J-A21033-18

2019 PA Super 112

FREEMAN MAURICE VAUGHAN, JR., 

ADMINISTRATOR OF THE ESTATE OF 

JANICE VAUGHAN, DECEASED 

Appellant

v.

OLYMPUS AMERICA, INC., OLYMPUS 

CORPORATION OF THE AMERICAS,

OLYMPUS MEDICAL SYSTEM CORP. 

AND CUSTOM ULTRASONICS, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3101 EDA 2017

Appeal from the Order Entered August 18, 2017

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

No(s): 2308 September Term 2016

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.: FILED APRIL 10, 2019

Decedent Janice Vaughan underwent medical procedures at Carolinas 

Medical Center in Charlotte, North Carolina, during which physicians used an 

Olympus TJF-Q180V duodenoscope (scope). The scope is designed for reuse 

on multiple patients and must be disinfected – or “reprocessed” – after each 

use. Allegedly, the scope used on Mrs. Vaughan was contaminated, and she 

developed a multi-drug-resistant infection and in May 2015, passed away. 

Her widower, Freeman Maurice Vaughan, Jr., as administrator of her 

estate, instituted this suit in Philadelphia. Olympus Medical System Corp. 

(OMSC) filed preliminary objections seeking dismissal for lack of personal 

jurisdiction, which the trial court sustained. Because OMSC had contacts with 

Pennsylvania that were sufficiently related to the causes of action on which 
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Vaughn is suing OMSC, it is subject to Pennsylvania’s specific jurisdiction. We 

therefore reverse the order sustaining the preliminary objection to personal 

jurisdiction over OMSC.

Other defendants – Olympus America, Inc. (OAI), Olympus Corporation 

of the Americas (OCA), and Custom Ultrasonics, Inc. (Custom) – sought 

dismissal based on the doctrine of forum non conveniens. See 42 Pa.C.S. § 

5322(e). In our view, the lower court abused its discretion when it found 

“weighty reasons” to disturb Vaughan’s choice of forum. See Bochetto v. 

Dimeling, Schreiber, & Park, 151 A.3d 1072 (Pa.Super. 2016). Accordingly, 

we also reverse the order granting the forum non conveniens dismissal.

I. Factual and procedural background

According to the Complaint, OMSC redesigned the scope several years 

before Decedent’s procedures but did not update the reprocessing procedures 

and instructions, known as the “reprocessing protocol.” See Complaint, ¶¶ 1, 

3, 22, 23.1 As a result, end users were allegedly unable to sanitize the 

redesigned scope effectively. Id., ¶ 3. Vaughan claims that OMSC failed to 

update the reprocessing protocol despite its allegedly receiving notice in 2013 

of infections in patients involving scopes in the same product line as the 

subject scope, as well as in another line of scopes. Id., ¶ 24. 

The Complaint names three defendants: OMSC, OAI, and OCA. OMSC 

allegedly designed and manufactured the subject scope. Id., ¶ 11. OMSC is a 

____________________________________________

1 See also OMSC’s Br. at 56 (“OMSC as the manufacturer is responsible for 

designing the product and creating or revising its reprocessing instructions.”). 
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foreign corporation organized under the laws of Japan, and has its principal 

place of business in Tokyo. Complaint, ¶ 11. As a foreign manufacturer 

marketing a medical device in the United States, it must not only register with 

the Food and Drug Administration (FDA), but also must designate an agent in 

the United States to meet its statutory reporting requirements. See 21 

U.S.C.A. § 360(i)(1)(A)(ii); 21 C.F.R. §§ 803.58, 807.40. 

OCA and OAI are New York corporations, and each maintains its principal 

place of business in Center Valley, Pennsylvania. OMSC’s Preliminary 

Objections, ¶ 6.2It is undisputed that for FDA purposes, OCA is OMSC’s agent. 

See OMSC’s Memorandum of Law in Support of Preliminary Objections, at 12; 

Exhibit I to OMSC’s Preliminary Objections, Affidavit of Laura Storms, ¶ 7. In 

addition, OCA and OAI are allegedly involved in the marketing, distribution,

and post-marketing safety surveillance of the scope. Complaint, ¶ 9, 10. 

Vaughan alleges that the FDA granted clearance for marketing the scope 

pursuant to a procedure known as “section 510(k)[3] premarket notification.” 

See Complaint, ¶ 17. Under this procedure, certain classes of medical devices 

may be marketed if “the FDA concludes on the basis of the [section] 510(k) 

notification that the device is ‘substantially equivalent’ to a pre-existing 

____________________________________________

2 See also OCA’s Answer to Complaint With New Matter, ¶ 10; OAI’s Answer 

to Complaint With New Matter, ¶ 9. 

3 “Section 510(k)” “refers to the original section of the [Medical Device 

Amendments of 1976 to the Federal Food, Drug, and Cosmetic Act] describing 

this review process.” Gross v. Stryker Corp., 858 F. Supp. 2d 466, 484 (W.D.

Pa. 2012).
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device . . . .” Medtronic, Inc. v. Lohr, 518 U.S. 470, 478, 479 (1996). 

Section 510(k) submissions must include, among other things, proposed 

labels, labeling, and advertisements sufficient to describe the device, its 

intended use, and the directions for its use. Buckman Co. v. Plaintiffs’ Legal 

Comm., 531 U.S. 341, 345 (2001) (citing 21 CFR § 807.87(e)). After the FDA 

granted section 510(k) clearance, OMSC allegedly “remained directly involved 

with the dissemination of information about the device such as warnings, 

instructions, and other safety information within the U.S.” Complaint, ¶ 17.

The Complaint also alleges certain of the regulatory duties of a medical 

device manufacturer such as OMSC. Id., ¶ 2 (citing 21 C.F.R. §§ 820.181, 

820.30(j)). FDA regulations require a device manufacturer to obtain approval 

of a device master record, defined as “a compilation of records containing the

procedures and specifications for a finished device.” 21 C.F.R. §§ 820.30, 

820.181. This includes information regarding device maintenance, as well as

servicing procedures and methods. 21 C.F.R. § 820.181(e). 

OMSC allegedly had a duty to ensure that an effective and validated 

reprocessing protocol is disseminated to medical facilities and professionals.

Complaint, ¶¶ 2, 26. Nonetheless, and despite its redesign of the scope, OMSC 

allegedly took no action to update the reprocessing protocol, and thus failed 

to provide end users of the redesigned scope an effective and validated 

protocol. Id., ¶¶ 23, 27. If OMSC wanted or needed to disseminate 

information about changes to the reprocessing protocol, it allegedly would do 

so through OCA. Id., ¶ 16. 
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Vaughan asserts four causes of action, all four against OMSC, OCA, and 

OAI. The causes of action center on the claim that the reprocessing protocol 

was inadequate. Vaughan claims negligence for (among other things) the 

alleged failure to provide an “effective and validated” reprocessing protocol. 

Id., ¶¶ 41(a), 51. He also asserts “fraud-intentional misrepresentation” for 

“misrepresent[ing] that the reprocessing protocol . . . was a safe and adequate 

means of cleaning and disinfecting” the scope. Id., ¶ 57. He claims “fraudnegligent misrepresentation” for “falsely represent[ing] that the [scope] would 

be disinfected and safe for subsequent use in a new patient after 

administration of the reprocessing protocol.” Id., ¶ 68. He also asserts loss of 

consortium. 

OCA and OAI answered the Complaint and joined Custom as an 

additional defendant.4 Custom is a Pennsylvania company headquartered in 

Ivyland, Pennsylvania. Using OMSC’s reprocessing protocol, Custom designed, 

manufactured, and tested an automated endoscope reprocessor (AER) to 

clean and disinfect the scope. Custom does not sell or service the AER, relying 

instead on third-party contractors.

OMSC filed preliminary objections in December 2016, asserting, inter 

alia, a lack of personal jurisdiction. It included as an exhibit the affidavit of 

Laura Storms, OCA’s Vice President of Regulatory and Clinical Affairs and 

Quality Assurance. Exhibit I to OMSC’s Preliminary Objections, Affidavit of 

____________________________________________

4 See Joinder Complaint, 01/10/2017; see also Pa.R.C.P. 2255.
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Laura Storms, ¶ 2. She is responsible at OCA for compliance with FDA 

regulations, including premarket applications and post market complaints. Id.

Her office is in Center Valley.5 Her affidavit confirmed that the subject scope 

was manufactured by OMSC and it constitutes a medical device subject to FDA 

regulations. Id., ¶ 4. She also admitted that because OMSC is a foreign 

manufacturer, “it designates OCA as its U.S. agent for all its products sold in 

the United States.” Id. That agency relationship extends to OMSC’s statutory 

reporting requirements with the FDA, including “premarket notifications 

related to approval of the device,” i.e., section 510(k) premarket notifications. 

Id., ¶ 6. 

The trial court sustained the preliminary objection regarding personal 

jurisdiction in February 2016 and granted dismissal as to OMSC. 

Subsequently, OCA, OAI, and Custom filed a joint motion to dismiss based on 

forum non conveniens. Following additional discovery and supplemental 

briefing, the trial court dismissed Vaughan’s claims without prejudice to reinstitute litigation in North Carolina. Vaughan timely appealed and filed a 

court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a 

responsive opinion.

Vaughan raises the following issues:

1. Did the court err in ruling that Pennsylvania does not have 

personal jurisdiction over OMSC when that entity regularly sent 

____________________________________________

5 Cf. OCA’s Answer to Complaint With New Matter, ¶ 15 (“OCA admits Ms. 

Storms is its Vice President of Quality Assurance, and that her office is in 

Center Valley, Pennsylvania.”). 
J-A21033-18

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employee liaisons to live in Pennsylvania and to work with its 

sister corporations, which are located in Pennsylvania, and 

when all regulatory, sales, marketing, and quality assurance 

functions necessary to make its medical device available in the 

U.S. were carried out in, or controlled from, Pennsylvania[?]

2. Did the court abuse its discretion in granting OAI, OCA and 

Custom’s motion to dismiss for forum non conveniens when all 

those entities are headquartered in Pennsylvania, all or nearly 

all of their facilities are located in Pennsylvania, all or nearly all 

of their employees are located in Pennsylvania, and all or 

nearly all of their conduct giving rise to this action took place 

in Pennsylvania?

Vaughan’s Br. at 4.

II. Discussion

A. Specific Jurisdiction Is Proper in Pennsylvania.

In his first issue, Vaughan contends the trial court erred in ruling that 

Pennsylvania may not exercise personal jurisdiction over OMSC. Id. at 10. He 

argues that specific jurisdiction is proper in Pennsylvania because “[t]he acts 

of the corporations which were affiliated with OMSC, and which were acting 

as its agent in Pennsylvania, engaged in significant conduct that was directly 

related to the [plaintiff’s] claims here.” Vaughan’s Br. at 29. We agree.

We reverse an order sustaining preliminary objections if there has been 

an error of law or an abuse of discretion. N.T. ex rel. K.R.T. v. F.F., 118 A.3d 

1130, 1134 (Pa.Super. 2015). Preliminary objections that will result in the 

dismissal of an action should be sustained only in cases that are “clear and 

free from doubt.” N.T., 118 A.3d at 1134 (quoting Gaboury v. Gaboury, 988 

A.2d 672, 675 (Pa.Super.2009)) (internal quotation marks and citations

omitted in N.T.). 
J-A21033-18

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When considering a preliminary objection to personal jurisdiction, the 

moving party bears the burden of initially supporting its objection. If the 

movant carries that burden, the burden then shifts to the party claiming 

personal jurisdiction is proper to prove that such is the case. N.T., 118 A.3d 

at 1134; Mendel v. Williams, 53 A.3d 810, 816 (Pa.Super. 2012).

There are two theories of personal jurisdiction: general, or all-purpose 

jurisdiction, and specific, or case-linked jurisdiction. Goodyear Dunlop Tires 

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); Mendel, 53 A.3d at 

817. Here, Vaughan claims personal jurisdiction over OMSC exists under both 

theories. Because we conclude that OMSC is properly subject in this case to 

Pennsylvania’s specific jurisdiction, we only address the parties’ arguments 

regarding specific jurisdiction. 

Whether a state may exercise in personam jurisdiction over a nonresident defendant is tested against both the state’s long-arm statute and the 

Due Process Clause of the Fourteenth Amendment. Kubik v. Letteri, 614 

A.2d 1110, 1112 (Pa. 1992). Pennsylvania’s long-arm statute permits courts 

to exercise personal jurisdiction over a nonresident defendant “to the fullest 

extent allowed under the Constitution of the United States and may be based 

on the most minimum contact with this Commonwealth allowed under the 

Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). Vaughan has 

asserted jurisdiction under section 5322(b), and the analysis thus condenses 

to whether jurisdiction is proper under the Fourteenth Amendment. See

Gaboury, 988 A.2d at 679 n.5.
J-A21033-18

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The extent to which jurisdiction is proscribed by the Due Process 

Clause is dependent upon the nature and quality of the 

defendant’s contacts with the forum state. Where a defendant has 

established no meaningful contacts, ties or relations with the 

forum, the Due Process Clause prohibits the exercise of personal 

jurisdiction. However, where a defendant has purposefully 

directed his activities at the residents of the forum, he is presumed 

to have fair warning that he may be called to suit there.

Mendel, 53 A.3d at 817 (internal quotation marks and citations omitted).

“Due process is satisfied when the defendant has (1) purposefully 

established minimum contacts with the forum state, (2) such that the 

maintenance of the suit does not offend traditional notions of fair play and 

substantial justice.” Schiavone v. Aveta, 41 A.3d 861, 869 (Pa.Super. 2012) 

(internal quotation marks omitted; citing Burger King Corp. V. Rudzewicz, 

471 U.S. 462, 474 (1985)). “This ‘purposeful availment’ requirement ensures 

that a defendant will not be hauled into a jurisdiction solely as a result of 

random, fortuitous, or attenuated contacts, or of the unilateral activity of 

another party or a third person.” Burger King, 471 U.S. at 475 (internal 

quotation marks and citations omitted).

The propriety of the exercise of specific jurisdiction “depends on an 

affiliation between the forum and the underlying controversy, principally, [an] 

activity or an occurrence that takes place in the forum State and is therefore 

subject to the State’s regulation.” Goodyear, 564 U.S. at 919. See also 

Hammons v. Ethicon, Inc., 190 A.3d 1248, 1263 (Pa.Super. 2018) 

(concluding jurisdiction established over non-resident medical device 

manufacturer based on documented collaboration with resident companies 
J-A21033-18

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and individuals to design, test, and manufacture pelvic mesh in Pennsylvania).

In contrast to general jurisdiction, specific jurisdiction is narrowly “confined to 

adjudication of issues deriving from, or connected with, the very controversy 

that establishes jurisdiction.” Goodyear, 564 U.S. at 919. (quotation marks 

and citation omitted). “When there is no such connection, specific jurisdiction 

is lacking regardless of the extent of a defendant’s unconnected activities in 

the State.” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773,

1781 (2017).

The Supreme Court’s decision in Bristol Myers Squibb gives useful

guidance here. In that case, a group of plaintiffs, including many who did not 

reside in California, sued Bristol-Myers in California state court alleging 

injuries from a drug. Id. at 1780. The California Supreme Court concluded 

that jurisdiction existed in that state under a “sliding scale” theory of specific 

jurisdiction. Under that theory, “‘the more wide ranging the defendant’s forum 

contacts, the more readily is shown a connection between the forum contacts 

and the claim.’” Id. at 1778 (quoting Bristol-Myers Squibb Co. v. Superior 

Court, 806, 377 P.3d 874, 889 (Cal. 2016)). 

The United States Supreme Court rejected that theory as contrary to 

“settled principles.” Id. at 1781. Relevant here, the Court concluded that 

California lacked specific jurisdiction because there was no adequate 

connection between California and the non-residents’ claims. Id. at 1781. The 

Court pointed out that the nonresidents were not prescribed and did not 

purchase or ingest the drug in California, and did not sustain injury from the 
J-A21033-18

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drug in California. Id. The Court also rejected the nonresidents’ contention

that “the bare fact” that Bristol–Myers had contracted with a California 

company, along with many other companies nationally, to distribute the drug

was sufficient to establish personal jurisdiction in California over Bristol Myers. 

The Court pointed out there was no evidence that the nonresidents had taken 

pills distributed through the California company. Id. at 1783. Further, the 

Court pointed out that Bristol-Myers did not develop a marketing strategy for 

the drug in California nor did it “work on the regulatory approval of the product 

in California.” Id. at 1778.

Moreover, the Court in Bristol Myers Squibb identified additional 

circumstances, not present in that case, that it suggested would provide 

specific jurisdiction. The Court emphasized, “it is not alleged that [BristolMyers] engaged in relevant acts together with [the California company].” Id.

The Court added, “Nor is it alleged that [Bristol-Myers] is derivatively liable 

for [the California company’s] conduct in California.” Id. 

This case involves the additional circumstances to which the Court 

adverted in Bristol-Myers Squibb. Here, OMSC engaged in relevant acts 

together with OCA, an in-state company, and it is liable for OCA’s FDA-related 

conduct in Pennsylvania. OCA’s Vice President, Laura Storms, admitted in her 

affidavit that OCA is OMSC’s agent for purposes of OMSC’s statutory reporting 

requirements with the FDA. See Affidavit of Laura Storms, ¶ 4. She also 

conceded that the agency relationship extends to OMSC’s section 510(k) 

premarket notifications. Id., ¶ 6. Section 510(k) premarket notifications entail
J-A21033-18

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submission of proposed directions for use. Buckman, 531 U.S. at 345. OMSC 

itself fashions the reprocessing protocol, through “instructions,”6 and all of 

Vaughan’s claims relate to adequacy of that protocol. OCA’s activities in 

concert with OMSC, and as OMSC’s agent, are sufficiently linked to Vaughan’s 

substantive claims to support specific jurisdiction over OMSC in Pennsylvania. 

Bristol-Myers Squibb, 137 S.Ct. at 1783.

Daimler AG v. Bauman, 571 U.S. 117 (2014), is distinguishable. 

There, residents of Argentina sued Daimler – a company organized under 

German law that manufactures vehicles primarily in Germany and has its 

headquarters in Germany – in federal court in California. The plaintiffs alleged 

that Daimler’s Argentinian subsidiary had been involved in atrocities in 

Argentina during that country’s “Dirty War.” Id. at 121. The plaintiffs 

maintained that the California federal court could exert general personal 

jurisdiction over Daimler based on the California contacts of Daimler’s U.S. 

subsidiary, Mercedes-Benz USA LLC (MBUSA). Id.

The Ninth Circuit found jurisdiction proper, applying its so-called 

“agency” test for personal jurisdiction. The court explained that under that 

test, an in-state subsidiary acts as an agent for an out-of-state parent if the 

subsidiary performs services sufficiently important to the parent that, if the 

subsidiary ceased to exist, the foreign parent “would undertake to perform the 

services itself if it had no representative at all to perform them.” Bauman v. 

____________________________________________

6 See OMSC’s Br. at 56 (“But OMSC as the manufacturer is responsible for 

designing the product and creating or revising its reprocessing instructions.”). 
J-A21033-18

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DaimlerChrysler Corp., 644 F.3d 909, 921 (9th Cir. 2011). The Ninth Circuit 

thus attributed MBUSA’s California contacts to Daimler and found it subject to 

general jurisdiction. 571 U.S. at 134. 

The Supreme Court reversed. The Court declined to address whether an 

“agency theory” is applicable to a general jurisdiction analysis because the 

Ninth Circuit’s reasoning could not be sustained in any event. Id. at 135. The 

Court explained that the Ninth Circuit’s “agency” test swept too broadly, since 

anything a corporation has another entity do is “presumably something” it 

would do by other means if the other entity did not perform the service. Id.

at 136. The Court ultimately concluded that, even assuming MBUSA’s contacts 

were imputable to Daimler, and that MBUSA was “at home” in California, it 

would still reverse the finding of general jurisdiction because the limited 

contacts with California were evaluated under an improper standard. Id. at 

136, 139.

Daimler does not impede our decision here for several reasons. To 

begin, it is a general jurisdiction case and here we consider specific 

jurisdiction. Perhaps more to the point, the Court did not purport to declare 

agency permanently out of bounds in the personal jurisdiction analysis. To the 

contrary, it refused to “pass judgment on invocation of an agency theory in 

the context of general jurisdiction,” and then carefully cabined its discussion 

to the flaws it found in the Ninth Circuit’s “agency” test. Id. at 135. Indeed, 

the Court in Daimler went so far as to state that agency relationships may be 

relevant to the existence of specific jurisdiction. Id. at 135 n.13. What is more, 
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three years after Daimler, the Court suggested in Bristol-Myers Squibb that 

allegations that a defendant is “derivatively liable” for another’s in-forum acts 

could support a finding of specific jurisdiction. 

Here, we have such allegations, and they are supported by evidence, 

including Storms’ concessions that OCA acted as OMSC’s agent for FDA 

purposes. Therefore, we conclude that the activity regarding the scope that 

occurred in Pennsylvania was sufficient to establish the minimum contacts 

needed, under a due process analysis, to establish specific jurisdiction in 

Pennsylvania. See Schiavone, 41 A.3d at 869. As discussed, OCA’s actions 

as OMSC’s regulatory agent with the FDA were sufficiently related to 

Vaughan’s substantive claims to support the assertion of specific jurisdiction 

over OMSC in Pennsylvania. See Bristol-Myers Squibb, 137 S.Ct. at 1783. 

Likewise, Pennsylvania’s assertion of specific jurisdiction over OMSC is 

fair and reasonable and does “not offend tradition[al] notions of fair play and 

substantial justice” as required under the second prong of a due process 

analysis. Id. Having availed itself of doing business in this Commonwealth, 

specifically regarding the scope, the attendant burden of being subject to 

specific jurisdiction in Pennsylvania regarding the same could hardly be 

deemed unfair, unreasonable, or even unexpected. Accordingly, having 

concluded that OMSC is subject to specific personal jurisdiction in 

Pennsylvania, we reverse the trial court’s February 2017 Order. 
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B. The Trial Court Abused Its Discretion in Granting a 

Forum Non Conveniens Dismissal. 

In his second issue, Vaughan contends that Philadelphia, Pennsylvania

is the most appropriate forum for this case. Vaughan’s Br. at 30. Vaughan 

notes that, under Pennsylvania law, a plaintiff is entitled to choose the forum 

in which to pursue his claims and that this choice should not be disturbed 

except for “weighty reasons.” Id. at 35 (citing Wright v. Aventis Pasteur, 

Inc., 905 A.2d 544 (Pa.Super. 2006)). Asserting “critical factual omissions 

and errors” by the trial court and directing our attention to what Vaughan 

suggests is extensive and relevant corporate actions in the greater 

Philadelphia area, Vaughan urges that we reverse the trial court’s decision to 

grant the joint motion to dismiss for forum non conveniens. Id. at 30; at 38-

50 (citing evidence of corporate conduct); 60 (urging reversal). Once again, 

we agree. 

Motions to transfer venue out of state pursuant to the doctrine of forum 

non conveniens are governed by 42 Pa.C.S.A. § 5322, which provides in 

relevant part:

Inconvenient forum.--When a tribunal finds that in the interest 

of substantial justice the matter should be heard in another forum, 

the tribunal may stay or dismiss the matter in whole or in part on 

any conditions that may be just.

42 Pa.C.S.A. § 5322(e); Pisieczko v. Children's Hosp. of Phila., 73 A.3d 

1260, 1262 n.3 (Pa.Super.2013). We review “a trial court's ruling on a Petition 

to Dismiss on the grounds of forum non conveniens ” pursuant to § 5322(e) 

for an abuse of discretion. Id. at 1262.
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Before a court may grant dismissal under subsection 5322(e), 

Pennsylvania jurisprudence requires the consideration of two factors: “(1) a 

plaintiff’s choice of the place of the suit will not be disturbed except for weighty 

reasons, and (2) no action will be dismissed unless an alternative forum is 

available to the plaintiff.” Wright, 905 A.2d at 547-48 (quoting Jessop v. 

ACF Indus, LLC, 859 A.2d 801, 803 (Pa.Super. 2004) (emphasis omitted).7 

In order to evaluate whether “weighty reasons” exist to disturb a 

plaintiff’s choice of forum, the trial court must examine private and public 

interest factors relevant to the case. The private factors include:

[T]he relative ease of access to sources of proof; availability of 

compulsory process for attendance of unwilling, and the cost of 

obtaining attendance of willing, witnesses; possibility of view of 

premises, if view would be appropriate to the action; and all other 

practical problems that make trial of a case easy, expeditious and 

inexpensive. There may also be questions as to the enforceability 

of a judgment if one is obtained. The court will weigh relative 

advantages and obstacles to fair trial.

. . .

With respect to public factors, the Supreme Court advised:

Administrative difficulties follow for courts when litigation is piled 

up in congested centers instead of being handled at its origin. Jury 

duty is a burden that ought not to be imposed upon the people of 

a community which has no relation to the litigation.... There is an 

____________________________________________

7 Vaughan does not challenge the trial court’s finding that an alternative forum 

is available to him. Thus, we need not address this consideration in detail. The 

trial court viewed the availability of an alternative forum as a threshold 

question. See Trial Ct. Op. at 9. Noting that all defendants consented to 

jurisdiction in North Carolina, the court concluded that an alternative forum 

was available. Id. (citing, et al., Pisieczko v. Children’s Hosp. of 

Philadelphia, 73 A.3d 1260 (Pa.Super. 2013)). We discern no abuse of the 

court’s discretion in this regard. Bochetto, 151 A.3d at 1079.
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appropriateness, too, in having the trial ... in a forum that is at 

home with the state law that must govern the case, rather than 

having a court in some other forum untangle problems in conflict 

of laws, and in law foreign to itself.

Bochetto, 151 A.3d at 1079-80 (internal formatting modified; quoting Gulf 

Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)). 

Considering these private and public interest factors, the trial court here 

concluded that North Carolina provided the more appropriate forum and that 

sufficiently weighty reasons militated against Vaughan’s choice to pursue this 

case in Philadelphia. Trial Ct. Op. at 10-12. We disagree and conclude that the 

trial court abused its discretion by finding that “weighty” reasons required that 

Vaughan’s choice of forum be disturbed. 

The trial court determined that the majority of relevant evidence in this 

case is located in North Carolina or Japan and not, as Vaughan asserts, in 

Pennsylvania. Id. at 10-11. However, we agree with Vaughan that a plaintiff 

may establish a close connection with a forum based upon “relevant corporate 

actions” that take place there. See Vaughan’s Br. at 54 (citing Wright, 905 

A.2d at 549). There is little doubt that OCA and OAI conduct extensive 

operations in Pennsylvania, in relative proximity to Philadelphia. See, e.g., 

id. at 38-39 (listing numerous corporate departments), 42-50 (directing our 

attention to evidence of OCA and OAI conduct in several areas including

regulatory compliance, marketing and distribution and issue response). 

Further, Vaughan has identified 64 OCA and OAI employees, as well as 

numerous Custom employees, all located in the greater Philadelphia area. 
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Vaughan’s Supplemental Briefing in Opposition to Joint Motion to Dismiss, 

Exhibits II & OO.8Indeed, evidence critical to support Vaughan’s claims will

be found in Pennsylvania, where, as discussed, OCA acts as OMSC’s agent for 

FDA purposes. 

Moreover, the trial court’s concern that Vaughan’s fact witnesses for 

damages are located in North Carolina is not persuasive. See Trial Ct. Op. at 

10. In our view, any difficulty a plaintiff faces in securing evidence necessary 

to prove a cause of action is not a valid reason to override the plaintiff’s forum 

preference. Thus, we find meritorious Vaughan’s criticism of the court’s 

suggestion that “much of the information that [Vaughan] alleges is based in 

Pennsylvania actually comes from non-parties.” Vaughan’s Br. at 31 (quoting 

Trial Ct. Op. at 10). To the contrary, significant evidence may be found in 

Pennsylvania from parties to this litigation.

Regarding the public interest factors, the court suggested Pennsylvania 

had comparatively little interest in this case, despite the presence of 

Pennsylvania defendants, because the injury occurred in North Carolina. Trial 

Ct. Op. at 11-12. Thus, the court determined, a trial in Philadelphia would 

unduly burden our courts and jurors. Id. 

____________________________________________

8 We note Vaughan’s reference to Custom employees mindful that he asserts 

no claims against Custom. Nevertheless, testimony from these employees 

may well prove relevant in this case. In several closely related cases, the 

plaintiffs have targeted Custom’s actions directly. In those cases, such 

evidence will be essential. 
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We disagree. As Vaughan noted, he provided “evidence of public interest 

factors similar to those described by [this Court] in Wright[.]” Id. In Wright, 

after noting that the defendant pharmaceutical companies marketed vaccines 

and immune globulin products in Pennsylvania, this Court concluded that the 

people of Pennsylvania had an interest in the outcome “particularly since 

[plaintiffs] aver that several of these companies make critical . . . marketing 

decisions in the Commonwealth.” Wright, 905 A.2d at 551 (emphasis 

added). Such is the case here. The Pennsylvania-based Olympus companies

maintain robust sales and marketing departments in Pennsylvania.

Further, as Vaughan suggests, there is little cause for concern if a 

Philadelphia judge is called upon to apply the law of another state. Id. at 55 

(citing Wright, 905 A.2d at 551). In Wright, we expressed confidence in the 

ability of our trial judges to accurately apply foreign law:

[W]hile it is unresolved whether the law of Pennsylvania or the 

law of Texas will ultimately apply to this case, a factor not even 

considered by the trial judge, there is no basis upon which to 

conclude that the law determined to be applicable is beyond the 

ken of a Philadelphia trial judge.

Wright, 905 A.2d at 551. We have no doubt that a jurist in this 

Commonwealth is more than capable of analyzing and applying the 

appropriate law – domestic or foreign. 

In sum, faced with private and public factors that clearly support

Vaughan’s choice to proceed in Philadelphia, we conclude there were not 

weighty reasons to disturb Vaughan’s choice of forum. Accordingly, we 
J-A21033-18

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conclude the trial court abused its discretion and we reverse the trial court’s 

order granting dismissal on the basis of forum non conveniens. 

Orders reversed; case remanded; jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/19