir. 1982). But like the cour t in Lehman

, the court gave most of its attention to practical

co n cerns

– plaintiffs in Portugal were required to pay substantial fees in advance; attorneys in

Port u gal were not permitted to accept a case on a contingent

- fee arrangement; and the plaintiffs would be required to obtain translations for a very considerable amount of documentary proof.

Id. at 690 . The court found the alternative forum adequate: “The Supreme Court has told us that

the a b sence of a strict liability principle and the probabilit y of smaller damages do not make the remedy available in a foreign court inadequate.” Id. at 68 8 (citing Piper Aircraft , 454 U.S. at
255)

. 7

One of the nine cases, Zions First National Bank v. Moto Diesel Mex i cana, S.A. de C.V.

, 629 F.3d 520 (6th Cir. 20 10), is cited by the Otienos merely for the general proposition that di s-

7 The plaintiff in Hodson

, discussed in footnote 6, supra , argued against dismissal in part because the remedy available in England was inadequate and unce r tain , although it did not specify in what way it was inadequate. 528 F. Supp. at 817. The court dealt with this argument in a footnote, giving “little weight to the plaint iffs ’ assertion s that the remedy available in England is uncertain,” because the defendants had agreed to pay any judgment rendered against them in an En g lish court and Virginia choice

- of

- law rules dictated that the substantive law of England would be appl ied to determine the remedy if heard in Virgi nia. Id. at 819 n.8

.13

missal under forum non conveniens is proper when there is an adequate alternative forum and the

factors outlined in Gilbert point in favor of di s missal.

This brings us to the final ca se cited by the Otienos

, Turgeon v. Naparstek

, a Massach usetts trial court decision (this is not an appellate decision) in which Massachusetts residents i njured in an a u tomobile accident in Quebec opposed the defendants ’ request that the court dismiss

the case on the ground of forum non conveniens

. No s

. 96

- 6357, 96

- 6570, 1999 Mass. Super. LEXIS 24 (Mass. Super. Ct. Jan. 19, 1999) . The court concluded that

because Quebec law does not recognize common law automobile negligence a ctions and limits compensat ion to a statutory cap, plaintiffs could not bring an a ction for the remedy they seek in Quebec. Where the remedy provided by the a lternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the court may conclude that dismiss al would not be in the best interests of ju stice. Although plaintiffs received benefits under Quebec ’ s no

- fault system, the scope of relief available under Massach u setts law is greater.

Id. at *11

- 12 ( internal c i tation s omitted).

To the extent that Turg eon stands for the proposition that the adequacy of an alternative forum requires “the scope of relief available” to be at least as great as in Massachusetts, we d ecline to adopt such a rule here. We believe Piper Aircraft states the better rule

.

A pplyin g the standard we adopted, supra , we affirm the trial court ’ s finding that British Columbia is an “adequate” forum. British Columbia law allow s the O tienos to pursue their wrongful

- death cause of action and, as they admit, to recover some substantive dama ges, al though we acknowledge that they may be nominal in value. There appears no danger that the

Otienos would be treated unfairly or be deprived of their remedy. See McCracken , 494 N.E.2d

at 1293.

The Otienos do not dispute any of the other findings o f the trial court

, so we dispense

with the balancing of public and private interests at stake that is customary in a forum non
conveniens determination. See Piper Aircraft , 454 U.S. at 241 & n.6 ( identifying factors ou tlined in Gilbert , 330 U.S. at 508

- 09 )

.14

In Gilbert , Justice Jackson wrote of forum non conveniens :

Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to whi ch plaintiff resorts, and experience has not shown a judicial tendency to renounce one ’ s own jurisdiction so strong as to r esult in many abuses.

330 U.S. at 508 (footnote omitted)

. Similarly, our Trial Rule 4.4(C) wisely e n trusts the forum

non conveniens decision to the trial court “under such reaso n able conditions as the court in its discretion may determine to be just.” We find no basis for questioning the trial judge ’ s exercise

of discretion here in granting the D e fendants ’ motion to dismiss. Rather, it is overwhelmingly

clear from his order that Judge Keele did exactly what Trial Rule 4.4(C) r e quired of him

.

Conclusion

The judgment of the trial court is affirmed.

Dickson, C.J., and Rucker, David, and Massa, JJ., concur.