Opinion
Civil Action Number 99C-04-361-JOH.
Submitted: May 11, 2000.
Decided. May 16, 2000.
Upon Application for Certification of an interlocutory Appeal of Defendants Les Laboratoires Sender and Sender Amerique- GRANTED
L. Vincent Ramunno, Esq., of Ramunno Ramunno, P.A., attorney for plaintiffs
Mark Minuti, Esq., of Saul, Ewing, Remick Saul, LLP, attorney for defendants Les Laboratoires Servier and Servier Amerique
MEMORANDUM OPINION
Two of the defendants in this case, Les Laboratoires Servier and Servier Amerique [the "French defendants"], have applied for certification of an interlocutory appeal. Both are French corporations headquartered in Paris. Among the other defendants, two are Delaware citizens, one a doctor and the other a corporation.
This is a "diet pill" products liability case in which the plaintiffs seek damages for personal injury. Plaintiff Evelyn Wright was prescribed diet medication manufactured and/or distributed by the American corporate defendants in this case. Those entities had a license agreement with the French defendants to manufacture the diet medication developed by the French defendants. The diet pills were sold and prescribed in all 50 states. Neither French defendant owned property or assets in Delaware nor had any employees or officers here.
The plaintiffs followed the service of process procedures under Delaware's non-motor vehicle Long Arm Statute. Service was made on the Delaware Secretary of State and then copies of the complaint were sent by registered mail to each French defendant at their headquarters in France. The French defendants sought dismissal of the action against them arguing (1) the service of process was ineffective because it was not done according to the provisions of the Hague Service Convention, (2) Delaware could not properly obtain long arm jurisdiction over them and (3) on the basis of forum non conveniens, this Court was not the proper court to consider this case.
In an opinion detailing many other facts about the relationship of these French defendants to each other and to the corporate defendants in this case, this Court denied the French defendants' motion seeking dismissal. This Court believed the French defendants raised two issues of discrete first impression.
Wright v. American Home Products, et al., Del.Super., C.A. No. 99C-04-361, Herlihy, J. (April 20, 2000).
The first invoked the service of process issue. In an earlier opinion of this Court in Quinn v. Keinicke, this Court determined that utilization of the service procedures in the motor vehicle Long Arm Statute satisfied the Hague Service Convention. In that case, however, the foreign defendant was in Delaware when the act occurred giving rise to the claim and jurisdiction. In this case, neither French defendant was ever directly in Delaware. They argued that the Hague Service Convention required service on them and not notice by mailing. Because two different, albeit, related Long Arm Statutes are involved and because of the factual differences, this Court viewed the service of process issue as novel.
Del.Super., 700 A.2d 147 (1996).
10 DeL.C. § 3112.
The French defendants argued that this Court could not exercise personal jurisdiction over them under the Long Arm Statute implicated in this case. In addition to their non-presence in this State, they pointed to their agreement with various American entities licensing those entitles to manufacture the diet medication they had developed. In rejecting the French defendants' arguments, this Court relied to a large extent on another opinion of this Court in Boone v. Oy Partek. The defendant seeking dismissal in Boone was a Finnish corporation which manufactured asbestos in Finland which was sold in Delaware through a U.S. distributor. These French defendants, as noted, did not manufacture the diet pills in France. The pills were produced in the United States. By virtue of that fact and the licensing agreement, this Court viewed the circumstances as raising a discrete issue of first impression.
Del.Super., 724 A.2d 1150 (1997); aff'd. Del.Supr., No. 409, 1997, Holland, J. (February 12, 1998) (ORDER); cert. denied 524 U.S. 939, 118 S.Ct. 2345, 141 L.Ed 2d 716 (1998).
While the French defendants also seek to appeal this Court's rejection of their forum non conveniens arguments, this Court does not consider the issues raised to be ones of first impression.
The French defendants have raised some or all of these same issues in other diet pill litigation, including Multi District Litigation in the United States District Court of the Eastern District of Pennsylvania. With the exception of a New York Supreme Court opinion, their arguments have so far been rejected. Despite that, however, this Court believes the service of process and personal jurisdiction issues meet the criteria of Supreme Court Rule 42. This Court's opinion keeps these defendants in this case and establishes certain legal rights by the plaintiffs over them.
There is no trial date set yet. There does not appear to have been much discovery in this case. There was, however, a lot of material submitted by the plaintiffs and the French defendants as part of their briefs on the issues raised. Much of it came from discovery in other litigation in which the French defendants have been or are now involved.
The plaintiffs oppose the French defendants' application. This Court, however, believes the application should be granted.
CONCLUSION
For the reasons stated herein, the application for certification of an interlocutory appeal by Les Laboratoires Servier and Servier Amerique of this Court's decision of April 20, 2000 is GRANTED.
IT IS SO ORDERED.