In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-2280, 09-3020

YAO -WEN CHANG, et al.,

Plaintiffs-Appellants,

v.

BAXTER HEALTHCARE CORPORATION, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

MDL No. 986 JFG—John F. Grady, Judge.

SUBMITTED FEBRUARY 12, 2010—DECIDED MARCH 26, 2010

Before POSNER, EVANS, and TINDER, Circuit Judges.

POSNER, Circuit Judge. This is a parallel case to Abad v.

Bayer Corp., 563 F.3d 663 (7th Cir. 2009), decided by this

panel last year. The case was dismissed by the district

court, and the plaintiffs have appealed. Ordinarily when

all parties to an appeal are represented by counsel, the

court directs oral argument unless the parties waive

argument and we accept the waiver. But when, as in

this case, an appeal is closely related to an earlier appeal,
2 Nos. 09-2280, 09-3020

or is successive to it, we are more likely to deny oral

argument on the ground that “the facts and legal arguments are adequately presented in the briefs and record,

and the decisional process would not be significantly aided

by oral argument.” Fed. R. App. P. 34(a)(2)(C). We have

decided to do that in this case.

Abad was a diversity (technically an “alienage,” 28 U.S.C.

§ 1332(d)(2)(B)) class action on behalf of several hundred

Argentines, consolidating a number of suits that had

been filed in various U.S. states and transferred by

the multidistrict panel to the federal district court in

Chicago, pursuant to 28 U.S.C. § 1407, for inclusion in

In re Factor VIII or IX Concentrate Blood Products Litigation. That is the name that has been given to the pretrial

proceedings in a large number of products-liability suits by

hemophiliacs who had been infected with HIV (the virus

that causes AIDS) that had gotten into the clotting factor

that persons afflicted with hemophilia inject into their

bloodstreams in order to control bleeding. The plaintiffs

charged that the defendants—the manufacturers of the

clotting factors—had failed to eliminate HIV from the

blood of donors from which the clotting factors had been

made, as they could and should have done by applying

heat in the manufacturing process.

The class members in Abad had acquired and injected

and become infected by the contaminated clotting

factors in Argentina, and the district court granted the

defendant’s motion to dismiss the action on the ground of

forum non conveniens—the doctrine that allows a court to

dismiss a suit if there are strong reasons for believing that
Nos. 09-2280, 09-3020 3

it should be litigated in the courts of another, normally a

foreign, jurisdiction, in Abad the courts of Argentina.

We affirmed.

The district court had deferred ruling on the

defendant’s motion until completion of the plaintiffs’

pretrial discovery. The defendant’s discovery would

have to be conducted in Argentina because that was

where the members of the class lived. So while depositions and other documents obtained in the plaintiffs’

discovery would have to be translated into Spanish if the

suit was litigated in Argentina, documents obtained in

the defendant’s discovery in Argentina would have to be

translated into English if the case was tried in Chicago.

The plaintiffs argued that under Argentine choice of law

rules, the substantive law that would be applied if the case

were litigated in an Argentine court would be American

rather than Argentine law. If true, this would, we said,

have been a powerful argument for leaving the case in

Chicago. But as near as we were able to determine, it

was false. Argentine law would apply wherever the

case was tried; and especially because of the dearth of

relevant Argentine precedents or other sources of law,

the Argentine court would probably do a better (more

authentic, legitimate, authoritative) job of applying

(if necessary creating) Argentine law than an American

court. And we noted that the presumption in favor of

a plaintiff’s choice of the court in which to litigate (a

presumption based in part on the costs and delay

involved in restarting a case in another court) is

weakened when the plaintiffs are foreign and could
4 Nos. 09-2280, 09-3020

litigate the case in their home court. Thus on balance

Argentina was the more convenient, the more suitable,

forum for the litigation.

The present case, filed originally in California by residents of Taiwan but transferred by the multidistrict panel

to the district court in Chicago with the other clottingfactor suits for pretrial proceedings, is similar to Abad,

although it adds a breach of contract claim to the

tort claims. (Like Abad, it is actually a series of cases

that have been consolidated for purposes of pretrial proceedings.) The main tort claim is that the defendants

acquired blood from high-risk donors, processed it improperly in California where they manufactured clotting

factors, and after discovering that the factors were contaminated by HIV nevertheless continued to distribute

the product in foreign countries while withdrawing

them from distribution in the United States. Thus, like

the plaintiffs and class members in the Abad case, the

plaintiffs in this case, or the decedents whom they represent, reside, and obtained and injected the clotting factor,

in a foreign country. The plaintiffs also charge that the

defendants fraudulently induced them to enter into a

settlement agreement that released the defendants from

liability in exchange for paying $60,000 to each plaintiff.

The breach of contract claim alleges violation of a term

of the settlement.

The district judge dismissed some of the plaintiffs’ claims

as untimely and the others on the ground of forum non

conveniens. Although a dismissal on the latter ground is

without prejudice, it is appealable, illustrating that the
Nos. 09-2280, 09-3020 5

“rule” that dismissals without prejudice are nonfinal and

therefore nonappealable under 28 U.S.C. § 1291 is a Swiss

cheese. See Schering-Plough Healthcare Products, Inc. v.

Schwarz Pharma, Inc., 586 F.3d 500, 506 (7th Cir. 2009);

Taylor-Holmes v. Office of Cook County Public Guardian, 503

F.3d 607, 609-10 (7th Cir. 2007). In Mañez v. Bridgestone

Firestone North American Tire, LLC, 533 F.3d 578, 584 (7th

Cir. 2008), we compared dismissal on grounds of forum

non conveniens to “a dismissal for lack of personal or

federal subject-matter jurisdiction, which, while foreclosing future litigation of the matter in the court

issuing the order, does not preclude a plaintiff from

refiling and litigating in a proper forum.” And such

dismissals, though without prejudice, are of course

appealable.

The critical issue so far as the dismissals on the merits

are concerned is choice of law. When a diversity case is

transferred by the multidistrict litigation panel, the

law applied is that of the jurisdiction from which the

case was transferred, in this case California. In re Air

Disaster at Ramstein Air Base, Germany, on 8/29/90, 81 F.3d

570, 576 (5th Cir. 1996); Johnson v. Continental Airlines Corp.,

964 F.2d 1059, 1063 n. 5 (10th Cir. 1992); see also Ferens

v. John Deere Co., 494 U.S. 516, 521-31 (1990); Van

Dusen v. Barrack, 376 U.S. 612, 633-39 (1964); International Marketing, Ltd. v. Archer-Daniels-Midland Co., 192

F.3d 724, 729 (7th Cir. 1999); Larry Kramer, “Choice of Law

in Complex Litigation,” 71 N.Y.U. L. Rev. 547, 552 (1996).

The plaintiffs’ claims that the district judge dismissed on

the merits he dismissed as untimely under California law.
6 Nos. 09-2280, 09-3020

California statutes of limitations don’t begin to run

until the plaintiff discovers, or should in the exercise of

reasonable diligence have discovered, that he has a

claim against the defendant. Norgart v. Upjohn Co., 981

P.2d 79, 88-89 and n. 3 (Cal. 1999); Jolly v. Eli Lilly & Co., 751

P.2d 923, 927-28 (Cal. 1988); K.J. v. Arcadia Unified School

District, 92 Cal. Rptr. 3d 1, 10 (Cal. App. 2009). But the

discovery rule would not save the plaintiffs’ tort claims

from dismissal for untimeliness. True, the plaintiffs argue

that they didn’t have enough information on which to base

a suit until a New York Times article about the contamination of clotting factors with HIV was published on May 22,

2003, and therefore that their suit, filed in 2004, was timely,

since the California statute of limitations for personalinjury claims is two years. Cal. Civ. P. Code § 335.1; Fox v.

Ethicon Endo-Surgery, Inc., 110 P.3d 914, 921 n. 3 (Cal. 2005).

But as the district court found, the plaintiffs had had a reasonable basis to suspect that they had a cause of action

more than five years before the article appeared, when

their counsel had begun negotiations with two of the

defendants to settle negligence claims arising from the

contamination of the defendants’ clotting factors with

HIV. These negotiations culminated in the settlement

in 1998 on which the plaintiffs’ breach of contract claim

is based.

 The plaintiffs argue that the limitations period should

have been tolled by defendants’ “fraudulent concealment”

because when entering into the settlement agreement

they said they had done nothing wrong and that they

were offering financial aid purely as a humanitarian

gesture. The plaintiffs are mistaken. Denial of liability
Nos. 09-2280, 09-3020 7

when negotiating a settlement agreement is the norm; it

is not evidence of fraudulent concealment of anything.

The district court was also correct in ruling in the

alternative that a California court would apply (“borrow”

is the technical legal term) the Taiwanese 10-year statute of

repose, because the plaintiffs’ tort claims arose under

Taiwanese law. The hemophiliacs whom the plaintiffs

represent were infected in the 1980s, more than

a decade before these suits were brought.

A statute of repose, which is designed specifically

for products-liability suits, cuts off liability after a fixed

number of years, whether or not the plaintiff should

have discovered within that period that he had a claim.

A statute of repose thus overrides the discovery rule.

It does this because of the long latency of many product

defects, which can under a discovery rule impose vast

and unpredictable products liability on manufacturers.

See Eaton v. Jarvis Products Corp., 965 F.2d 922, 929-31 (10th

Cir. 1992); Pullum v. Cincinnati, Inc., 476 So. 2d 657, 659-

60 (Fla. 1985); Davis v. Whiting Corp., 674 P.2d 1195-

96 (Ore. App. 1984).

If the plaintiffs’ tort claims arose in Taiwan, California

law makes the Taiwanese statute of repose applicable to

those claims. The reason is California’s “borrowing”

statute, which—sensibly designed to discourage forum

shopping—provides that “when a cause of action has

arisen in another State, or in a foreign country, and by

the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an

action thereon shall not be maintained against him in
8 Nos. 09-2280, 09-3020

this State, except in favor of one who has been a citizen

of this State, and who has held the cause of action from

the time it accrued.” Cal. Civ. P. Code § 361; see McCann

v. Foster Wheeler LLC, 2010 WL 547274, at *8-10 (Cal. Feb. 18,

2010); cf. Flowers v. Carville, 310 F.3d 1118, 1123 (9th Cir.

2002) (Nevada law); Employers Ins. of Wausau v. Ehlco

Liquidating Trust, 723 N.E.2d 687, 694 (Ill. App. 1999). The

plaintiffs argue that their claims arose in California, not

Taiwan, because it was in California that the defendants

failed to process their clotting factors in a way that would

prevent contamination by HIV. But with immaterial

exceptions (such as trespass, where purely nominal

damages can be awarded even if there is no tangible harm,

because “a continuing trespass may ripen into a prescriptive right and deprive a property owner of title to his or her

land,” Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 293 (N.Y.

1993); see also W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 13, p. 75 (5th ed. 1984); Restatement

(Second) of Torts § 163 and comment d (1965)), there is no

tort without an injury. That is the rule in California, e.g.,

Buttram v. Owens-Corning Fiberglas Corp., 941 P.2d 71, 77

n. 4 (Cal. 1997); United States Liability Ins. Co. v. HaidingerHayes, Inc., 463 P.2d 770, 776, (Cal. 1970); In re Marriage

of Klug, 31 Cal. Rptr. 3d 327, 333 (Cal. App. 2005), as

elsewhere. E.g., Kamelgard v. Macura, 585 F.3d 334, 340-

41 (7th Cir. 2009) (Illinois law); Abad v. Bayer, supra, 563

F.3d at 669; Parris v. State Farm Mutual Automobile Ins. Co.,

494 S.E.2d 244, 246-47 (Ga. App. 1997); Keeton et al.,

supra, § 30, pp. 164-65. The tort of which the plaintiffs

complain thus occurred in Taiwan. See McCann v. Foster

Wheeler LLC, supra, at *10 and n. 5; see also Rajala v. Don-
Nos. 09-2280, 09-3020 9

nelly Meiners Jordan Kline, P.C., 193 F.3d 925, 928 (8th Cir.

1999) (Missouri law).

The case on which the plaintiffs principally rely, McKee

v. Dodd, 152 Cal. 637 (1908), was a breach of contract case

rather than a tort case. The breach had been committed

in New York, the place where payment was due, and

the suit was held to have arisen there. A claim of breach

of contract is complete when the breach is committed,

and indeed one can obtain a judgment in a breach of

contract action without proving any loss at all. E.g., Troyk

v. Farmers Group, Inc., 90 Cal. Rptr. 3d 589, 628 n. 36 (Cal.

App. 2009); Movitz v. First National Bank of Chicago, 148

F.3d 760, 765 (7th Cir. 1998); E. Allan Farnsworth, Contracts

§ 12.8, p. 757 (4th ed. 2004). Anyway the plaintiff was

in New York when the breach occurred, so the injury

also occurred there, just as it occurred in Taiwan in

the present case.

The plaintiffs concede that the suit “accrued” in Taiwan

but deny that it “arose” there. They misunderstand those terms. A claim “accrues” when the statute of

limitations begins to run; a claim that could not have

been discovered by the date on which it arose will not (in

a jurisdiction with a discovery rule) accrue then. E.g.,

Norgart v. Upjohn Co., supra, 981 P.2d at 88; United States

Liability Ins. Co. v. Haidinger-Hayes, Inc., supra, 463 P.2d at

775-77; Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th

Cir. 1990). The terms “arose” and “accrued” often are

conflated, because, other than in cases in which the discovery rule is invoked, usually the date on which the cause of

action “accrues” is also the date on which it “arises.” In re
10 Nos. 09-2280, 09-3020

Marriage of Klug, supra, 31 Cal. Rptr. 3d at 334. The plaintiffs’ claims arose in Taiwan, and that’s all that matters.

California courts would apply the Taiwanese statute

of repose in this case even if there were no borrowing

statute. Applying the “balancing of interests approach”

that California courts use to resolve conflict of laws issues,

a California court would reason that if Taiwan will not

provide a remedy to its own citizens, there is no reason

for California to do so. See McCann v. Foster Wheeler LLC,

supra, at *11, *13, *15-16; cf. Nelson v. Sandoz Pharmaceuticals

Corp., 288 F.3d 954, 965 (7th Cir. 2002); Macurdy v. Sikov &

Love, P.A., 894 F.2d 818, 821 (6th Cir. 1990). What interest

has California in treating Taiwanese plaintiffs more

generously than Taiwan treats them?

We turn to the claims that the district court dismissed

not as untimely but on the basis, rather, of forum non

conveniens. One set of claims arises from the settlement

agreement that provided the plaintiffs with $60,000

apiece as compensation for the injuries caused by the

contaminated clotting factors. The agreement contained

what the parties call a “scale-up” clause but would more

commonly be referred to as a “most favored nation”

clause. The clause required the defendants to increase

the compensation in the settlement agreement to whatever level the defendants agreed to in later settlements

with other clotting-factor claimants. The contract was

negotiated and signed in Taiwan, and while the plaintiffs argue that the scale-up clause is clear on its face

and applicable to their claims, the contract actually is

ambiguous. For it is silent on whether the reference to
Nos. 09-2280, 09-3020 11

other claimants who by receiving higher compensation

increase the plaintiffs’ entitlement is just to other

Taiwanese claimants, as the defendants argue, or to other

claimants anywhere in the world, as the plaintiffs argue—rather implausibly, given the enormous global

variance in damages awards. Evidence beyond the language of the settlement agreement will be necessary to

disambiguate the clause, and it seems that most of

the persons who are in a position to give such

evidence live in Taiwan—the plaintiffs’ Taiwanese

counsel who negotiated the settlement, a Taiwanese

patient representative, members of the Taiwanese department of health, defendant’s Taiwanese outside

counsel, and an employee of defendants in Taiwan—

while only two live in the United States.

Taiwanese law makes it difficult to gather evidence

for use in a trial in a foreign country because Taiwan

is not a party to the Convention on the Taking of

Evidence Abroad in Civil or Commercial Matters,

http://hcch.net/index_en.php?act=conventions.text&cid=82

(visited Mar. 17, 2010); see 10B Federal Procedure § 26:906

(Lawyers ed. 2010). The alternative method of obtaining

evidence in a foreign country—sending a letter rogatory

to the foreign court, United States Department of State,

“Taiwan Judicial Assistance,” http://travel.state.gov/law/

info/judicial/judicial_669.html (visited Mar. 13, 2010)—

seems not to be a very satisfactory means of obtaining

evidence from Taiwan. See Kenneth C. Miller & Nancy

Pionk, “The Practical Aspects of Litigating against Foreign

Corporations,” 54 J. Air L. & Commerce 123, 146-49 (1988);
12 Nos. 09-2280, 09-3020

Hayes Bicycle Group, Inc. v. Muchachos Int’l Co., 2008 WL

4830570, at *2-3 (E.D. Wis. Oct. 31, 2008).

The only circumstance that would favor holding the

trial in California rather than in Taiwan would be the

greater convenience for the defendants, since they are

American companies. But as they don’t want the case

to be tried in California, or indeed anywhere else in

the United States, really there is nothing in favor of the

American forum. And as we pointed out in Abad,

“when application of the doctrine [of forum non

conveniens] would send the plaintiffs to their home court,

the presumption in favor of giving plaintiffs their choice

of court is little more than a tie breaker.” 563 F.3d at

667. There is no tie here.

The remaining claim that the district court dismissed

on grounds of forum non conveniens is the productsliability claim of Chen-Chen Huang that may or may

not be time-barred. It is an unusual claim because

Huang is not a hemophiliac or a hemophiliac’s representative. Rather, she claims to have been infected by

sexual relations with her boyfriend who was a

hemophiliac (now dead) and is believed to have become

infected with HIV from clotting factors manufactured

by one of the defendants. The critical issue at trial is

likely to be the likelihood that sex with her boyfriend

was responsible for Huang’s contracting HIV. The pertinent evidence is in Taiwan and for the reason noted

earlier would be difficult to obtain for use in a trial in

the United States.

A complication is that whether Huang’s claim would be

time-barred if litigated in a Taiwanese court is uncertain.
Nos. 09-2280, 09-3020 13

The defendants say they “candidly told the district

court that they do not know whether testimony in Taiwan

from, for example, medical providers might impeach

Ms. Huang’s assertion that she did not know of her HIV

infection until 2002, when such testimony could give

rise to a limitations defense.” Huang responds that this

wishy-washy statement fails to satisfy the defendants’

burden of proving that Taiwan is an “adequate” alternative

forum, and if it isn’t then dismissal on grounds of forum

non conveniens was improper.

The Supreme Court has said that “if the remedy provided by the alternative forum is so clearly inadequate or

unsatisfactory that it is no remedy at all,” such dismissal

is indeed improper, Piper Aircraft Co. v. Reyno, 454 U.S.

235, 254 (1981), as in such cases as Nemariam v. Federal

Democratic Republic of Ethiopia, 315 F.3d 390, 394-95 (D.C.

Cir. 2003), and El-Fadl v. Central Bank of Jordan, 75 F.3d

668, 677-79 (D.C. Cir. 1996). The alternative forum must

provide the plaintiff with “a fair hearing to obtain some

remedy for the alleged wrong.” Stroitelstvo Bulgaria Ltd. v.

Bulgarian-American Enterprise Fund, 589 F.3d 417, 421 (7th

Cir. 2009). But the relief need not be as comprehensive

or as favorable as a plaintiff might obtain in an American

court. Id.; see also, e.g., Piper Aircraft Co. v. Reyno, supra, 454

U.S. at 249; Capital Currency Exchange, N.V. v. National

Westminster Bank PLC, 155 F.3d 603, 610-11 (2d Cir. 1998).

It would be odd to subject the defendant to an inconvenient forum merely to increase the chances that the

plaintiff will prevail on the merits. As the Supreme Court

explained in the Piper Aircraft case, “jurisdiction and venue

requirements are often easily satisfied. As a result, many
14 Nos. 09-2280, 09-3020

plaintiffs are able to choose from among several forums.

Ordinarily, these plaintiffs will select that forum whose

choice-of-law rules are most advantageous. Thus, if the

possibility of an unfavorable change in substantive law

is given substantial weight in the forum non conveniens

inquiry, dismissal would rarely be proper.” 454 U.S. at 250.

But the cases suggest that if the plaintiff’s suit would be

time-barred in the alternative forum, his remedy there

is inadequate—is no remedy at all, in a practical

sense—and in such a case dismissal on grounds of forum

non conveniens should be denied unless the defendant

agrees to waive the statute of limitations in that forum

and the waiver would be enforced there. Norex Petroleum

Ltd. v. Access Industries, Inc., 416 F.3d 146, 159 (2d Cir.

2005); Bank of Credit & Commerce Int’l (Overseas) Ltd. v. Bank

of Pakistan, 273 F.3d 241, 246-47 (2d Cir. 2001); Mercier v.

Sheraton Int’l, Inc., 935 F.2d 419, 426 (1st Cir. 1991);

Kontoulas v. A.H. Robins Co., 745 F.2d 312, 316 (4th Cir.

1984); but see Yavuz v. 61 MM, Ltd., 576 F.3d 1166,

1182 (10th Cir. 2009). There is an exception, however, for

cases in which a plaintiff seeks to defeat dismissal by

waiting until the statute of limitations in the alternative forum has expired and then filing suit in his preferred forum (with the longer limitations period) and

arguing that the alternative forum is inadequate. Compania

Naviera Joanna SA v. Koninklijke Boskalis Westminster

NV, 569 F.3d 189, 202-03 (4th Cir. 2009); cf. In re

Bridgestone/Firestone, Inc., 420 F.3d 702, 705-07 (7th Cir.

2005). That is different from the case in which as a consequence of delays inherent in litigation the defendant

has acquired an airtight defense of untimeliness in the
Nos. 09-2280, 09-3020 15

alternative forum since the litigation began. See Aguinda

v. Texaco, Inc., 303 F.3d 470, 475, 478-79 (2d Cir. 2002). The

basis for dismissal on grounds of forum non conveniens

should be the superior convenience of the alternative

forum rather than a difference in substantive law that

spells doom for the plaintiff’s case if it is sent there.

The exception is inapplicable in this case. But this can’t

help Huang. If her claim is time-barred in Taiwan, it

is time-barred in California because, as we know, the

California courts would apply the Taiwanese limitations

period to a tort claim by a Taiwanese injured in Taiwan.

So even if, as she fears, something in Taiwan’s statute

of limitations will bar her claim if she is shunted to

a Taiwanese court, that something would be applied by

a California court to bar a suit in California.

We can imagine a case in which the court chosen by

the plaintiff has a longer statute of limitations than

the court preferred by the defendant and would not

apply the other jurisdiction’s shorter statute. Then dismissal on grounds of forum non conveniens would be

tantamount to dismissal on the merits, and if so it would

matter what the thinking behind the shorter statute of

limitations was. Suppose it was purely procedural

or institutional—the jurisdiction with the shorter limitations period lacked confidence that its courts could

handle stale evidence but this misgiving was not shared

by the court in which the plaintiff had sued. Then no

jurisdiction’s policy would be served by sending the

plaintiff to a court in which his case would be doomed.

This case is different because the shorter statute (shorter
16 Nos. 09-2280, 09-3020

because the statute of repose caps the conventional

statute of limitations that begins to run upon discovery)

expresses a substantive policy that the plaintiff is trying

to avoid. Refusing to invoke forum non conveniens

would give the plaintiff a gratuitous substantive advantage. Convenience favors Taiwan and the statute of limitations applicable to this suit will be the same whether

the case is tried there or in California.

AFFIRMED.

3-26-10